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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Blackwell, Morton: Files
Folder Title: Family Protection Act
(5 of 5)
Box: 9
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PRESS RELEASE
FOR IMMEDIATE RELEASE
COMMITTEE ON FINANCE
September 28, 1981
UNITED STATES SENATE
Subcommittee on Taxation
and Debt Management
2227 Dirksen Senate Office Bldg.
FINANCE SUBCOMMITTEE ON TAXATION AND DEBT MANAGEMENT
SETS HEARING ON SIX MISCELLANEOUS TAX BILLS
Senator Bob Packwood, Chairman of the Subcommittee on
Taxation and Debt Management of the Senate Committee on Finance,
announced today that the Subcommittee will hold a hearing on
October 16, 1981, on six miscellaneous tax bills.
The hearing will begin at 9:30 a.m. in Room 2221 of the
Dirksen Senate Office Building.
The following legislative proposals will be considered at
the hearing:
S.425 --Introduced by Senator Packwood. S. 425 would
exempt from the coverage of the Mortgage Subsidy Bond Tax
Act of 1980 certain general obligation mortgage bond issues
of the State of Oregon.
S.608 -- Introduced by Senator Baucus. S. 608 would allow
individuals a deduction for certain expenses paid or
incurred in connection with the adoption of a child.
S.1348 -- Introduced by Senator Sasser. S. 1348 would amend
or clarify certain provisions of the Mortgage Subsidy Bond
Tax Act of 1980 to facilitate the issuance and marketing of
tax-exempt mortgage subsidy bonds.
S.1479 -- Introduced by Senator Metzenbaum. S. 1479 would
exclude from income certain adoption expenses paid by an
employer and provide a deduction for certain adoption
expenses paid by an individual.
S.1580 -- Introduced by Senator Jepsen. S. 1580 would
provide a personal exemption for childbirth or adoption and
permit the taxpayer to choose a deduction or tax credit for
certain adoption expenses.
S.1655 -- Introduced by Senator Durenberger. S. 1656 would
amend or clarify certain provisions of the Mortgage Subsidy
Bond Tax Act of 1980 to facilitate the issuance and
marketing of tax-exempt mortgage subsidy bonds.
Requests to testify. -Witnesses who desire to testify at the
hearing must submit a written request to Robert E. Lighthizer,
Chief Counsel, Committee on Finance, Room 2227, Dirksen Senate
Office Building, Washington, D.C. 20510, to be received no later
than noon on Friday, October 9, 1981. Witnesses will be
notified as soon as practicable thereafter whether it has been
possible to schedule them to present oral testimony. If for some
reason a witness is unable to appear at the time scheduled, he
may file a written statement for the record in lieu of the
personal appearance. In such a case, a witness should notify the
Committee of his inability to appear as soon as possible.
Consolidated testimony.- Senator Packwood urges all
witnesses who have a common position or who have the same general
interest to consolidate their testimony and designate a single
spokesman to present their common viewpoint orally to the
Subcommittee. This procedure will enable the Subcommittee to
receive a wider expression of views than it might otherwise
obtain. Senator Packwood urges that all witnesses exert a
maximum effort to consolidate and coordinate their statements.
Legislative Reorganization Act. Senator Packwood stated
that the Legislative Reorganization Act of 1946, as amended,
requires all witnesses appearing before the Committees of
Congress "to file in advance written statements of their proposed
testimony, and to limit their oral presentations to brief
summaries of their argument."
Witnesses scheduled to testify should comply with the
following rules:
(1)
All witnesses must submit written statements of their
testimony.
(2)
Written statements must be typed on letter-size paper
(not legal size) and at least 100 copies must be
delivered not later than noon on Thursday, October
15,1981.
(3)
All witnesses must include with their written
statements a summary of the principal points included
in the statement.
(4)
Witnesses should not read their written statements to
the Subcommittee, but ought instead to confine their
oral presentations to a summary of the points included
in the statement.
(5)
Not more than five minutes will be allowed for the
oral summary.
Written statements.--Witnesses who are not scheduled to
make an oral presentation, and others who desire to present their
views to the Subcommittee, are urged to prepare a written
statement for submission and inclusion in the printed record of
the hearing. These written statements should be typewritten, not
more than 25 double-spaced pages in length, and mailed with five
(5) copies to Robert E. Lighthizer, Chief Counsel, Committee on
Finance, Room 2227, Dirksen Senate Office Building, Washington,
D.C 20510, not later than Friday, October 30, 1981. On the
first page of your written statement please indicate the date and
subject of the hearing.
P.R.#81-165
Congressional Quarterly
Weekly Report
Health/Education/Welfare 2
Family Protection Act: Dear
ishment actions taken by a parent or person authorized by
the parent from the definition of "child abuse and neglect."
To New Right, But Unlikely
Prohibit any program receiving federal funds from
providing services or counseling on contraceptives or abor-
tion to an unmarried minor without first notifying the
To Get Out of Committees
minor's parents.
Prohibit the federal government from pre-empting or
The Family Protection Act is a tidy wish list for the
interfering with state laws on juvenile delinquency, child
New Right. As a comprehensive piece of legislation,
abuse or spouse abuse; prohibit the use of federal funds for
though, it appears to be going nowhere.
any child abuse program not specifically authorized and
The controversial measure covers a broad range of
established by a state's legislature.
moral and family issues, from legalizing school prayer to
Bar attorneys funded through the Legal Services Cor-
providing tax breaks for adoptions. It is called a high
poration from taking part in any litigation involving abor-
priority by the various groups that label themselves "pro-
tion, busing, divorce or homosexual rights.
family" and are best known for their anti-abortion efforts.
Prohibit federal funding of any group or individual
The National Pro-Family Coalition, the Moral Majority
advocating homosexuality as a lifestyle.
and other organizations frequently herald the bill in their
Authorize the secretary of defense to send a portion of
publications and mailings.
a military employee's pay directly to dependents living
But the American Civil Liberties Union (ACLU), the
separately from the employee.
National Organization for Women and many other groups
Tax Provisions. The bill authorizes:
oppose the measure. "Instead of being protection for the
A $250 tax credit or a $1,000 exemption if a dependent
family, it represents more federal intrusion into decisions
person age 65 or older lives in a household.
usually made by the family," said Laura Murphy, ACLU
A deduction of up to $2,500 a year for parents or others
legislative director.
who establish an education savings account for themselves
Only a strong endorsement from the Reagan adminis-
or their children.
tration is likely to spring the bill (S 1378, HR 3955) from
A deduction of up to $3,000 a year for contributions by
any of the five Senate and House committees to which it
an individual to a trust account, similar to the Individual
has been referred. None has any plans at present for hear-
Retirement Account, established to provide care for a par-
ings or other action, according to committee aides. So far,
ent age 65 or older or a handicapped relative.
the administration has been silent on the proposal.
A deduction of up to $1,500 a year for contributions by
One reason for the lack of interest is that many of the
an individual to a retirement account for a spouse with no
bill's provisions are tax breaks . for care of elderly rela-
earned income ($3,000 if the spouse was handicapped).
tives, retirement funds for non-salaried spouses and other
A deduction for contributions made by corporations to
activities that supporters believe strengthen the family as
joint employer-employee day care facilities.
an institution. Since Congress is trying to find new ways to
A new tax exemption of $1,000 for each child born to
balance the federal budget, it is not likely to agree to a new
or adopted by a married taxpayer during a year ($3,000 if a
list of tax cuts.
child was handicapped or if an adopted child was biracial
There is no firm estimate yet of what the Family
or over 6 years of age).
Protection Act would cost the Treasury in terms of lost
A deduction of up to $3,500 for adoption expenses.
revenues, but the figure would be in the billions.
Education. The bill prohibits federal funding of any
But supporters such as Connaught Marshner, chair-
agency or institution that: does not permit parental partici-
man of the National Pro-Family Coalition, argue that the
pation in decisions relating to study of religion; limit
bill would "take other costs off of the government." Tax
parental classroom visits or examination of educational
incentives for adoption, for example, would mean "less
records; requires forced payment of dues or fees as a condi-
welfare money spent on homeless children," while tax
tion of employment for teachers or prohibits parental re-
breaks for education savings accounts would reduce de-
view of textbooks prior to their use.
mand for federal education loans, she said.
Prohibits use of federal funds for educational materi-
Marshner also challenged the notion that the bill
als that "do not reflect a balance between the status role of
would "cost" the government. "We like to think the money
men and women, do not reflect different ways in which
belongs to the people that the government shouldn't
women and men live and do not contribute to the American
have it in the first place," she said.
way of life as it has been historically understood."
Chief sponsors of the bill are Sens. Roger W. Jepsen,
Clarifies states' rights to set teacher qualifications and
R-Iowa, and Paul Laxalt, R-Nev., and Rep. Albert Lee
attendance requirements; authorizes local education agen-
Smith Jr., R-Ala. The bill was referred to the Senate Fi-
cies to limit or prohibit the "intermingling" of the sexes in
nance Committee and the House Armed Services. Educa-
sports or other school-related activities.
tion and Labor, Judiciary, and Ways and Means commit-
Exempts private schools from the jurisdiction of the
National Labor Relations Board.
tees. Some provisions also have been introduced as
separate bills.
Repeals Titles I, II, III, IV, VII and IX of the Elemen-
tary and Secondary Education Act of 1965, and instead
Provisions
authorizes federal education aid of $4.5 billion in each of
The Family Protection Act would:
fiscal years 1982 through 1985, in the form of a block grant.
Establish a legal presumption in favor of a broad inter-
Guarantees the right of individuals to pray or meditate
pretation of parental rights to supervise a child's religious
in any school or other public building; prohibits federal
or moral formation: exempt disciplinary or corporal pun-
regulation of church-affiliated activities such as schools,
foster homes or emergency shelters. The prohibition would
-By Ann Pelham
not apply to civil rights laws.
