House Unit Urged to Assure Rights of Jewish Day Schools

Two spokesmen for different groups of Jewish organizations have testified before a House subcommittee in support of action to assure that religious schools are protected in their right to accept only students of their own religious faith without risking loss of tax exempt status but they differed on legislative approaches to that goal.

The spokesmen were Martin Cowan, secretary of the National Jewish Commission on Law and Public Affairs (COLPA), and Nathan Z. Dershowitz, director of the Commission on Law, Social Action and Urban Affairs of the American Jewish Congress. The testimony was presented to the Subcommittee on Legislative Oversight of the House Ways and Means Committee in hearings which began Tuesday and conclude tomorrow. Cowan testified yesterday. The statement by Dershowitz was made in testimony submitted today to the subcommittee.

The hearings were the latest in a series of developments involving private religious schools and the Internal Revenue Service (IRS), which has been making new efforts to identify more effectively non-public schools which practice racially discriminatory policies, for which they are subject to loss of tax exempt status. The subcommittee called the hearings to determine whether the IRS in its various steps to find racially discriminatory private schools, had overstepped its authority.

Cowan testified for Torah Umesorah, the National Society for Hebrew Day Schools; the Association of Advanced Rabbis and Talmudic Schools; the Union of Orthodox Rabbis of the United States and Canada; the National Council of Young Israel; Agudath Israel of America; Poole Agudath Israel; Rabbinical Council of America; Rabbinical Alliance of America; Religious Zionists of America; and the Union of Orthodox Jewish Congregations of America.

Dershowitz testified for the A JCongress, the American Association for Jewish Education, the Council of Jewish Federations, the National Jewish Community Relations Advisory Council and the Synagogue Council of America.

BACKGROUND OF THE ISSUE

The issue dates back to July, 1970 when, the IRS issued guidelines reportedly aimed at “while academies” organized by parents apposed to attendance by their children at integrated public schools. The exemption of Jewish and other religious schools from the guidelines — which basically required private schools to prove absence of racially discriminatory admission policies — was affirmed by a 1975 revision. It specified that “a school that selects students on the basis of membership in a religious denomination or unit thereof will not be deemed to have a discriminatory policy if membership in the denomination or unit is open to all on a racially non-discriminatory basis.”

But when the IRS published late in 1978 new revised proposals, concern was widely expressed by non-public school organizations and religious groups over apparent ambiguities in the revised proposals relative to religious schools. In response to thousands of complaints, the IRS held three days of hearings last December at which representatives testified for Jewish and Christian schools. Cowan and Dershowitz testified at those hearings, each for the same organizations represented in their testimony to the House subcommittee.

The 1978 proposed revisions were aimed at private schools organized in areas in which public schools are being or have been integrated. A private school in such a school district could, under the 1978 proposed revisions, be presumed by the IRS to be discriminatory if its minority enrollment was not at least-20 percent of the proportion of the minority school age population in the area of such a public school, or if there had been a substantial increase in its while student enrollment which might be related to the integration of the local public school.

Cowan and Dershowitz testified at the IRS hearings that the absence of Black; Hispanic and other minority group children from Jewish religious schools simply reflected the fact that very few such minority children are Jewish. Following the criticism, both at the IRS hearings and by mail, IRS Commissioner Jerome Kurtz invited six private school agencies to meet with him on Jan. 11.

Kurtz indicated at the Jan. 11 meeting, which included Jewish and non-Jewish agencies, that ### IRS was determined to avoid any adverse effect on religious schools and added that, while the IRS intended to retain a statistical yardstick, it would not necessarily be 20 percent. But when the IRS published a new set of guideline revision proposals in the Feb. 9 Federal Register, the 20 percent yardstick was retained. April 20 was listed as the dead line for “public comment” on the newest proposals.

URGES PROTECTION. OF FIRST AMENDMENT RIGHTS

Cowan testified yesterday before the House subcommittee that Congress should consider legislation to assure that religious schools were protected in their “First Amendment” rights to accept only students of their own religious faith and to accept all such students — including transferees from public schools — without endangering their tax exempt status.

Cowan said that Jewish religious schools would be unable to meet the 20 percent test because they admit only Jewish students, which he claimed was a constitutional right under the First Amendment, and there are very few Jews in this country who are Black, Hispanic or members of other minority groups.

He told the subcommittee that COLPA had proposed to the IRS that while the Jewish organizations opposed numerical tests in general, because they might have the effect of quotas, the IRS applicable ratio, if it was to be applied, should be one relative to the proportion of Blacks and other minority members in the affected community who are Jews, and not the proportion of all minority group members. The IRS rejected that suggestion in its February guideline revision proposals.

Cowan asserted that the IRS was infringing on the religious rights of Jews by basing its 20 percent yardstick on the proportion of all local minority group members, rather than on the proportion of Jews among such minorities. He contended that the IRS could not enforce public school desegregation by “infringing” on the First Amendment rights of religious schools to accept only students of their own religious faith and to accept all such students. He argued that in situations in which Jewish children transferred from public to religious schools, a similar constitutional right was involved, a position the IRS rejects.

SUGGESTS CONGRESS SHOULD POSTPONE ACTION

Dershowitz suggested, in his testimony, that Congress should await the results of public hearings being held by the IRS instead of passing a bill, H. R. 214, that would bar the IRS from revoking the tax exemption status of racially-discriminatory private schools. H.R. 214 was introduced Jan. 19 by Rep. Philip Crane (R.III.) but no hearings have as yet been held on it.

Dershowitz cautioned against barring the IRS from revoking the tax exempt status of discriminatory private schools because that would “be perceived in minority communities as a signal to private schools that they may continue, and are in fact encouraged, to discriminate without fear of losing their tax exemption”.

He reiterated the positions of both groups of Jewish organizations that lifting the tax exemption of private schools solely on racially-imbalanced enrollments would “unfairly burden” Jewish religious schools because there are few Jews among American minorities. He declared that “although Judaism worldwide is a color-blind faith and there are Oriental Jews and Black Jews, as well as Caucasian Jews, the fact remains that few non Caucasian Jews have settled in America.”