Legislation
Class Notes
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?