PAGE 1916-Oct. 3, 1981
COPY/CHT ⑉ CONDRESSIONAL QUARTERY INC
- probited - . is - by I -
Family Protection Act Q's and A's
Q: HOW CAN YOU JUSTIFY THE TAX EXPENDITURES CONTAINED IN THE FPA
WHEN YOU HAVE ALWAYS SUPPORTED THE PRESIDENT'S ECONOMIC PACKAGE?
The revenues which would be deducted from the treasury because
of the tax exemptions and credits would be more than compensated
for by the decrease in need for federal assistance in many areas.
For example, it would be less expensive and more humane for a
family to have an exemption for caring for an aging parent at
home than to place them in a federally-subsidized nursing home.
Tax provisions in the Family Protection Act are supportive of
family unity and individual initiative. This, in turn, will
create strong and more viable social and economic communities;
hence, a stronger America.
Q: WHAT IS THE ADMINISTRATION'S POSITION ON THIS LEGISLATION?
The FPA embodies many of the concepts included in the 1980
Republican platform. The FPA strongly reflects the President's
philosophy which is to take government out of the personal
and family lives of individuals and to limit the role of the
federal government in effecting social change. Senator Laxalt,
President Reagan's representative in the Senate, is also
chief cosponsor of this legislation.
Q: DEFINE FOR ME THE "ROLE OF THE WOMAN AS IT HAS BEEN HISTORICALLY
UNDERSTOOD.
Traditionally, the role of the woman has been that of mother
and homemaker just as the role of the man has been that of
father and provider. Over the last decade, for reasons not
Family Protection Act 0's and A's
Page 2
the least of which are economic, women have joined the work
force in increasing numbers and recent estimates indicate that
50 percent of all women are employed outside the home.
The FPA does not promote the role of the woman as mother and
homemaker to the exclusion of the woman's role as a professional.
The only reference to the traditional role of the woman is a
provision that guarantees that federal funds shall not be used
for educational material that does not reflect a balance between
the differing roles of women in today's society. In recent
years the federal government has spent millions of dollars
annually to remove all references to women in the traditional
role as homemaker and mother because they felt it "did not
allow a young girl to grow into a woman of her own right."
As a result, pictures of women in aprons or little girls buying
dresses have been removed from our children's textbooks and the
role of homemaker has not been presented as a choice.
Q: DOESN'T THE FAMILY PROTECTION ACT ACTUALLY BRING THE FEDERAL
GOVERNMENT INTO FAMILY LIFE MORE THAN IT EVER HAS BEFORE?
No. the Family Protection Act is designed to do just what it's
name implies -- protect the family, and in many areas protect
it from interference by the federal government.
The Christian Science Monitor summed up the intent of the bill
quite well when they said, "It says, in essence, that Uncle
Sam is just that -- an uncle who can observe and perhaps
offer advice, but not a parent who has the final say on disciplinary
or family matters."
Family Protection Act Q's and A's
Page 3
The federal government over recent years has become increasingly
involved in family life, in many cases usurping the responsibil-
ities of parents. The responsibility for the educational, moral,
and religious upbringing of children should be safeguarded from
government interference and brought back home where it belongs.
Q: WHY WOULD YOU DENY LEGAL SERVICES IN THE AREA OF DIVORCE LITIGATION?
There are two documented facts with which no one can argue.
First of all, that the structure of the American family as it
has been understood is weakening. Secondly, statistics show that
50 percent of the marriages in this country today end in
divorce. These are appalling facts, but nonetheless they
are true.
The Family is the basic unit and strength in our society.
If the family unit crumbles our government and country will also
crumble. Therefore, I believe that it is of paramount
importance that government in no way encourages or supports
the breakdown of the family unit. Government must take a neutral
stand in the area of divorce. The government, with taxpayer's
dollars, should not pay for divorce -- in essence this would
condone and assist in divorce.
Family Protection Act Q's and A's
Page 4
Q: THIS BILL WOULD DENY THE POOR THE RIGHT TO GET A DIVORCE, IS
THAT FAIR?
I realize that included in that 50 percent divorce statistic
are many poor and needy people who find themselves in
situations where they see divorce as the only answer. This
bill in no way denies them the right to a divorce. The
local communities are just going to have to assist the needy
in their area in this regard. Many local bar associations
in the past have assigned attorneys to aid those who could not
personally afford the Iégal costs of a divorce.
Many civic groups and individuals will also become involved.
This is a way in which these citizens can serve their community.
This is not an easy answer, I know. Sometimes life isn't easy,
but government cannot solve all social ills -- anymore than we
can legislate away all pain and hurt and suffering. It just isn't
possible.
Q: OUR COMMUNITY DOES NOT OFFER ANY LEGAL SERVICES THROUGH
BAR ASSOCIATIONS OR CIVIC GROUPS.
Well, perhaps they need to create one. Many services which were
taken care of at the community level in the past have been laid
aside because the federal government has stepped in and taken over.
The government has usurped the responsibilities of the local
communities in many areas -- and has done an inferior job in most
cases. I might add -- and increased our taxes to pay for them.
Family Protection Act Q's and A's
Page 5
Q: WON'T THE NURSES AND NURSING HOME OWNERS LOBBY STRONGLY
AGAINST THE PROVISION OF THE BILL WHICH PROVIDES TAX INCENTIVES
FOR FAMILIES TO KEEP THEIR ELDERLY AT HOME, SINCE IT WOULD TAKE
AWAY THEIR BUSINESS?
Certainly, nursing professionals and those who care for the
elderly in nursing homes would not oppose this section of
the bill. They of all people are compassionate and caring.
That is the one reason that they are involved in the caring
of the needs of the elderly. I am sure that they
would be very supportive of families being encouraged to keep
their elderly members at a home which could give the elderly
individual quality care and love. Love is something which we
cannot legislate and government cannot provide.
Q: WOULD YOU ACKNOWLEDGE THAT THIS BILL SETS UP ONE VIEW OF MORALITY?
All legislation is based upon some set of values -- civil rights laws,
truth in advertising laws, environmental protection laws.
This bill promotes the principles of family indepedence, personal
responsibility, individual liberty, and economic growth.
Q: THIS LEGISLATION GIVES LOCAL SCHOOL BOARDS A NEW SET OF MARCHING
ORDERS. CAN THE LOCAL DISTRICT HANDLE THE EXTRA LIBERTY AND
RESPONSIBILITY THAT WILL BE PLACED UPON THEM?
Of course local school districts can handle the liberty and
responsibility that will be placed upon them. The best government
is that government closest to the home. Working with parents,
the local school boards know best the educational needs of our
young people. Presently, the federal government provides 8 percent
of local educational costs, and 90 percent of their regulations.
Family Protection Act Q's and A's
Page 6
Q: WHAT IS THE GREATEST CAUSE OF FAMILY PROBLEMS TODAY -- IS IT
THE FEDERAL GOVERNMENT?
The Federal government has contributed to family problems by
usurping responsibilities once handled by the family unit.
The most basic problem, however, stems from the eroding away
of our basic system of values where there is no basis for right
or wrong.
Q: WHAT ARE YOU REFERRING TO WHEN YOU REFER TO A CHANGE IN OUR VALUES?
****IN THE HUMANIST'S APPROACH TO LIFE, ALL MAN'S EFFORTS REVOLVE
AROUND SELFISH GOALS, WITH THE MEASURE OF RIGHT OR WRONG VARYING
TO SUIT MAN'S CURRENT WHIM.
Secular Humanism, or situation ethics, represents man's best
effort to shape his society and his system of values apart
from God. Therefore, there is no right and no wrong because
there is no constant system of values to make judgments upon.
A humanistic approach has crept into all aspects of life in
our society today and is often accepted by man, almost
unconsciously, without thinking through its philosophy.
Since government is structured by man and the authority in
our society, it becomes man's source of supply for all his
needs. Government therefore becomes the god.
Family Protection Act Q's and A's
Page 7
Q: WHAT IS YOUR EVIDENCE THAT THE AMERICAN PEOPLE REALLY WANT A
RETURN TO "TRADITIONAL" VALUES?
Recent surveys done by READER'S DIGEST support the fact that the
majority of American families believe in traditional values
and also have a strong belief in God.
Also, the recent study done by Connecticut Mutual showed that
the major social issues of the day (Abortion, Homosexuality,
Pornography) were of moral concern to about 2/3 of the general
public while they were moral concerns for only about 1/3
of government officials.
Perhaps the best show in town, however, was the last election
when the American people demonstrated at the polls with
geographic unanimity a growing concern for the direction this
country is heading both socially and economically.
Q: CAN YOU SIGHT A FEDERAL LAW OR REGULATION THAT HAS DIRECTLY
CHANGED THE LIVES AND THE STRUCTURE OF THE AMERICAN FAMILY?
a) The graduated tax system: this system has gradually
but relentlessly put many American households in a
position where both the father and the mother are
forced into the working force for economic reasons.
Of course, inflation has been the worst vilhin in this
regard.
b) Under the Aid to families with dependent children program,
low-income families deprived of a father's support are
granted cash assistance while intact families in the same
Family Protection Act Q's and A's
Page 8
financial bracket do not meet eligibility requirements.
This system encourages low income married couples to
live apart and provides no reason for an unmarried couple
with children to be married.
c) Family Planning programs where parents are not included
In decisions relative their their children's sexual
development. An unemancipated minor needs her parent's
signed permission to be absent from school or to get her
ears pierced, yet she may be treated for VD, get a
prescription for birth control pills, or obtain an abortion
without her parents being informed.
d) Decisions of the Supreme Court
Busing: Compulsory Busing disrupts family and neighborhood
life and heightens racial tensions without improving the quality
of education for children of any race or ethnic background.
By forcing children to seek their education away from the
local school, it removes the responsibility from parents
for directing their children's education.
Q: WHAT KIND OF SUPPORT DO YOU EXPECT FOR THIS BILL?
