In my last post I criticized the notion that Constitutional rights could be lost through a version of adverse possession, i.e., that the rights disappear if they’re trespassed upon long enough. Now friend and SuperBlogger Eugene Volokh has mentioned the Bob Jones University case (albeit in another context), giving me an opening to include one of my favorite examples of adverse possession at work.
Most of you will remember Bob Jones from the flap caused during the last South Carolina primary when candidate, now president, Bush spoke there, which led to news stories of anti-Catholic sentiments associated with the fundamentalist Christian college. But Bob Jones’s constitutional notoriety began a generation earlier. It could have continued to joust against the windmills of modernity in welcome, well-deserved obscurity had it not gotten drawn into the civil rights maelstrom several decades ago. Its problem was not its anti-Catholicism. Nor was it, as many reports asserted, discrimination in admissions. The culprit was its policy against interracial dating, derived, it said, from its fundamentalist theology.
In response to the “segregation academies” that sprouted across the South after the Brown desegregation decision, the IRS launched a campaign to revoke the tax exemptions of discriminatory private schools. One obstacle was that many of these schools were so hostile to blacks that they didn’t need clear, and hence provable, discriminatory policies. At Bob Jones, however (whose origins lay not in response to Brown but to the anti-fundamentalism stirred up by the Scopes trial in the 1920s), the clear policy against interracial dating seemed to present a tempting target. Revoking Bob Jones’s tax exemption, however, proved not to be so easy, and at some point in the future the way it was done conceivably could have some unintended but dramatic consequences.
Back in the 1970s the IRS ruled that BJU’s discriminatory dating policy was “against public policy,” and therefore the school could not be charitable and thus could not qualify for an exemption. The difficulty with this ruling lay in the fact that Section 501(c)(3) of the tax code provides exemptions for “religious, charitable, or educational” institutions, and BJU is and was both religious and educational. No problem, said the IRS, which deconstructed the tax code so that “or” was read as “and,” and BJU’s exemption was revoked because it was deemed not charitable, even though it was clearly both religious and educational.
Some in Congress objected to the IRS twisting the tax code to reach a desired result. Others objected to giving the IRS unbridled discretion to decide which social and especially religious practices were “against public policy.” Since BJU’s opposition to interracial dating was derived from its theology, could the IRS use the powerful threat of revoking tax exemptions to force practices derived from the teachings of other churches, such as strictures against homosexuality, to conform to “public policy”? Still others worried that in the absence of provable discriminatory admissions policies the IRS would inevitably force schools to employ de facto quotas in order to prove they were not discriminating.
These concerns were mainly limited to conservatives, although Slate Magazine, following up on charges leveled by Bill Bradley in his primary debate with Al Gore at the Apollo Theater in Harlem, revealed that Gore voted with this group of IRS critics five times when he was in Congress. (In one of the more humorous episodes of the last campaign, Gore defended those votes as “anti-quota,” a curious response from a politician who vociferously defends every racial preference program and policy and who apparently has never seen another one that looks like a quota.) Few wanted to be seen as defenders of discrimination, however, and so Congress did not reverse the IRS’s revocation of Bob Jones’s exemption.
When the Supreme Court finally decided this matter in 1983, Congress’s acquiescence was held to justify the IRS ruling, with only Justice Rehnquist dissenting. Justice Powell, concurring, provided one of the finest examples on record of adverse possession at work. He indicated that the IRS’s revocation of Bob Jones’s tax exemption was in all likelihood unjustified when it occurred, but in the intervening years it took the matter to reach the Supreme Court (of which there were quite a few) the Congress could have reversed the IRS action if it chose to. Since it did not, the initial wrong had, over the years, become right. In other words, Powell’s position was that Bob Jones’s objection to the revocation of its exemption may well have been correct originally but had somehow become incorrect before it reached the Court because “there has been a decade of acceptance.” Of course, viewing Congress’s inaction as rewriting the tax code by default ignored the fundamental fact that Congress is only one part of the law-making process. Each house must approve legislation, but that legislation is not law until signed by the president, and no president in the 1980s — Reagan and Bush I — would have signed such a law.
That, as we historians say, is history. But what is to prevent a future IRS and Supreme Court, both scrupulously following Bob Jones v. United States, from holding that awarding benefits or burdens on the basis of race so violates both our core values and current public policy (the standard the IRS employed against Bob Jones) that any “religious, charitable, or educational” institution employing racial preferences cannot be charitable and thus should have its tax exemption revoked?