it's only the law
by Anthony Lewis
A THREE-JUDGE federal court, in
an opinion by a distinguished
judge, decides an important question
of federal law. The Supreme Court affirms the decision. Other courts follow
it. The federal government incorporates it in rules, and three presidents
enforce them over a 10-year period.
Then a new president reverses the
rules. He explains to a press confer-,
ence that he did so because they had
"no basis in the law.1'
That is what President Reagan said
at his press conference last week by.
way of explaining his decision to give
tax exemptions to schools and colleges
that discriminate against black
Americans. The only thing more
amazing than his explanation was the
reaction of the reporters in the room.
"The Internal Revenue Service had
actually formed a social law and was
enforcing that social law," Reagan
said. He was speaking of the IRS
rules, adopted during the Nixon
administration, against tax exemptions for discriminatory schools and
But the IRS framed those rules in
light of court decisions saying what
the law was The leading decision was
by the late Harold Leventhal. the highly respected judge of the US. Court of
Appeals in Washington. He concluded:
"Racially discriminatory private
schools are not entitled to the federal
tax exemption for charitable, educational institutions.*'
Reagan denied that any racism was
involved. He said he was opposed to
discrimination "at every fiber of my
But there is no doubt that racism
was the movinc fofce in the attempt to
reverse the rules against tax exemptions. Southern institutions that exclude or segregate blacks, notably
some connected with fundamentalist
churches, have been the voices demanding the change.
Rep. Trent Lott, R-Miss.. wrote the
president urging him to act and got
back his memo with a marginal note
bV Reagan saying "I think we
should"; Lott sent that to high Justice
Department and Treasury officials.
Another active figure was Sen. Strom
Thurmond, R-S.C, a trustee of Bob
Jones University in Greenville, S.C.
Bob Jones and Goldsboro Christian
Schools had tax cases that were the
The president said his action had
been "misinterpreted." He did not
really want to give tax exemptions to
racist schools, he said. All along he
had just wanted Congress to pass a
statute with explicit language forbidding the exemptions, so "that will be
the law of the land."
If you can believe that, you can believe anything. The Republican Party
platform of 1980 called for an end to
the tax rules "against independent
schools." Can anyone suppose that the
platform drafters wanted Congress to
put the rules into a statute? Is that
what Trent Lott had in mind when he
wrote Reagan and got his encouraging
reply? Yes, and goldfish can fly.
Even if Reagan's call for congressional action were not the afterthought
it so obviously was, it would have
grave defects. What the president is
actually doing is this: taking a long-
settled area of the law, reversing it by
executive fiat and then inviting Congress to restore the status quo.
The effect of such a tactic is to reverse the burden of changing the law
— and that is a heavy burden under
our system Even if a majority in Congress wants a certain statute, there
are many ways in committee and on
No marriage for Barnard, Columbia:they're into free love
BOSTON — Last June, on one of those
days that serve as lush background
scenery for white graduation dresses, I
found myself In a procession walking beside a trustee of a small private school.
It was something of a special occasion on this campus, because this was
the last year for an all-girls graduation.
The school was completing its merger.
Next year even commencement, the last
remnant of separate histories, would be
"It will be kind of a shame to lose
this," the trustee next to me said as the
songs and speeches — the special events
of this female ceremony — continued.
His assumption, unspoken and unquestioned, was that next year the girls
would become a part of the traditional
male ceremony, that the females would
give up their own rituals to gain access
to male rituals.
I have thought of this day often in the
past months. The trustee wasn't wrong
in his assumptions. In fact, over the past
dozen years, "going coed" has often
meant the admission of women Into
gating and unchanging male institutions. The merging of men's and
women's organizations has often resulted in the submerging of women.
You can see this in the business
world, where women are allowed in,
even up, if they'll play by men's rules.
You can see it in the professional organizations, when the acceptance of women
Into men's groups has meant the end of
the women's organization.
But it's most stark in the college'
world. Men's colleges like Yale, Prince*
ton and Dartmouth admitted women, believing they could, indeed should, be
treated the same as men. Brother and
sister colleges like Brown and Pembroke
AT LARGE/Ellen Goodman
married, and the women lost their
names. Once I went to Radcliffe College;
now women go to Harvard.