Widespread. Already our office has received a positive response
to the revised bill from a cross section of individuals at
the grassroots level who have had an opportunity to review
the new language. I firmly believe that all Americans who
daily see the influence that the policies of the federal
government has upon their personal and family lives will
be interested in knowing more about this legislation.
Family Protection Act Q's and A's
Page 9
Q: YOUR BILL INCLUDES SEVERAL REFERENCES TO HOMOSEXUALS.
ARE YOU TRYING TO TELL THE AMERICAN PEOPLE THAT HOMOSEXUALS
DO NOT HAVE CIVIL RIGHTS?
No. The FPA in no way interferes with the civil rights of
homosexuals. It does, however, prevent federal funds from being
used for the express purpose of promoting homosexuality as an
alternate lifestyle. It also prevents the Legal Services
Corporation from litigation solely for the purpose of
adjudicating the issue of homosexual rights. These are the
only two provisions in the FPA that affect homosexuals.
Q: HOW CAN YOU JUSTIFY RETURNING TO THE STATES THE JURISDICTION
OVER FAMILY ABUSE CENTERS WHEN THE STATES HAVE TAKEN LITTLE
OR NO INITIATIVE IN THIS AREA?
It is a false premise to say that states have taken no
initiative in the area of spouse and child abuse. 44 states
have recently passed legislation dealing with the problems
of spouse abuse and have set up domestic violence shelters
and counseling programs. Many states have also drastically
revised their criminal codes to provide for easier arrest
and persecution of the abuser; and civil remedies have been
implemented to evict the abuser from the residence rather than
leaving it up to the victim to flee.
Here again, the federal govenrment has been all too willing
to promote programs in this area, thus making it unnecessary for
state and local efforts to develop programs which effectively
combat the very real problems of domestic violence.
The Family Protection Act Q's and A's
Page 10
Government oversight is no substitute for active participation
by the community, the church, and the extended family unit.
Q: ARE YOU FEARFUL THAT THE NUMBER OF ILLEGITIMATE CHILDREN
WILL INCREASE IF PARENTS ARE TO BE NOTIFIED THAT THEIR
CHILDREN ARE RECEIVING CONTRACEPTIVE DEVICES?
No. The Federal government has usurped the responsibility for
supervising our children's sexual development and education
and are keeping the parents uninformed. It is indeed &
paradox that parents are paying for this service with their
tax dollars.
What has occurred has been a marked increase in the
number of teenage pregnancies and abortions, a growing
independence on the part of our young people to develop
their moral character apart from their parent's values,
and an increased acceptance of a value free approach to
pre-marital sex.
PRELIMINARY
ESTIMATED REVENUE EFFECTS OF TAX PROVISIONS
CONTAINED IN THE FAMILY PROTECTION ACT
(In Millions of Dollars)
Fiscal Year
Item
1982
1983
1984
1985
1986
1. Education savings accounts ($2,500
contribution per year).
940
3,330
3,910
4,450
5,060
2.
Optional $250" tax credit or $1,000 exemption
for each household which includes a dependent
person age 65 or older.
460
440
450
480
490
3.
Tax exempt trust accounts for aged parents
or handicapped relatives ($3,000 contribution
per year).
50
180
200
210
210
4.
Retirement savings accounts for spouses
deductible up to $1,500 per year.
70
280
320
360
380
5.
Exemptions for childbirth and adoptions
($1,000 tax exemption, $3,000 if child is
handicapped). In addition, allow deduction
for amount of adoption expenses.
970
840
800
810
820
Thurs., Aug. 13, 1981
DES MOINES REGISTER 15A
OPINION
Kind words for Family Protection Act
The Des Moines Register
THE NEWSPAPER IOWA DEPENDS UPON Des Moines, Iowa, Thursday Morning, August 13, 1981
By IAN BINNIE
ENATOR Roger Jepsen's
regard it as a form of slavery for
those who have demanded and
similar tactics to thwart the program
granted to no other special-interest
S
Family Protection Act has
women.
received the right to censor textbooks
that Ronald Reagan campaigned and
group.
received a universally bad
The act doesn't force anything on
that minorities and feminists find
won on.
The traditional role of women has
press, but, considering the
anyone; much of it simply gets the
offensive to them. And surely no
The problem of prayer in schools,
been denigrated by the radical
media's love affair with the now-dis-
federal government out of areas that
liberal who regards a career as the
which wasn't a problem until the
feminist movement; these strident
credited liberal intelligentsia, this is
properly belong to the states. The
right of every woman can object to
Supreme Court made it one with its
viragos have trumpeted their opinion
hardly surprising.
argument that the federal govern-
allowing a company to write off the
rather bizarre interpretation of the
in tax-supported forums that raising
Having had an opportunity to read
ment must act whenever the states
cost of operating a day-care center
First Amendment, is a problem that
children is degrading and that only a
the act and to discuss it with the
won't is the argument that the Tenth
that makes that career possible.
simply has to be faced, and the act
"career" will properly "fulfill" a
senator, I wonder how many of its
Amendment to the Constitution was
The move to get tax-supported le-
chooses to face it now. In any event,
woman.
critics have bothered to do likewise.
designed to guard against.
gal-services attorneys back to their
the Supreme Court will have to
That it is always a "career" and not
The ones who claim to have read it,
just a job is an indication of the up-
Requiring that the parents of a
finding little in it that any normal
per-middle-class elitism of this well-
14-year-old girl be consulted before
she is given counseling in contracep-
The traditional role of women has been
dressed movement. In this scenario,
person would object to, are reduced
women are to trade the living room
to cautioning us to read between the
tive techniques or abortion doesn't
lines (and no doubt look under the
seem unreasonable to those who
denigrated by the radical feminist
for the operating room or the
courtroom, not the factory floor or
bed) to find the wild-eyed right-wing-
believe that parents should have at
ers lurking there.
least some say in their children's up-
movement; these strident viragos have
other less desirable tasks that most
women will have to accept, as do
Reprinted with permission of The Des Moines Register
The average American will have no
bringing. Allowing a tax break for
trumpeted their opinion in tax-supported
most men. We need take this group
problem defining the family or identi-
those who keep their elderly parents
seriously only when Aigner and Pap-
fying with it; it consists of parents,
at home instead of shunting them off
children and sundry other individuals
to the present-day equivalent of the
forums that raising children is degrading
pagallo start making steel-toed safety
shoes.
related by blood, marriage or
county poor farm makes both
and that only a 'career' will properly
What are the chances of the Family
adoption. It does not include loose and
economic and humanitarian sense.
temporary associations whose only
The extra tax break for those who
'fulfill' a woman.
Protection Act's passage? Given the
climate of the times, they have to be
bond is the economic advantage of
would now like to, but cannot afford
rated good to excellent. Senator Paul
sharing food stamps, pad and pot.
to, adopt a handicapped, older or
Laxalt (Rep., Nev.) is the co-sponsor,
bi-racial child could mean a good life
The very word "family," of course,
proper jobs and out of the advocacy
recognize sooner or later that the
which usually indicates White House
for some children who might
business is timely. Outgoing president.
First Amendment not only forbids the
approval, and anyone who underrates
sets up a kneejerk disapproval
otherwise never have a decent
reaction in the radical homosexual-
John Adams tried to perpetuate his
establishment of religion but protects
that fact simply hasn't been paying
chance. Allowing parents to set up a
philosophy of government and thwart
the free exercise of it as well.
attention.
feminist coalition; the
former
with
limited tax-free savings fund for
their sterile dead-end
relationships
the will of the people by using the
The act does not attack homosexu-
But the question may be moot;
their children's education merely
regard the family with
a mixture of
courts, which be had stacked in his
als, but merely requires that any
much of what is in the act probably
extends the freedom of educational
envy and hatred, and the latter
favor, to oppose the programs of
proselytizing they do be done at their
will be passed in other acts before the
choice now available only to the rich.
Incoming president Thomas
own expense, not at the expense of
Family Protection Act itself comes
The right of parents to have some
Jefferson. Our outgoing liberals, with
the federal taxpayer. The $371,000
up. However, the act is valuable as a
Ian Binnie is a member of the Des
say in what textbooks their children
the courts and the bureaucracies
spent recently to relocate Cuban and
statement of principle for America's
Moines School Board.
use cannot logically be criticized by
stacked in their favor, are trying
Haitian homosexuals was a favor
new beginning.
EducationUpdate
Vol. 5, No. 2
September 1981
THE FAMILY PROTECTION ACT: SYMBOL AND SUBSTANCE
The Social Issues: A New American Consensus?
has had a negative effect on family life and the fabric of
Since the November election there has been continuous
American society.
More recently a study by Research and Forecasts, Inc.
discussion of the importance of the economic agenda ver-
was commissioned by the Connecticut Mutual Life Insur-
sus the social issues agenda. President Reagan, speaking at
ance Company to explore American values in the 1980s
a gathering of conservatives last March, said:
and the extent to which they are shared by leaders in Amer-
We do not have a separate social agenda, we have one agenda. Just
ican society. The study revealed a marked contrast in the
as surely as we seek to put our financial house in order and rebuild
affirmation of traditional values by Americans as a whole
our nation's defenses, so too, we seek to protect the unborn, to end
when compared to the positions of leaders. For example,
the manipulation of schoolchildren by utopian planners, and per-
mit the acknowledgement of a supreme being in our classrooms.
in answer to the question, "Do you regard abortion as im-
moral?" only 36 percent of the leaders said yes, as compared
This was interpreted in some journalistic quarters as mas-
to 65 percent of the public.
saging the faithful. In the meantime, liberal commentators
The project's research director, John C. Pollock, con-
are warning Reagan and the Republicans that the social is-
cluded that the religious thread unexpectedly showed up in
sues agenda is devisive and detrimental to their long range
all the analyses. "It's more than a movement," he said. "It's
electoral interests.
something running through the whole culture." Although
Could it be that liberals perceive the social issues to be
there was no intent to focus on religion, according to the
deadly to their own political interests? Especially devastat-
report, it emerged as "the one factor that consistently and
ing to the liberal Democrats has been the departure from
dramatically affects the values and behavior of Americans."
their ranks of the troops who did not agree with their views
If, therefore, one is measuring general public opinion
on social issues but who share, by family ties, habit and
trends, or the activity of attentive publics, it becomes quite
sentiment, their party affiliation. Surveying these depart-
clear that the liberal philosophy on social questions is with-
ing troops and their reasons for leaving most liberals would
out significant grass roots support. There are no significant
rightly conclude that for them, the social issues are indeed
constituencies in the Reagan coalition for busing, and abor-
a disaster.
tion on demand, or strongly opposed to voluntary prayer.
