John Paul Stevens

“ A case in which it was proved that a segregated private school opened just as a nearby public school system began desegregating pursuant to court order, that the IRS knew the school did not admit blacks, and that the school prospered only as a result of favorable tax treatment, might be very different from one in which the plaintiff attempted to prove a nationwide policy and its effect. ”

“ The danger of the Court's approach is illustrated by its failure to provide any standards to guide courts in determining when it is appropriate to require a more rigorous redressability showing because of separation of powers concerns, or how redressability can be demonstrated in a case raising separation of power concerns. ”

“ Respondents do seek to restructure the IRS's mechanisms for enforcing the legal requirement that discriminatory institutions not receive tax-exempt status. Such restructuring would dramatically [p793] affect the way in which the IRS exercises its prosecutorial discretion. The Executive requires latitude to decide how best to enforce the law, and in general the Court may well be correct that the exercise of that discretion, especially in the tax context, is unchallengeable. ”

“ The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. ”

“ Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income. ”

“ Surely the question whether the Constitution or the Code limits enforcement discretion is one within the Judiciary's competence, and I do not believe that the question whether the law, as enunciated in Gilmore, Norwood, and Bob Jones, imposes such an obligation upon the IRS is so insubstantial that respondents' attempt to raise it should be defeated for lack of subject matter jurisdiction on the ground that it infringes the Executive's prerogatives. ”

“ This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has "a significant tendency to facilitate, reinforce, and support private discrimination." ”

“ Conversely, maintenance of these tax benefits makes an education in segregated private schools relatively more attractive by decreasing its cost. Accordingly, without tax-exempt status, private schools will either not be competitive in terms of cost or have to change their admissions policies, hence reducing their competitiveness for parents seeking "a racially segregated alternative" to public schools, which is what respondents have alleged many white parents in desegregating school districts seek. ”

“ However, while here the source of the causal nexus is the price that white parents must pay to obtain a segregated education, which is inextricably intertwined with the school's tax status, in Simon, the plaintiffs were seeking free care, which hospitals could decide not to provide for any number of reasons unrelated to their tax status. ”

“ A State's constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination. ”

“ Imposing an undefined but clearly more rigorous standard for redressability for reasons unrelated to the causal nexus between the injury and the challenged conduct [p792] can only encourage undisciplined, ad hoc litigation, a result that would be avoided if the Court straightforwardly considered the justiciability of the issues respondents seek to raise, rather than using those issues to obfuscate standing analysis. ”

“ Providing recreational facilities to de facto or de jure segregated private schools was inconsistent with that duty, because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system. ”

“ This kind of injury may be actionable whether it is caused by the exclusion of black children from public schools or by an official policy of encouraging white children to attend nonpublic [p784] schools. A subsidy for the withdrawal of a white child can have the same effect as a penalty for admitting a black child.
II In final analysis, the wrong respondents allege that the Government has committed is to subsidize the exodus of white children from schools that would otherwise be racially integrated. ”

“ If a plaintiff presents a nonjusticiable issue, or seeks relief that a court may not award, then its complaint should be dismissed for those reasons, and not because the plaintiff lacks a stake in obtaining that relief, and hence has no standing. ”

“ By recognizing these organizations as exempt from federal taxation, defendants facilitate their development, operation and expansion and the provision of racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems. ”

“ If racially discriminatory private schools lose the "cash grants" that flow from the operation of the statutes, the education they provide will become more expensive, and hence less of their services will be purchased. ”

“ We have held that, when a subsidy makes a given activity more or less expensive, injury can be fairly traced to the subsidy for purposes of standing analysis because of the resulting increase or decrease in the ability to engage in the activity. [3] Indeed, we have employed exactly this causation analysis in the same context at issue here — subsidies given private schools that practice racial discrimination. Thus, in Gilmore v. ”

“ The injury they identify — their children's diminished ability to receive an education in a racially integrated school — is, beyond any doubt, not only judicially cognizable but, as shown by cases from Brown v. ”