Among women's colleges the urge to
go coed (In 1980 there were 296 women's
colleges, today there are 116) slowed and
then virtually stopped as this evidence
mounted. Separate was sometimes better for women's equality. Women's colleges are now less carried away by
proposals, more interested in contracts.
I suppose the latest chapter in this
curious history of coeducation was written just last week by Barnard and
Barnard, like so many other women's
colleges, came into existence because
Columbia wouldn't accept women* Almost 100 years later, Columbia ardently
wanted women. But Barnard was
This wasn't just a case of bad romantic timing. Barnard has, many believe,
the best of both worlds. They have their
own faculty (59 percent female), their
own curriculum, their own finances.
Admissions are up 51 percent; they are
operating in the black. Yet they can also
share Columbia's dorms and dining
rooms, libraries and courses.
As Barnard's new president, Ellen
Futter, put it carefully: "One might describe as ideal the notion of two single-
sex insltutiotts with a relationship." But
it was not Ideal to Columbia. And as
Futter said, "There's a difference between what is structurally ideal and
Columbia wanted women for its men
and its classes; Barnard wanted a measure of independence for its women and
itself. There was talk of merger and
suspicions of submerger.
In the end they made what Futter
called "a long-term stable arrangement" Others might call it a curious arrangement, like two lovers who can't
reconcile their separate needs, Barnard
and Columbia will go on together, but
Columbia will be free to go looking for
Barnard will survive as a private
liberal arts college with a special affiliation to Columbia (and more control over,
faculty tenure). Columbia will admit;
women It can call its own.
Both colleges profess pleasure at this'
arrangement. Barnard will survive.
Columbia will get its women. They will'
all live happily ever after in the same
dormitories and dining halls.
But there is something odd in this, a
peculiar example of the times, of Ideals.
Columbia longed for an intimate rela-
tionship, but never offered partnership.
Barnard was wary of compromise.
Now, young women applicants can
choose between the female institution of Barnard,
separate but dedicated to equality,
and them ale institution of Columbia,
integrated but not equal.
Somehow orother their choices seem familiar.
BIOLOGY IS NOT
the floor to prevent its enactment. And
this is not the only case in which the
Reagan administration is using the
tactic, 'interpreting" long-established
law effectively out of existence while
saying blandly that Congress can act
if it wishes.
The lawlessness of the whole affair
is breathtaking. A president on his
own motion upsets a decade of law.
Then he says he will continue to apply
the long-understood rules for a while
in case Congress acts — but will go
ahead and grant tax exemptions to the
two institutions whose cases the Supreme Court had been about to decide,
Bob Jones and Goldsboro Christian.
Tax exemptions were notlhe only
legal subject treated in terms of fantasy at this press conference. Reagan
also sought to justify his big new cam-;
paign against leaks of information on*
government policy by saying, "It is
against the law for anyone to release
this information." No it isn't — not in
the United States. Presidents can try
to silence their subordinates. But except for particular oensitive material,
there is no "law" forbidding,disclosure of government information;
If Richard Nixon had misrepresented the law in the same way, there
would have been instant outrage. But
Reagan gives us his aw shucks look,
and we forgive him. There is just that
nagging thought: Is it really "conservative" to play fast and loose with
IN THE SENATE Hbw Texans voted
Did he mesh skewperson?
Maybe he's thinking of the straw vote.
Sen. Edward M. Kennedy, D-Mass ,
stretching to avoid any appearance of
sexism, corrected himself hastily in mid-
sentence last week: "As far as I'm concerned, we're propping up a lot of straw
men," be said, stopping short and stammering. "Er, uh, that is straw men and
straw women, and knocking them right
down," he went on.
WASHINGTON - Here's how Texas'
senators voted on the two major roll calls
L Basing. Approved 58 to 38 a ban to
prohibit federal courts from ordering the
busing of students for purposes of desegregation for more than 30 minutes or 10
miles roundtrip. The ban would be retro
1 Broadcasting. Approved 92 to 3 a
motion to consider a bill authorizing radio
and television coverage of the Senate.
Lewis is a columnist for the New York
Times and Pulitzer Prize winner for national reporting.