The master political scientist V. O. Key summed it up
The pollsters may show that for the general public, eco-
twenty years ago in his definitive work, Public Opinion
nomic concerns are paramount; they cannot show that car-
and American Democracy, in which he analyzed public
rying out conservative principles on the social agenda is
opinion, its intensity and "attentive publics." For some
contrary to the convictions of any significant group other
time it has been apparent that intense and widely dispersed
than liberal ideologues.
"attentive publics" deeply oppose abortion on demand,
Congressman Robert Michel, Republican leader of the
busing, and overweening government regulation, and favor
House of Representatives, made the point in a widely-
voluntary prayer. On the intensity scales of pollsters like
publicized essay, "Social Issues Won't Go Away":
Richard Wirthlin and V. Lance Tarrance, for example, for
every two or two-and-a-half voters who will change their
Contrary to the myth that social issues activists are single-minded
political behavior because of their pro-life stand, there is
fanatics, those who oppose abortion on demand or who favor
one voter who will alter his political behavior because of a
school prayer are, I have found, as deeply concerned as the rest of
pro-abortion position.
us over traditional political issues such as the economy and national
The Gallup and Better Homes and Gardens polls released
security. But they feel that Supreme Court decisions and bureau-
in 1980 in connection with the White House Conference on
cratic actions in areas of traditional values have robbed them of
their right to participate in shaping (not, as some say "imposing")
Families confirmed the decided belief among the American
policy in matters they are convinced be left in the hands of the peo-
people in all walks of life at all income levels that an ero-
ple
The pro-life, anti-busing and school prayer movements
sion of traditional values has occurred and that this erosion
transcend party and ideological lines.
The
Heritage Foundation
513 C Street, N.E., Washington, D.C. 20002, Editor, Onalee McGraw
One thing is clear, and that is that the liberals have not
radical feminists, leftists, federally-funded interest groups,
concentrated on persuading a majority of the American
liberal politicians and media pundits to put the conserva-
public on the social issues but have simply relied on the
tive social issues constituency into an "extremist right wing
courts and bureaucracies to carry out their agenda by fiat.
religious fanatic" box comes into focus. It is in their interest
Now that they are confronted with a clear repudiation of
to isolate this constituency from the mainstream, quaran-
their policy objectives, the liberal response on the social is-
tine it and label it "dangerous," "embarassing," "devisive,"
sues appears to be that government should not regulate pri-
and "kooky." The President and the legislators must be
vate behavior.
persuaded that this constituency is really "excess baggage"
It is only logical that liberal commentators would make
that will somehow hinder the economic agenda and alienate
every attempt to isolate and defeat the social issues constit-
the majority of American voters.
uency whose values they deeply oppose. Apparently the
By attempting to separate the conservative social issues
liberal line is going to be as follows: conservative attempts
constituency from the mainstream, the fact is obscured
to rectify previous judicial and governmental policies that
that it is in reality the liberal propositions on these issues
have had a widespread impact on American society are un-
that are now out of the mainstream, if indeed they were
justified attempts to use government to interfere in people's
ever in it. As Representative John Ashbrook recently put
lives.
it, all the labeling of issues as "single issues" cannot dis-
For example, David Broder, writing in The Washington
guise the fact that "there is a political revolution underway
Post, attempts to frame the issue as one in which "moral
all over America against the liberal establishment and
majority" types will move to "expand government efforts
throwing labels on it isn't going to make it go away."
to prescribe and regulate individual behavior." He warns
It is true that the social issues are volatile. They provoke
that such attempts are likely to result in future electoral
strong feelings in "attentive publics" because they raise
losses by Republicans.
squarely the question of what American society is all about;
This line of argument has been most pronounced with
they go to the heart of what every individual thinks and be-
regard to commentary on the Family Protection Act re-
lieves about himself, his family and others in the social
cently introduced in Congress by Senators Roger Jepsen
order.
and Paul Laxalt, Rep. Albert Lee Smith and others. Syndi-
But the question must be raised: why are issues such as
cated columnist Paul Greenberg says the Family Protec-
when human life begins, and the authority of the state to
tion Act "represents another intrusion of government in
protect it, religious freedom, the sexual activity of minors,
the name of fighting government intrusion.' He accuses
and pornography political issues in the first place? These
the bill's proponents of seeking to find political solutions
issues became political because liberal ideologues insisted
to all the problems of society. He does not tell us what his
on using the mechanisms of the state to impose their own
position is on the government policies that the Family Pro-
values and policy goals on American society without re-
tection Act seeks to reverse. Rhonda Brown, writing in The
gard to the deliberate consensus of the American people.
Nation, states that in the Family Protection Act the "new
When the subject is framed as the examination of the
right" proposes a "reconstruction of a society according to
proper and popularly supported usage of federal funds and
'traditional values' based on an America that doesn't exist
power, how does the social issues agenda intrude and de-
today, if it ever existed at all."
tract from the economic agenda? Are they not both integral
In short, faced with a new majority not to their liking,
parts of the same set of propositions that were ratified by
the liberal fall-back position is that conservative attempts
the electorate last November?
to deal with the social issues are repudiations of the Rea-
It is therefore not surprising in the least that the Family
gan mandate to reduce government interference in people's
Protection Act has been interpreted as an omnibus legisla-
lives.
tive monster containing measures that will turn the federal
This overlooks the fact that Americans have had almost
government into an oppressive engine driven by the "new
two decades of government doing just that, not only in the
right" and "moral majority types" that will prosecute ho-
economic area, but precisely in the widespread use of fed-
mosexuals, force prayer down the throat of every school
eral funds and programs to effect changes in cultural,
child in America, provide a federal mandate for censorship
moral and familial values. Perhaps it should be emphasized
of textbooks and send all women back into the kitchen bare-
that judges appointed by politicians are as much a part of
foot and pregnant. In short, those who viewed with favor
the government as are the politicians themselves.
the use of federal power to establish their policy preferences
It is natural enough that liberals would want to confine
now accuse those whose views they abhor of perpetrating a
the domestic political agenda they no longer determine to
totalitarian piece of legislation.
economic issues. If the President and the now clearly evi-
Political columnists Germond and Witcover in a recent
dent bi-partisan majority in the Congress fail to produce
column fussed over how the President was going to deal
on the economic issues, or badly stumble on the social is-
with the social issues without associating himself with the
sues, the socially. conservative voters who by habit and tra-
"crazies." Yet contrary signs abound as to who in the eight-
dition vote Democrat may return in significant numbers to
ies the "crazies" are vis-à-vis the mainstream.
their ancestral party home.
The signs appear at many levels. There are press reports
It is within this framework that the determination of
that motherhood, the flag and the boy scouts are coming
back in style. Conservative academics are coming out of
symbol and substance is a reflection of the new intensive
the closet in universities where it has been unfashionable to
involvement of grassroots citizens in politics via the social
project conservative ideas.
issues.
Authority figures in various social science disciplines are
The November election brought with it a number of sur-
saying the most refreshing things. In a recent issue of Psy-
prises. One was the demonstrated power of the social issues
chology Today, Dr. Bruno Bettelheim says that a society
to generate, not only grassroots political involvement on
whose members lack a strong sense of morality may be an
the part of previously passive citizens, but also significant
endangered species, that sex education in the schools may
changes in voting behavior. People who had previously
do more harm than good. He strongly recommends tradi-
voted for liberal democrats, and shared their party heritage
tional fairy tales as a means to expose youngsters to the
but not their social agenda, were now shifting their voting
conflict between good and evil.
patterns in sufficient numbers to make the crucial differ-
None of these signs points to specific support for mea-
ence in congressional elections.
sures in the Family Protection Act, but they do tell us what
Since the introduction of the revised Family Protection
the new political and cultural trends are. However, the
Act, commentary on the bill has frequently focused on the
Family Protection Act should be judged on its merits,
question of the "social issues agenda" rather than the spe-
rather than the manipulation of symbols and emotions.
cific proposals contained in the bill. Examination of the
substantive proposals in the Family Protection Act reveals
a surprisingly low-key, procedurally-oriented approach to-
The Family Protection Act: Background & History
ward the stated goal of the bill: "to restore the balance in
In June 1981, the new Family Protection Act (S. 1378,
favor of the family."
H.R. 3955) was introduced by Senator Roger Jepsen (R-
The substance of the proposals does not measure up to
Iowa) along with Senator Paul Laxalt (R-Nevada), the last
the often hysterical and shrill rhetoric emanating from cer-
session's chief sponsor, and Representative Albert Lee
tain quarters on the left. Senator Jepsen's office, for exam-
Smith (R-Alabama) for the House version.
ple, reports that some of the media commentary is critical
The purpose of the Family Protection Act, according to
of provisions that are not even contained in the bill. Ac-
Senator Jepsen, is "to redress the balance in favor of the
cordingly, a discussion of the substantive proposals in the
family, to restore to the family its essential functions. Gov-
Family Protection Act would appear to be in order.
ernment policies interfering with the family have increased
The Family Protection Act introduced in June 1981 is,
over the past decade under the guise of 'solving' human
for all intents and purposes, a brand new bill, Its sponsors
problems in the areas of health, education and social serv-
describe it as "the first major legislative effort to return the
ices. Government oversight is no substitute for active par-
balance in favor of the family in key areas such as educa-
ticipation by the community, the church, and in the final
tion, taxation, religion and domestic relations."
analysis, the family unit."
