September 5, 1979
Page 22922
Mr. MUSKIE. Mr. President, I am a longtime supporter of public schools and of the philosophy of a common educational experience for the majority in our Nation. But my support of this common and basic American tradition does not preclude my recognizing the essential role played by nonpublic schools in our Nation and our history. The pluralistic values which flourish in our society have been largely fostered through the contributions of nonpublic schools.
Private schools give a breadth to our national environment that is substantively and philosophically essential to our survival as an open society.
These schools provide an option for families who want to maintain and strengthen a religious faith — an option I exercised in my family. They provide an option to families who believe the maintenance of ethical values is an affirmative pursuit. And, conditions in some public schools have caused some of our people to conclude that private schools are an option for the basic education of their children.
I have been particularly impressed with the Christian school movement in the country today. I have had the opportunity to witness for myself the contributions of the dedicated men and women who work in this field. And I came away impressed.
They have helped maintain and enhance an environment in which our most basic traditional values are nurtured. They are continuing and expanding the American tradition of pluralism through their support of alternative schooling options,
To cite a specific example with which I am personally familiar, I have been strongly and most favorably impressed by the Bangor Christian School operated in Maine by the Reverend Herman Frankland. This institution is a vital component of our State's educational opportunities. It combines a depth of parental involvement and concern with an ability to reach and motivate students that is unique in my experience.
I would be strongly opposed to any actions by Congress or the executive branch which might undermine the kind of positive educational experience the Reverend Frankland has worked to establish.
In fact, last October I joined a number of my colleagues in conveying to the Internal Revenue Service my concern that legitimate private schools — operated without intent to discriminate — should not be forced to justify their existence by overly broad Government regulations.
My concerns in that respect remain undiminished.
But in that letter, I and my colleagues also reaffirmed our commitment to the equitable and effective enforcement of nondiscrimination guidelines as a condition of tax-exempt status.
I ask unanimous consent that the text of the letter in question be printed in the RECORD.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
COMMITTEE ON APPROPRIATIONS,
Washington, D.C.,
October 14, 1978.
Mr. JEROME KURTZ,
Commissioner,
Internal Revenue Service,
Washington, D.C.
DEAR COMMISSIONER KURTZ: In the Matter of Comments on Proposed Revenue Procedure on Private Tax-Exempt Schools, printed at 43 Fed. Reg. 37296, August 22, 1978.
The undersigned United States Senators have read and reviewed your Proposed Revenue Procedure on Private Tax-Exempt Schools, and wish to submit this letter as our comments on the proposed procedure.
Our initial comment is a simple congratulation to you and the Department of the Treasury for responding in a forthright and courageous manner to the proliferation of "white-flight" private schools established to circumvent desegregation plans. We feel most strongly that such institutions represent an improper response to reasonable desegregation efforts. The Federal government should neither encourage nor passively support the private or parochial schools created expressly to accommodate those opposed to racial desegregation.
Furthermore, we agree with the rationale expressed by the Federal courts, that underlies your proposed procedure. Federal tax exemptions and deductions under Section 501(c) (3) of the Internal Revenue Code, 26 U.S.C. § 501(c) (3), should not be available to institutions whose activities are contrary to the well-settled federal public policy to refuse governmental support for any form of racial segregation.
We believe, however, that your proposed procedure and guidelines for determining whether an individual school has racially discriminatory policies are overly broad, and could injure many institutions that are totally innocent of the anti-desegregation activities which the procedures are designed to reach.
The presumption in sections 3.03 and 4.02 of the proposed procedure, that racial discrimination by a school exists if it (1) was formed or substantially expanded at the time of desegregation of public schools and (2) has an "insignificant number of minority students", casts a very wide net that will undoubtedly bring in a large number of non-"white-flight"schools. The listed actions which a school can take to rebut this presumption and to demonstrate "operation in good faith" simply do not take into account the complex situations of many innocent private and parochial institutions. The factors, in many cases, cannot be satisfied by, or will cause undue hardship to, schools that do not practice racial discrimination.
