Legislation Class Notes 4/14/04


More on Bob Jones


What’s the importance to the majority of the enactment of § 501 (i)?  Has Congress acquiesced in the anti-discriminatory position taken by the IRS in 1970?  The best evidence in legislative history terms from the majority’s point of view is that both the House and Senate reports accompanying the § 501 (i) provision cite Green v. Connally with approval.  That case established that discrimination on account of race is inconsistent with an educational institution’s tax-exempt status.


Why didn’t the Congress act to actually change the statute?  Who is in favor of the majority?  Did Congress acquiesce?  Should that acquiescence be given force by the Court?  Congress had this high on its radar screen for 12 years, but didn’t act.  Is this an example of “positive inaction”?


Two different kinds of inaction have different amounts of value?  Why might you value one more than another?  How do we differentiate?  There are thousands of bills introduced into the legislative process.  Things happen, things don’t happen, but the Court puts a lot of weight on this particular instance of inaction.  How come?  What are we assuming is true for a failure to change a ruling that’s been reviewed in committee or hearings 12 times in 15 years as opposed to a failure to change a ruling that has no committee hearing or anything else?  We assume that the leaders who are involved in processing legislation know about it.  If it’s come through committees, then the leaders know it’s going on.  Legislative inaction is a stable part of the process.  More stuff doesn’t happen than stuff that does happen.  People introduce bills upsetting the status quo all the time!  If these bills don’t get taken up by a committee, you can’t assume that this is an endorsement of the status quo.


The ruling is correct on its merits: the tax-exempt status mustn’t operate against public policy.  But what is public policy in this area?  Does public policy eliminate all discrimination in education?  Does the Constitution prohibit racial discrimination in private education?  Who is being regulated under the Constitution?  It’s the government!  No government can deny equal protection or due process of law.  Private individuals are not regulated by the Fourteenth Amendment!  You could decide that any time there are tax benefits or burdens, there is state action.  Then you could possibly have a constitutional challenge to every form of tax benefit or burden that exists!  In the context of education alone, we know that the government doesn’t regulate private institutions the way that they regulate public institutions.


So then we have these federal statutes.  We have the Civil Rights Act, the Voting Rights Act, plus some executive orders.  Does the Court suggest that any of these laws prohibit or restrict racial discrimination by private schools?  We’re not talking about policy, we’re talking about positive law.  The Constitution doesn’t protect minorities or women from being discriminated against in private educational institutions.  None of the statutes mentioned prohibits racial discrimination in private education.


What else is in the 1964 Civil Rights Act besides Title IV and VI?  What else have we studied?  I dunno.  We’ve studied Title VII, which deals with employment.  Who does that Title affect?  This Title talks about private employees.  This is the biggest civil rights statute of the 20th century.  Congress doesn’t include private actors in some of the Titles.  The Congress insists on a government axis in education that it did not insist on for employment.  You can argue that Congress knows how to ban private discrimination by private entities but chose not to do so.  The public policy we’re trying to build does not “jump off the page” of the Civil Rights Act.


The Supreme Court is writing for the history books and not just for the case books and the reporter.  The Court insists on resolving this in the broadest terms and not just in narrow legal terms.  There could have been arguments crafted differently, but the Court isn’t doing it.  You might criticize it on legislative inaction terms.


What’s the difference between Moragne and this situation?  The previous situation was a common law situation, but this is a statutory situation.  We have a canon that the Court could have used, which is the canon to avoid constitutional problems.  How could you build an argument for the majority based on that canon?  If you’re going to avoid the constitutional problem, you would try to construe tax-exempt status as equivalent to a federal grant.  In order to avoid that, we will simply decide that when the government grants tax-exempt status, it can’t do it for anything that the government itself couldn’t have engaged in.  Would that be fair?  When the Court is recrafting a statute, it’s doing it because it’s trying to avoid a constitutional issue.  The courts have choices in situations like this and could have gone a more “lawyerly” way.  But in this case, they are writing on a much more expansive “palette”.


The “subterfuge” case study


The ADEA is first enacted in 1967.  It is first interpreted in 1977 by the Supreme Court in McMahon.  Congress, displeased with the decision, amends the statute.  Then there’s another Supreme Court case and another amendment.  There’s a big debate over the word “subterfuge”!  Subterfuge is not allowed.  But what is it?  The Court says that something that was done before the statute was enacted can’t be considered a subterfuge to avoid a statute that didn’t yet exist.


You can’t discriminate on the basis of age.  Is there language in the text that suggests the Congress was focused on the hiring issue rather than the issue of preventing termination?  They want “jobs, jobs, jobs” for old people!  What about the legislative history?  How does that reinforce this view?  Senator Javits says that he wants to increase hiring of older people.  We need to find specific reference points.  He says something about “a national policy” about hiring old people.  We want a magic bullet phrase?  Eureka!  There is a statement from the committee report that says that the key point of the bill is hiring!  If we’re trying to promote hiring, how do we feel about retiring?  What Javits is saying is that we need a broad exemption because we don’t want to interfere with hiring.  He says that we want to get people in the workforce, even at some cost in terms of benefits.


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