The proposals reflect a refinement of analysis in response
Senator Laxalt remarked, "I believe the policies of Presi-
to criticism of the earlier version, which came from the bill's
dent Reagan will strengthen the family. I do not expect a
supporters and opponents alike. In addition, the Family
continuation of the social tinkering that we saw in the last
Protection Act proposals are more realistic and less ideo-
four years under the Carter Administration, advocated by
logically oriented, reflecting the new opportunities for pas-
appointees openly hostile to traditional values."
sage presented by a conservative majority in the Senate and
Representative Albert Lee Smith underscored the renewed
a bi-partisan potential majority in the House. It is not with-
appreciation that Americans are demonstrating for the im-
out significance that the majority of conservative Demo-
portance of the family and its values: "Self-government
crats in the House tend to be conservative on social issues.
rests on the wise judgment and virtue of its citizens achieved
One of the important changes made in the new version is
through strong family life."
on the question of the role of the federal government in re-
Since the introduction of the new Family Protection Act,
lation to the states in matters concerning family rights.
Senators Jake Garn (R-Utah) and Orrin G. Hatch (R-Utah)
Grassroots supporters of the Family Protection Act were
have joined Senators Jepsen and Laxalt in co-sponsorship.
bothered about the contradiction in conservative principles
On the House side, Representative Smith is joined by Con-
that appeared in the old version. It had provided for the re-
gressmen Mark Siljander (R-Mich.), William Dannemeyer
moval of federal funds from states that did not adopt state
(R-Calif.), James Jeffries (R-Kans.), Philip Crane (R-III.),
provisions fostering parental and family rights. Opponents
George Hansen (R-Idaho), Larry McDonald (D-Ga.), and
and objective observers had commented on this contradic-
Dan Crane (R-III.).
tion, whereby the element of federal coercion by withdrawal
An earlier version of the Family Protection Act was intro-
of funds would be relied upon at the same time that the
duced by Senator Paul Laxalt during the previous Congress.
overweening influence of government is decried.
The measures in it touched not only on the strengthening
In the new Family Protection Act, there are instead pro-
of family resources, but also on the social issues of abor-
visions for "cause of action" for individuals who would
tion, school prayer, and the giving of federally-funded
have standing in the courts to enter into litigation in defense
contraception to minors without parental knowledge and
of their rights against institutions receiving federal funds.
consent. Therefore, the Family Protection Act in both
For example, the old bill provided that federal education
funds be withheld if schools attempted to exclude parents
(3) certain Government policies have directly or benignly under-
from visiting public school classrooms or school functions,
mined and diminished the viability of the American family;
and
or if schools failed to establish procedures whereby parents
(4) the policy of the Government of the United States, should,
in the community may review textbooks prior to their use
on and after the date of the enactment of this Act, be directed
in public schools.
and limited to the strengthening of the American family and
Few would disagree that in a democratic society simple
to changing or eliminating any Federal governmental policy
justice should favor the right of taxpayers and parents to
which diminishes the strength and prosperity of the Ameri-
can family.
review textbooks prior to their use in public schools. Yet,
as a matter of practical application, parents in most juris-
Title I: Family Preservation
dictions are not encouraged to exercise this right. However,
1. Rights of Parents - "in any action brought under
the consistent conservative view is that the federal govern-
the provisions of this title (in the U.S. Code), in-
ment should not be in the business of forcing the states to
volving the parental role in supervising and deter-
adopt such policies.
mining the religious or moral formation of a child,
The new Family Protection Act resolves this dilemma by
there is a legal presumption in favor of an expansive
providing individuals with the means to pursue their rights
interpretation of that role." (Section 101)
through the courts. The burden of litigation rests with the
2. Parental Notification Provides that parents be noti-
individuals, not the states or the federal government. (See
fied when an unmarried minor receives contraceptive
Title III, Education; the details of jurisdiction in these areas
devices or abortion-related services from a feder-
of cause of action are provided under Title VI.)
ally-funded organization. (Section 102)
Examination of litigation in recent years reveals a pattern
3. Juvenile Delinquency Prohibits the federal govern-
in which various groups have gone into court to demand
ment from pre-empting or interfering with state
that government owes them "services" as a civil right under
statutes pertaining to juvenile delinquency. Interstate
federal law. Indeed, the notion of "private attorney gener-
compacts will be maintained. (Section 103)
als" is now abroad whereby public service attorneys can
4. Child Abuse Restricts the federal govenment from
recover fees from the federal government and the client be-
pre-empting or interfering with state statutes per-
comes a mere conduit for the collection of lucrative legal
taining to child abuse. Revises the definition of child
fees at taxpayer expense.
abuse to exclude corporal punishment (spanking)
By contrast, the Family Protection Act simply provides
"applied by a parent or individual explicitly autho-
an avenue through the courts for individuals to pursue their
rized by a parent to perform such function." Federal
claims. The claims are not for government services, but for
funds for operating a child abuse program are sub-
procedures sought by those who wish to have government-
ject to specific authorization from state legislatures.
funded institutions respond to their primary rights as par-
(Section 104)
ents in the education of their children. For example, one
5. Spouse Abuse Restricts the federal government
measure provides cause for action if an educational institu-
from pre-empting or interfering with state statutes
tion receiving federal funds denies them the right to review
pertaining to spouse abuse. (Section 105)
textbooks prior to their use in public schools. A similar pro-
6. Legal Services: Abortion- Prohibits any funds un-
vision under the Education section provides that teachers
der the Legal Services Corporation from being used
have a cause of action if they are forced by institutions re-
in litigation seeking to compel abortions, assistance,
ceiving federal funds to pay union dues as a condition of
or compliance with abortion, or funding for abor-
employment.
tion. (Section 106)
7. Legal Services: Divorce Prohibits any funds under
What the Bill Contains
the Legal Services Corporation from being used in
litigation involving divorce. (Section 106)
The Family Protection Act has six titles, including Fam-
8. Legal Services: Homosexual Prohibits any
ily Preservation, Taxation, Education, Voluntary Prayer,
funds under the Legal Services Corporation from
and Rights of Religious Institutions and Educational Affil-
being used in litigation involving homosexual rights.
iates. A final section deals with technical details of imple-
(Section 106)
mentation.
9. Spouse Allowance Reinstates Department of De-
Section 2 of the Family Protection Act highlights its pur-
fense provision that service personnel living sepa-
pose:
rately from their families automatically send home
The purpose of this Act is to preserve the integrity of the American
family, to foster and protect the viability of American family life
the predetermined "dependent's allowance" for fam-
by emphasizing family responsibilities in education, tax assistance,
ily support. (Section 107)
religion, and other areas related to the family.
10. Homosexual Organizations Denies federal funds
In accordance with the purposes of this Act, the Congress finds that
to any organization which uses the funds for the ex-
(1) a stable and healthy family is the foundation of a society and
press purpose of advocating homosexuality as a life-
its culture;
(2) the family in America is the lifeline of America's continued
style. (Section 108)
existence and the cornerstone of America's growth and fu-
The Family Preservation section carries a number of af-
ture development;
firmations: (1) that parents have the primary right and re-
sponsibility in the character and moral development of
These provisions encourage families to provide for the
their children; (2) that parents must be notified regarding
needs of family members with their own resources. Note
federally-funded contraception given to their minor chil-
number 17 which encourages the adoption of hard to place
dren; (3) reinforcement of the primary role that states have
children.
traditionally held in the formulation of family-related law
Title III: Education
in areas such as spouse abuse, child abuse, and juvenile
18. Religion Courses Provides a cause of action for
delinquency; (4) protection of military families by rein-
parents if an educational institution receiving fed-
statement of the automatic "dependent's allowance"; and
eral funds prohibits them from participating in deci-
(5) prohibitions on federally-funded legal services from
sions regarding their child's enrollment in religion
entering into family-related fields such as abortion, ad-
courses. (Section 301)
vocacy of homosexual rights and divorce.
19. Visitation of Classrooms Provides a cause of ac-
Contrary to some media reports, the Family Protection
tion for parents if an educational institution receiv-
Act does not, in intent or in substance, seek to deny homo-
ing federal funds prohibits them from visiting their
sexuals benefits they now have under existing law. The clear
child's classroom. (Section 301)
intent is to deny federal funds to organizations engaged in
20. Teacher Unionization- a cause of action
the advocacy of homosexuality as an alternative lifestyle.
for individuals if an educational institution receiv-
The measures reinforcing state prerogatives in family-re-
ing federal funds requires forced payment of dues as
lated areas such as child abuse and spouse abuse are a re-
a condition for the employment of teachers. (Sec-
sponse to excessive regulation by federal bureaucrats who
tion 301)
have broadly interpreted congressional laws through regu-
21. Reviewing Textbooks Provides a cause of action
lations and informal communication networks with state
for parents if an educational institution receiving
officials.