Again, we commend you for your efforts to deal with this problem of major national concern, and hope that we can help you in formulating the most effective and fairest procedure to accomplish our mutual goal.
Sincerely,
THOMAS F. EAGLETON.
JOHN H. CHAFEE.
EDMUND S. MUSKIE.
HENRY BELLMON
JAMES B. PEARSON.
Mr. MUSKIE. On the question of non-discrimination, the law, the courts, and the Constitution are clear. Equal protection under law cannot be denied any American on the basis of race. That principle has been reaffirmed since the 1954 Brown against Board of Education decision and, in my mind, subsequent events have not weakened its force.
The basic principle of the essential worth of all human beings is enshrined in every major religious faith. And it is a cornerstone of our Constitution.
No less important to our national life is the fundamental protection accorded religious liberties under the Constitution. These protections have put into practice a principle we all recognize as crucial to any theory of civilized human life. They have strengthened our Nation.
Parents whose children are enrolled in religious schools are rightly concerned that their free choice of an educational institution should be protected against unwarranted intrusion by any Government agency.
Our Constitution guarantees that kind of protection.
And it is at that point that these two protections in the Constitution buttress each other. The denial of basic choices or opportunities to any individual or any group in our society is intolerable. And any Government action which sanctions such a denial is intolerable.
It is precisely because of the importance of maintaining equal protection for all Americans that I rise today in support of the Javits amendment to strike the language now in the bill.
The language now in the bill cannot override the Internal Revenue Service's obligation to uphold the law. And the fundamental law at stake in this instance centers on the question of equal protection. The Service is not being prohibited from intruding on religious liberties or systems of faith, because the Service has made no effort to move in that direction. In fact, in revising its regulations last year, the Service acted to meet the legitimate objections of those — including myself — who want to protect the role of private educational institutions.
Because the Service recognized that two fundamental liberties are involved in this instance, it took particular care to define and limit the scope of its efforts in pursuit of one goal so that it would not, inadvertently, intrude on the other.
Mr. President, we have the language which Senator JAVITS seeks to strike apparently in conflict between two fundamental liberties: equal protection of the laws and religious liberties.
When two fundamental liberties appear to conflict, we cannot elevate one consideration at the expense of the other. In this instance, the Service made an effort to balance the legitimate claims of both liberties and to reach a consensus which would offend neither.
But the language now in the bill seeks to elevate, in an absolute manner, the claims of one fundamental right over another, equally fundamental. Such rights are not divisible. Nor can one be granted at the expense of the other without danger to both.
It is on this basis that I am concerned about the implications of the language in this bill which would prohibit the Service from implementing its regulations.
The Service is operating under a court injunction to act affirmatively and deny tax-exempt status to schools that discriminate. The Supreme Court has declined to override that injunction. And the Congress has not chosen to do so.
If Congress believes that appropriate action in this field lies in some direction other than that taken by the Service, Congress should make the appropriate determination and point out the correct direction. We should not preempt the considered action of the Service on the basis of a rider to an appropriations bill.
In addition to pursuing its court-ordered mandate, the Service has acted to assure that its regulations would have little impact on the vast majority of the 18,000 private schools in the country. No Maine school, for instance, would be affected by these regulations. The Service has succinctly delineated a series of inclusive criteria which must be met before a school's tax status could even be reviewed.
The Service took this action in response to communications, such as this one in which I joined with my colleagues, that were sent to the Service expressing concern about the Service's then procedures and guidelines.
The flexibility in the revised regulations is not a license for agents to indiscriminately act against private schools. And the requirement for national office review of any action under the regulations helps insure that enforcement will be even-handed. The development of uniform standards and their uniform enforcement — which this regulation requires — provides a degree of certainty that most private schools welcome.
I will, accordingly, vote to delete the prohibitionary language from the bill. It serves neither the interests of religious liberty nor the goal of assuring equal protection to all our people.
I apologize to my good friend from New York for having been detained off the floor and being unable to come to the floor until this time.
Mr. JAVITS. Your friend from New York is delighted to see you at this time.