Bob Jones University v. Johnson

• Citation: 396 F. Supp. 597
• Decision Date: 25 July 1974
• Docket Number: Civ. A. No. 72-1325.
• Parties: BOB JONES UNIVERSITY et al., Plaintiff, v. Donald E. JOHNSON, Administrator of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of South Carolina

396 F. Supp. 597

BOB JONES UNIVERSITY et al., Plaintiff, v. Donald E. JOHNSON, Administrator of Veterans Affairs, Defendant.

Civ. A. No. 72-1325.

United States District Court, D. South Carolina, Greenville Division.

July 25, 1974.

J. D. Todd, Jr., and O. Jack Taylor, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, S. C., for plaintiffs.

Robert N. Dempsey, Civil Rights Div., U. S. Dept. of Justice, and John K. Grisso, U. S. Atty., D. S. C., Columbia, S. C., for defendant.

ORDER

HEMPHILL, District Judge.

By complaint filed October 24, 1972 Bob Jones University (hereinafter called Bob Jones), an eleemosynary corporation of the State of South Carolina, and Paul L. Wright, a veteran of service to his country and admittedly entitled to veterans' benefits, seek judicial review of a final determination of that sprawling bureaucracy of the federal government known as the Veterans Administration (hereinafter called VA). On September 12, 1972, an Administrative Law Judge of the Department of Health, Education and Welfare, issued a 31-page order terminating the right of eligible veterans seeking education at Bob Jones to receive veterans' benefits. The basis of the decision, which affects eligible veterans and their dependents, was the finding that Bob Jones failed to comply with Title VI of the Civil Rights Act of 1964¹, particularly Section 601 thereof², and the VA regulations³ implementing the statute requiring non-discrimination in federally assisted programs. The order was to have prospective effect only, applying to veterans whose enrollment was not approved prior to the date of the order. The fact that the men and women had served their country, often with risk of their lives, was ignored, as was any desire one might have to attend Bob Jones as a matter of personal preference or convenience. Thus, freedom was sent to the guillotine in the name of freedom. But such are the times in which we live.

The proceedings below began with the transmittal on February 9, 1972, of a notice of opportunity for hearing by the VA to Bob Jones.⁴ The notice was sent as a result of Bob Jones' alleged continuing refusal to sign an assurance of compliance with Title VI, required by the VA Title VI regulations as a condition of federal assistance.⁵ An evidentiary hearing followed on June 26, 1972 resulting in the September 12 order terminating all VA assistance to Bob Jones⁶ and denying the innocent eligible veterans of future application the right to assistance in attending the school of their choice.

Final action was taken by the defendant Administrator of the VA on November 22, 1972 by his approval of the decision and his transmittal of the requisite information reports to the House and Senate Committees on Veterans Affairs.⁷

On October 24, 1972, the university appealed the Administrator's final decision to this court and was joined in the appeal by Paul L. Wright, suing as veteran and taxpayer. Plaintiff Wright's taxpayer class action (Count Three of the Complaint) was dismissed by the court on May 9, 1973, because plaintiff Wright lacked standing and the requisite adversity required under Article III to constitute a case or controversy.

Bob Jones and plaintiff Wright allege in their complaint that the VA cash benefits used by veterans attending the university do not constitute federal assistance to a university within the meaning of Title VI; that the termination of these benefits is a violation of the Freedom of Association and the Full Exercise Clauses of the First Amendment; that if the VA benefits to veterans are construed as assistance to a university, then such assistance violates the Establishment Clause of the First Amendment.

The Administrator agreed to stay the mandate of the November 22, 1972 order pending a decision on the merits by this court. That agreement is ratified in the January 3, 1973 order of the court.

UNDISPUTED FACTS

Bob Jones carries on religious⁸ and educational activities in Greenville, South Carolina, enrolling approximately 4,500 students at the college level and employing a faculty and staff of 650. It is a fundamentalistic religious school whose educational activities are permeated with its religious beliefs and practices. For example: all university activities, including classroom instruction, are begun and ended with prayer; faculty and students are expected to conform to these practices.