federal funds prohibits parents from reviewing text-
Title II: Taxation
books prior to their use in public schools. (Section
11. Education Savings Account - Establishes a saving
301)
plan whereby relatives may deposit up to $2,500 tax-
22. Sexism in Textbooks Prevents federal funds from
exempt per year to save for a child's education. (Sec-
being used to promote educational material that
tion 201)
denigrates the role of women as it has been histori-
12. Tax-exempt Schools Schools operated by parents
cally understood. (Section 301)
are granted tax exemption if they fulfill certain re-
23. Teacher Qualifications States are ensured the right
quirements, and are granted accreditation for all
to determine teacher qualifications unhampered by
purposes of federal education law. (Section 202)
federal regulations. (Section 302)
24. Attendance Requirements States are ensured the
13. Multi-generational Household Allows a tax credit
right and authority to regulate attendance require-
of $250 or a tax exemption of $1,000 for each
ments at public schools without interference from
household which includes a dependent person aged
the federal government. (Section 302)
65 or older. This provision allows either the tax
25. Sex-intermingling- Local schools are given back
credit or the tax exemption not both. (Section 203)
the authority over sex-intermingling in sports and
14. Parental Care Trust Establishes a trust account
other school activities. (Section 302)
procedure similar to the Individual Retirement Ac-
26. National Labor Relations Board Jurisdiction - Pri-
count, under which taxpayers can save $3,000 a year
vate schools are exempted from National Labor Re-
for the support of an aged parent or a handicapped
lations Board jurisdiction. (Section 302)
relative. (Section 204)
27. Block Grants Most titles of the Elementary and
15. Retirement Savings Account for Spouses Contri-
Secondary Education Act are repealed and replaced
butions by an employed person to a savings account
with block grants of money to states as they deem
for the non-salaried spouse are tax-deductible up to
necessary. (Section 303)
$3,000 a year. (Section 205)
28. Release Time for Parenthood Education - If schools
16. Day Care-A corporation may deduct from taxes
require a course on parenting, parents may arrange
its contributions to a joint employee-employer day
for their children to be taught the course by a church
care facility. (Section 206)
or by the parents on a release time basis. (Section
17. Exemptions for Childbirth or Adoption Married
304)
couples filing jointly are granted an additional $1,000
29. Legal Services: Busing Prohibits any funds under
tax exemption for the year in which a child is either
the Legal Services Corporation from being used in
born or adopted. The exemption increases to $3,000
litigation involving busing solely for the achievement
if the child is born handicapped or if the adopted
of racial quotas or for desegregation purposes. (Sec-
child is handicapped, over the age of 6, or bi-racial.
tion 305)
Additionally, this provision allows the individual to
Comment: As previously noted, provisions in the educa-
deduct the amount of adoption expenses paid dur-
tion section provide opportunities to defend a right that is
ing the taxable year. (Section 207)
widely acknowledged in theory but often ignored or vio-
lated in practice: the primary right of parents to direct the
nection between women and the family as natural is really
education of their children.
a means by which society and men in particular have op-
For example, Provision 28 states that if schools require a
pressed women and kept them in positions of inferiority.
course in parenting, parents may arrange for their children
The larger question is, of course, whether it is the proper
to be taught the course by a church or by the parents on a
function of the federal government to finance educational
release time basis. As many parents are well aware, policy-
materials that promote anyone's opinion of what women's
makers in public schools have frequently elected to depart
roles were, are or should be. But the question at hand is, if
from basic education and have injected value-laden, ideo-
such programs continue to be funded, can they legitimately
logically-biased courses such as "parenting," which by defi-
continue to promulgate as definitive the radical women's
nition center directly on personal, family and religious
liberation viewpoint which holds that the historical con-
values. Frequently, such courses are installed without au-
nection between women and the family is obsolete and a
thentic consultation with the community or extensive re-
tool used by men to oppress women?
flection on what the purpose of the course is or what it is
A lengthy analysis of this one provision is necessary if
designed to accomplish.
only because it is one of the provisions that have been
Provision 22, which prohibits federal funds from being
blown out of proportion in the bill and derided as an abso-
used to promote educational material that denigrates the
lutely "crazy" and "sexist" provision that will require the
role of women as it has been historically understood (Sec-
federal government to sanction only textbooks that treat
tion 304) has predictably provoked charges that the mea-
women in traditional roles.
sure is a "sexist" attempt to mandate that women may only
Like other provisions touching on controversial areas,
be portrayed in traditional roles in textbooks. The Detroit
it really is addressing in another way the crucial policy
Free Press editorialized that the Family Protection Act
questions which the landslide election of November has re-
would "cut off federal funds to schools using books that
opened: what are the proper functions of the federal gov-
offend parents, especially books that 'denigrate the role of
ernment? Is there popular support for federally-funded
women as it has been historically understood'.' The edito-
programs intended to effect attitudinal and programmatic
rial questions whether this provision means that references
social change in family-related areas?
to such women as "Marie Curie, co-discoverer of polonium
The question is all too relevant since very recently, in the
and radium would be deleted from texts."
reconciliation measure-despite the recommendations of
It would be interesting to know what the Detroit Free
the Office of Management and Budget, a very tight budget,
Press would say about-the-fact that over the past decade,
and the repeated concern expressed by the liberals about
through such programs as the Women's Educational Eq-
maintaining a safety net for the poor the Women's Edu-
uity Act and "sex desegregation assistance centers," federal
cational Equity Act was extended as a categorical program
funds have been used to promote educational materials
with a $8 million authorization.
that present the radical feminist view as the only correct
Title IV: Voluntary Prayer
view on women's roles.
Section 401. The Voluntary Prayer and Religious Act of
This view embodies the propositions that (1) there are no
1981. This section is designed to reverse the last nineteen
sex-related distinctions between men and women that can
years of Supreme Court decisions and subsequent case law
be legitimately recognized, historically or any other way
regarding the constitutionality of state-sponsored religious
(except that biology does determine that women can give
exercise in the public schools.
birth to children while men can not); and (2) any recognition
The fact sheet from Senator Jepsen's office states:
of distinctions, historical or otherwise, constitutes discri-
minatory barriers to achievement by women as individuals.
The First Amendment states that Congress shall make no law re-
The phrase "role of women as it has been historically un-
specting an establishment of religion or prohibiting the free exer-
cise thereof;
derstood" as used in the bill means that our society has al-
ways understood women in the sociological and historical
The Supreme Court has prohibited state involvement in school
sense, as having a role which is naturally and organically
prayer or other religious activity strictly on the establishment
clause.
connected to the family, its purposes and functions.
Moreover, it is clear that society has always recognized
The "Exercise Clause" has taken a secondary role to the "establish-
the achievements of individual women in such roles as rul-
ment clause" in determining the constitutionality of state-spon-
sored religion. At best, the "Free Exercise Clause" should be given
ers, artists, authors, nurses, doctors and scientists. These
equal balance and authority with the establishment clause.
accomplishments and many others are understood as hav-
ing been made by individual women and have been so
A strong case must be made for the free exercise of religious expres-
sion whether public or private. Such expression is a fundamental
treated in any serious textbook.
freedom which should not be benignly denied in order to protect
Most people have no difficulty distinguishing between
other freedoms equally fundamental.
an understanding in the sociological or historical sense of
the natural connection between women and their roles in
This section directly confronts the religious freedom and
the family and women living out their lives as individuals
establishment clauses through congressional statutory law.
in whatever form or manner they might choose. What is at
The section provides that parents or guardians representing
issue is whether that historical understanding of the con-
a student who is being denied the opportunity (right) to
participate in religious exercises would have standing to
Senator Jepsen's office reports that a number of provi-
bring a civil action in federal or state district court.
sions of the Family Protection Act have been referred to
Comment: A recent fundraising letter of the American
Senate committees as private bills.
Civil Liberties Union charged that the Family Protection
S. 1577 - A bill to secure the right of individuals to the free exer-
Act would "restore prayer in the public schools." This is
cise of religion guaranteed by the first amendment of
one example of the distortions of the actual provisions of
the Constitution. Referred to Judiciary. (FPA Sec. 501)
the Act that are occurring. What the Family Protection
S. 1578 - A bill to restrict the federal government from preempt-
Act actually provides is that individuals who wish to claim
ing or interfering with State statutes pertaining to spousal
that their right to the free exercise of religion under that
abuse. Referred to Finance. (FPA Sec. 105)
clause of the Constitution has been abridged have a legiti-
S. 1579 A bill to amend the Internal Revenue Code of 1954 to
mate place in the courts to commence litigation.
allow corporations to deduct all contributions made to
Title V: Rights of Religious Institutions and Educational
a joint employee-employer day care facility. Referred
Affiliates
to Finance. (FPA Sec. 206)
Section 401 would bar the federal government from im-
S. 1580 A bill to amend the IRC of 1954 to provide a personal
posing "any legal obligation or condition" with respect to
exemption for childbirth or adoption and to permit the
curriculum, religious activities, licensure, conditions of
taxpayer to choose a deduction or a tax credit for adop-
employment, and operating procedures on a variety of so-
tion expenses. Referred to Finance. (FPA Sec. 207)
cial service organizations, if the organizations are "directly
S. 1581 - A bill to amend the IRC of 1954 to allow the taxpayer
or indirectly operated by a church or religious organiza-
the choice of a tax credit or a deduction for each house-
tion." Types of organizations and programs covered by
hold which includes a dependent person who is at least
this exemption from federal regulation would be church-
65 years old. Referred to Finance. (FPA Sec. 203)
operated child care centers, orphanages, foster homes, so-
S. 1582 A bill to amend the IRC of 1954 to exempt from taxa-
cial action training programs, emergency shelters for abused
tion certain trusts established for the benefit of parents
children or spouses, schools, juvenile delinquency or drug
or handicapped relatives, and to provide a deduction
abuse treatment centers of homes, and similar programs.
for contribution to such trusts. Referred to Finance.
This section would permit reasonable health and fire regu-
(FPA Sec. 204)
lations.
S. 1583 A bill to amend the IRC of 1954 to provide a deduction
Section 401(b)(1) is designed to ensure that religious or-
for contributions made by a taxpayer to an individual
ganizations (under the section) whether directly or indirectly
retirement plan for the benefit of a nonsalaried spouse.
affiliated with a church, are not exempt from the provisions
Referred to Finance. (FPA Sec. 205)
of the Civil Rights Act of 1964 with respect to race, creed,
Hearings on the tax provisions of the Family Protection
color, or national origin. And 501(b)(2) provides that these
Act will be held by the Senate Finance Committee during
church or religious organizations are exempt from any
the fall of 1981.
rules or regulations relating to affirmative action, quotas,
A revised version of the adoption provision in the Fam-
guidelines, or actions designed to overcome racial imbal-
ily Protection Act recently was enacted in the Economic
ance.
Recovery Tax Act of 1981.
Comment: The previously mentioned ACLU fundrais-
The bill has also been referred to various related House
ing letter interprets this section to mean that "efforts to end
committees. However, in view of the likely hostility from
tax subsidies of segregationist academies would be stopped."
the liberal Democratic leadership there, the bill's support-
Yet the American consensus, forged at a very high price
ers are looking to passage of provisions of the bill as they
over the past two decades, strongly affirms equality of
relate to other measures moving through the House and
treatment under the law for all persons regardless of race,
Senate.
creed, color or national origin. Just as there is a small
Moreover, there is a feeling that in view of the media
minority of people who continue to view others as inferior
hostility, strong grassroots support is necessary for provi-
because of their race, there is a small minority that wishes
sions of the Family Protection Act to achieve final passage
to stand this unjust proposition on its head with a coercive
in both houses of Congress.
federal apparatus to enforce affirmative action.
For additional information on the Family Protection
Title VI contains miscellaneous provisions relating to
Act, contact Senator Roger Jepsen, U.S. Senate, Washing-
jurisdiction for causes of action, limitations on actions,
ton, D.C. 20510.
provisions for violation reports to Congress and effect on
other laws.
Additional Information on the Family Protection Act
Education Update is a newsletter concerned with de-
velopments in education and family-related issues.
On June 17, 1981, the bill was referred to the Senate
Subscriptions to Education Update are complimen-
Committee on Finance. On June 23, the Committee re-
tary. Address comments, inquiries and information
quested executive comment from OMB and the Treasury
to Update's editor, Onalee McGraw.
Department.
MATERIALS ON EDUCATION FROM
100 or more copies). This definitive essay by Dr.
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Lorand on the dangers of sex education in the
schools provides valuable insights and documenta-
The Family, Feminism and the Therapeutic State
tion for communities debating classroom sex
by Onalee McGraw ($2.00 each; 50% discount on
education.
orders of 50 or more copies). Analysis of the ma-
jor family-related questions now up for debate on
Family Choice in Education: The New Imperative
the "social issues" agenda. Useful as an informa-
by Onalee McGraw ($1.00 each; 50% discount on
tion tool on the Family Protection Act.
orders of 50 or more copies).
The Economics of Education Tax Credits by E. G.
Secular Humanism and the Schools: The Issue
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Whose Time Has Come by Onalee McGraw ($1.00
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Additional copies of this issue of Education Up-
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"The Marijuana Epidemic" by Stuart M. Butler,
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Heritage Foundation Backgrounder No. 140
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Don Home
Continueu
un
A new pro-family group
really belongs on the left
and because the right is the only force
By Michael P. Lerner
that speaks to the problem
Family life is indeed in crisis, and the
REG CALVERT MISUN-
difficulties in building long-term rela-
G
derstands the major
tionships are increasing. But this is a
points made by those
function of the organization of corpor-
who are attempting to
ate capitalist society that has not assim-
take the issue of the
ilated feminist values. In fact, the social
family out of the hands
order that the right is committed to de-
of the right.
fending is the source of the problem.
The growth of support for the right
A real pro-family coalition, with a
among working people is in part the re-
strategy for reclaiming family support,
belongs on the left. I propose three parts
The family's crisis
Lionel Delevingne
for a left campaign:
1) A coalition to defeat the Family Pro-
is a function of a
tection Act, and to put forward in its
2) A National Family Day-a series of
stantly encourages us to be distrustful of
place a Family Bill of Rights. The Fam-
community celebrations of support for
each other, and that inflicts daily op+
society that has
ily Protection Act is a motley assortment
those who are engaged in building Tam-
pression at work and demeaning oppres-
of New Right programs aimed at stabil-
ilies of every sort. Family Day is a way
sion of women.
not assimilated
izing an. oppressive family system. Our
to capture public attention, to put for
3) Family support networks can be a
response must be the creation of a nation-
ward dur Family Bill of Rights and to
forum for taking the messages of femin-
al Bill of Rights for families that would
promote the message that the real way to
ism to the sectors of the population who
feminist values.
give real support for families in all their
strengthen families is to build a com
have not yet been reached. In. these
varieties (including gay families, single
munity of support for them. Commun-
groups, we can begin to stimulate re-un-
sult of its recognition of the crisis in fam-
parent families, extended families). Some
ity is the key to family life, but it has
derstanding of our personal lives in social
ily life and of people's desire for safety
of the tenets of a Bill of Rights for Fam-
been undermined by corporate capitalist
terms. Of course, to get these to be used
and stability in their lives. But while the
ilies: Full employment, adequate health
society,
by sectors of the population who normally
right is correct in identifying a major
care, free community controlled child
Family Day acknowledges that every
would think of any discussion of their per-
source of people's anxieties and fears, it
care, extended maternity and paternity
one faces problems in family life. Unfor
sonal lives with others as a potential indic-
is dead wrong in its analysis and pro-
leaves, safety and health committees at
tunately, most people internalize these
ation that they are identifying themselves
posed solutions.
the workplace with power to enforce
problems and blame themselves for their
as "sick" or "crazy" we need to legitimize
The right blames the problems on gays,
changes in working conditions to make
personal difficulties and tensions. This
this activity. Family Day can begin to do
the women's movement and "govern-
them less stressful (which stress is typi-
feeling immobilizes people, makes them
that, but ultimately participation of the
ment interference" and calls for a return
cally brought home and causes much of
feel powerless and opens them to false
trade unions and the churches in building
to à traditional male-dominated family.
the tensions in family life), a 35-hour
solutions promoted by the right. Our
a national pro-family coalition will be re-
People listen to these solutions because
workweek with no loss of pay and full
message is that many of these problems
quired
of the pain they feel about family life,
equality for women
have been caused by a society that con-
Continued on following page
ET THOI 100.08 1964 emin 3894F
и IN THESE IMES SEPT. 30-OCT 1981
our expectations, most people do not re-
ience in family life, while also acknow-
movement could move off the defensive
Lerner
ject the ideal of family life, but are upset
ledging that "family" is the only institu-
in the period ahead,
that the ideal has not been realized, We
tion that provides caring and love for its
Our demand is: Create a society that is
can help people understand what stands
members, This ideal provides the basis
safe for love and intimacy. This is the
in the way of that realization-but not if
for the critique of patriarchal families
kind of pro-family program that offers a
Continued from preceding page
we appear to be rejecting the deepest
and capitalist social relations.
possibility for rejuvenation of liberal and
Hard-core New Rightists have visions
hopes and desires of the people by sug-
One of the main impediments to build
of a patriarchal family when they talk of
gesting that "family" is reactionary,
ing stable long-term relationships today is
"defease of the family," but most people
To support family life in this way is not
the continued oppression of women, both
A "defense from
who respond to them have something dif-
to idealize the family. Our message is that
in the marketplace and in family relation-
ferent in mind. The word "family" is a
attack" or a
what people really want in family life-
ships. These inequalities are destabilizing
code word for most people that conjures
long-term committed, loving relation-
and lead to the tensions in family life. We
up images of long-lasting intimate rela-
ships-can be realized only through a
support women leaving oppressive rela-
"reaction of
tionships, and the place in which one gen-
transformation of this society along so-
tionships and see the development of
cration nurtures the next. Even when our
cialist and feminist lines. In that, we ac-
communities of support for single people
fear in the face
actual experience does not correspond to
knowledge the pains that people exper-
as a crucial part of the process by which
we build a society that can give meaning-
of change"?
ful support to family life. Only when
families are built on free choice, not on
Peoples College of Law
left forces in 1982. Without this, there
coercion of any sort, can they provide the
will be no stopping the right in the next
basis for long-lasting loving relationships.
three years.
Founded by la Raza Law Students Association, Asian Law Collective
The pro-family approach outlined
Michael P. Lerner heads the Institute
National Lawyers Guild and National Conference of Black Lawyers
here can get people to listen to a socialist
for Labor and Mental Health in Oak-
and a feminist analysis. It is also the
land, Calif.
New accepting carollment applications for January, 1982.
best and most effective way to defend
A national conference to develop the
Deadline for applications: November 20, 1981.
the women's movement and the gay
Family Bill of Rights and form this co-
PCL's goals are to train
movement from attack. And it is the
alition will be held in January 1982. For
peoples' lawyers and have
most likely way that leftists in the labor
details, write to: Friends of the Family,
a student body of ½
movement, women's movement, civil
3137 Telegraph Ave., Oakland, CA
Third World/Working Class
rights movement and environmental
94609.
students with 50% women.
Mama's apron strings and Daddy's lunch
Its unaccredited
four-year evening
Calvert
pail.
Of course the changes are scary.
program leads to
Change always produces anxiety. But if
we want to be part of a liberating future,
a J.D. and the
Continued from preceding page
we must have the courage to grasp the
California Bar Exam.
Among the gay men and lesbians we
creative potential in the process of which
Tuition is $450
studied, relationships often resembled
we are a part. The impulse to romanti-
per semester.
best friendships."
cize the past in the face of changing so-
In rushing to the "defense of the fam-
cial structures is a reactionary impulse.
Admission based
ily" we are falling prey to the same kind
The "good old days" are never more
primarily on the
of fear that is manipulated by the New
than the same old pile of political horse-
demonstrated commitment
Right for its reactionary political pur-
shit served up by the same "good old
poses. As socialists, we ought to be the
boys" down at the county courthouse
to the struggle for social
first to point out that all the talk about
every time the job of re-electing the in-
change. Two years of college
defending the family is a reaction of fear
cumbent sheriff comes around.
or equivalent also required.
in the face of change. The deep changes
Greg Calvert is @ gay activist and writer
taking place in the structure of human
who
served
as
National
BONNIE BRAE
Congressional Record
United States
of America
PROCEEDINGS AND DEBATES OF THE
97ᵗʰ
CONGRESS, FIRST SESSION
Vol. 127
WASHINGTON, WEDNESDAY, JUNE 17, 1981
No. 92
Senate
SUMMARY OF PROVISIONS CONTAINED IN THE
ity over minor children. Our cases have con-
FAMILY PROTECTION Act OF 1981
sistently followed that course
The statist
notion that governmental power should
RIGHTS OF PARENTS
supersede parental authority in all cases
Section 101. This- section would amend
because some parents abuse and neglect
Chapter 111 of Title 28 of the U.S. Code (28
children is repugnant to American tradition.