Among Bob Jones' deep religious convictions is the belief that the Bible forbids the intermarriage of the races. Bob Jones has exercised this religious belief since its inception in 1929 by denying admission to unmarried nonwhites and providing for expulsion of students who date members of any race other than their own. The policy is based on the belief that segregation of the races is mandated by God, and that the integration of the student body would lead to interracial marriage thereby violating God's command. This longstanding policy, unlike the other basic precepts of Bob Jones, is not set forth in the university's corporate charter, by-laws, catalogues or other publications.⁹

Since its inception, Bob Jones has consistently refused to accept funds or grants from any government, state, federal or local, because it believes such acceptance would cause the surrender of its religious principles and infringe upon its right to operate the school in harmony with such principles. Defendant asserts that the enrollment of veterans receiving VA benefits constitutes an acceptance of federal funds, by the university to such an extent as to require Bob Jones to change its admissions policy in direct violation of its religious beliefs and practices. Bob Jones disagrees and insists that it is not a recipient of federal financial assistance as contemplated by Title VI of the Civil Rights Act of 1964.

From August 7, 1947, to November 22, 1972, Bob Jones was a VA approved institution for the education of veterans subsidized under the VA administered educational benefits programs. During the 1971-72 academic year, 221 of the 4,509 students received benefits of approximately $397,800 under these federal assistance programs.

The statutory framework for the transmittal of federal funds to eligible veterans requires their enrollment at an approved school.¹⁰ Under the approval procedure, 38 U.S.C. § 1771(a) authorizes the chief executive of each state to select a state agency to certify courses of education as suitable for the education of veterans, utilizing federal criteria.¹¹ Here the relevant SAA is the South Carolina State Board of Education. Bob Jones initially applied for approval to the VA in 1947 under previous statutory requirements and was approved effective September 1, 1947. It applied for approval to the SAA in 1952 under current statutory requirements and was an approved school from that time until the VA Administrator's final order of termination issued on November 22, 1972.

In addition to its approval function, the SAA is also required to make inspection and supervisory visits to educational institutions within its jurisdiction pursuant to 38 C.F.R. § 21.4151(b), and the VA is authorized to enter into contracts with the SAA to pay for travel, salary and administrative expenses for such work. 38 U.S.C. § 1774. The South Carolina SAA performs such services for the VA on a reimbursable basis.

An eligible veteran may only receive VA educational benefits while enrolled in an approved program of education at an approved school. The educational benefits he receives are cash payments (maximum now of $175.00) flowing from the VA directly to the veteran on a monthly basis to meet the expenses of subsistence, tuition fees, supplies, books, equipment and other costs. 38 U.S.C. § 1681(a) and § 1731(a).¹² Participating educational institutions, such as Bob Jones, are required to maintain conformity with the federal requirements for approval status and to report to the VA the admission of a veteran and his schedule of courses as well as any changes in his status or hours of credit in approved courses. 38 U.S.C. § 1681, 38 C.F.R. § 21.4203. The VA reimburses participating schools for the administrative expenses incurred in the reporting procedure and in the 1971-72 academic year paid $714.00 to Bob Jones for such expenses. 38 U.S.C. § 1784 and § 1785.

FINDINGS OF FACT

1. Bob Jones is a Recipient of Federal Assistance Within the Meaning of Title VI of the Civil Rights Act of 1964

Section 601 of Title VI expressly prohibits discrimination on grounds of race, color or national origin in "any program or activity receiving Federal financial assistance". 42 U.S.C. § 2000d.¹³ The statute also directs the federal agency extending the assistance to effectuate the provisions of Section 601 with respect to "any program or activity, by way of grant, loan or contract other than a contract of insurance or guaranty". 42 U.S.C. § 2000d-1.

Pursuant to this congressional mandate, the VA has published its Title VI regulations, 38 C.F.R. § 18 et seq. In applying the regulations, the VA has determined that the educational benefits statutes which it administers are covered by Title VI,¹⁴ and that the educational institutions schooling veterans subsidized under these statutes are recipients of federal financial assistance within the meaning of Title VI.¹⁵ Accordingly, Bob Jones, in common with all other participating schools, is prohibited by Section 601 from discriminating on the basis of race with respect to its federally assisted educational programs.

Plaintiffs argue that because the federal cash payments go directly to the veteran, it is the veteran who is the beneficiary of the VA programs, not Bob Jones. The method of payment does not determine the result; the literal language of Section 601 requires only federal assistance—not payment—to a program or activity for Title VI to attach. The appropriate questions are (1) whether the federally subsidized veteran participates in a "program or activity" and, if so, (2)...