U.S.C. 1651 et seq.) by adding at the end
See also H. L. V. Matheson,
U.S.
thereof a provision providing for a "legal
49 USLW 4255 (1981); Quilloin V. Walcott,
presumption in favor of an expansive inter-
434 U.S. 246 (1978); Stanley V. Illinois, 405
pretation" of the parent's role "in supervis-
U.S. 645 (1972); Ginsberg V. New York, 330
ing and determining the religious or moral
U.S. 629 (1968).
formation of his child" in federal cases in-
This expansive view of parental authority
volving that role.
over children is not without limit. of course.
Although the legal presumption that would
be stated by this section is not now codified
in federal statutes, it would appear to con-
The Court has affirmed the right of govern-
form to existing case law determinations re-
ment to intervene in instances in which
garding the parent's role in the religious
parents' decisions threaten significant harm
and moral formation of his child an pro-
to the health or safety of the child or create
tected by the free exercise and due process
a social burden. See, e.g., Prince V. Massa-
clauses of the Constitution. In Pierce V. so-
chusetts, 321 U.S. 158 (1944); Planned
ciety of Sisters, 268 U.S. 510, 534-35 (1925),
Parenthood of Central Missouri V. Danforth,
the Supreme Court struck down a State stat-
428 U.S. 52 (1976), Parham V. J. R., supra;
ute requiring parents to send their children
Application of President and Directors of
public, but not private. school, stating:
Georgetown College, Inc. 118 U.S. App. D.C.
we think it entirely plain that the
80, 331 F. 2d 1000, cert. den. 377 U.S. 978
Act of 1922 unreasonably interferes with the'
(1964). But absent proof of such significant
liberty of parents and guardians to direct
threats to the child or society, the pre-
the upbringing and education of children
sumption is in favor of parental authority.
under their control. The child is not
It is my opinion that this section is con-
the mere creature of the State: those who
sistent with existing interpretations of that
nurture him and direct his destiny have the
presumption, and thus would not alter
right, coupled with high duty, to recognize
existing law, but simply seek to codify exist-
and prepare him for additional obligations.
ing case law which presumptively favors
In Wisconsin V. Yoder, supra, the Court.
parental rights.
upheld the right of Amish parents to with-
This section would appear to be within
draw their children from public school after
Congress' power, and therefore, poses nc
the eighth grade, stating:
apparent constitutional implication.
this case involves the fundamental
PARENTAL NOTIFICATION
interest of parents. as contrasted with that
Section 102(a). This section would pro-
of the State, to guide the religious future
vide that no program may receive federal
and education of their children. The history
funds unless, prior to providing a contracep-
and culture of Western civilization reflect a
tive device, abortion. counseling, or an abor-
strong tradition of parental concern for the
tion to an unmarried minor, the agency
nurture and upbringing of their children.
notifies the minor's parents or guardian.
This primary role of the parents in the up-
Federal law does not now require parental
bringing of their children is now established
notification as a condition of federal fund-
beyond debate as an enduring American tra-
ing of programs relating to family planning.
dition. The duty to prepare the child
For instance, family planning services spe-
for "additional obligations." referred to by
cifically targeted to adolescents are funded
the Court (in Pierce), must be read to include
through discretionary grants awarded by the
the inculcation of moral standards. religious
Office of Adolescent Pregnancy Programs.
beliefs, and elements of good citizenship.
authorized under titles VI of P.L. 95-626.
'However read, the Court's holding in Pierce
The law requires that a grantee's family
stands as a charter of the rights of parents
planning services be limited to counseling
to direct the religious upbringing of their
and referral unless other services are not
children. 406 U.S. at 3232-233.
available in the community. The grantee is
More recently, in Parham V. J.R., 442 U.S.
required to inform any pregnant adolescent
584, 602-03 (1979) the Court reaffirmed this
of the availability of counseling on all op-
presumption in rejecting the argument that
tions regarding her pregnancy, which ap-
a parent's decision to commit his child to a
pears to include abortion counseling. How-
mental institution must be reviewed by the
ever, the law specifically prohibits expendi-
government in a formal, adversary pre-ad-
ture of any funds under the Act for the per-
mission hearing:
formance of an abortion. The law presently
Our jurisprudence historically has re-
mandates grantees to "encourage" uneman-
flected Western civilization concepts of the
family as a unit with broad parental author-
213
cipated minors receiving services to consult
Act (42 U.S.C. 5601 et seq.) by adding a new
with their parents, but grantees are not re-
section. Subsection (a) of the new section
quired to make any services contingent on
would stipulate that no federal program. di-
parental notification. Therefore, this section
rective, guideline, or grant may be construed
would mandate any services be contingent
to override any existing State law relating to
on parental notification.
juvenile delinquency. Subsection (b) of the
Family planning services are also funded
new section states that nothing in this new
under title XIX of the Social Security Act
section should be construed to permit a State
(the Medicaid program), under title XX of
to fail to participate or cooperate in any
the Social Security Act (social services),
program for the return on runaway youths.
under title III-D of the Public Health Serv-
whether by interstate compact or otherwise.
ice Act (primary health care). and under
The Juvenile Justice and Delinquency Pre-
title X of the Public Health Service Act
vention Act currently contains no provisions
(family planning). None of these programs
comparable to those in section 103.
requires parental notification. as follows:
CHILD ABUSE
"Title XIX of the Social Security Act spe-
Section 104.
cifically requires States to offer family plan-
Section 104(a) would provide that no fed-
ning services and supplies, including serv-
eral program, directive, guideline, or grant be
ices and supplies to minors. in order to qual-
construed to override any existing State law
ify for matching funds under the Medicaid
relating to child abuse. Section 104(b) would
program. There is no parental notification
provide that no federal funds for any pro-
requirement. The law is silent on whether
gram related to child abuse may be spent in
family planning services include abortion
any State unless that State's legislature spe-
counseling or the provision of abortions.
cifically authorizes such a program. Section
"Under title XX of the Social Security Act.
104(c) would, for the purposes of the Child
States are authorized to use their matched
Abuse Prevention and Treatment Act (42
federal funds to offer family planning serv-
U.S.C. 5010 et seq.), qualify the definition of
ices. including medical care related to fam-
"child abuse" to exclude discipline or cor-
ily planning, to anyone. There is no parental
poral punishment by a parent or any persons
notification requirement. The law is silent
designated by a parent.
on whether family planning services include
There is no comparable provision to sec-
abortion counseling or abortion, but, instead,
tion 104(a) in current federal law, although
appears to leave the matter to the States'
federal law does not now appear to override
discretion.
State laws relating to child abuse. Section
"Subpart I of title III-D of the Public
104(b) adds a new condition to State pro-
Health Service Act authorizes grants to com-
grams on child abuse which seek federal
munity hospitals (section 328). migrant
funding under either the Child Abuse Pre-
health centers (section 329). and community
vention and Treatment Act of titles IV or xx
health centers (section 330) for the provi-
of the Social Security Act, namely, that such
sion of medical services including primary
program be "specifically authorized and es-
health services. Primary health services are
tablished" by their State legislature(s It
defined to include family planning services,
would also bar. direct grants from the fed-
which, in turn, are left undefined. There
eral government to child abuse programs that
are no provisions relating to family planning
are privately operated in any State, (as is
services specifically for minors, and no pa-
now possible under the Child Abuse Preven-
rental notification requirement.
tion and Treatment Act), and require that
"Title X of the Public Health Service Act
such grants be limited to, or channeled
authorizes direct grants and contracts to
through, State programs that have been spe-
public and private nonprofit agencies (sec-
cifically authorized by the State legisla-
tion 1001), formula grants to States (sec-
ture(s).
tion 1002), and training grants to organiza-
Section 104(c) takes the entire existing de-
tions and individuals (section 1003) to
finition of "child abuse" in the Child Abuse
establish and operate family planning proj-
Prevention and Treatment Act and adds a
ects. Section 1001 specifically mentions fam-
qualifying phrase at the end that would ex-
ily planning services for adolescents, and the
clude from the definition corporal punish-
other two sections do not exclude adoles-
ment administered by a parent or an agent
cents. There is no parental notification re-
of the parent. This latter change would not
quirement in any of the three sections. Sec-
materially alter eisting law: in virtually ev-
tion 1008 of this title specifies that no funds
ery State, reasonable corporal punishment
may be used in programs where abortion is
administered by a parent or a person stand-
a form of family planning."
ing in loco parentis is privileged. See Baker v.
In addition to the above funded programs.
Owen, 423 U.S. 907, aff'g 395 F. Supp. 294
title IV-A of the Social Security Act (Aid to
(M.D. N.C., 1975): Ingraham V. Wright, 430
Families with Dependent Children-AFDC)
U.S. 651 (1977).
requires (but does not fund States to ensure
SPOUSE ABUSE
that family planning services are available
Section 105. This section would provide
to AFDC recipients. including sexually active
that no federal program. directive, guideline.
minors). There is no parental notification
or grant shall be construed to override any
requirement.
existing State law "relating to spousal abuse
Section 102 (b). This section would amend
or domestic relations."
part C of the General Education Provisions
There is no comparable provision to section
Act (20 U.S.C. 1232 et seq.) by adding a new
105 in current federal law.
section stipulating that no programs under
LEGAL ASSISTANCE RESTRICTIONS
the Act may receive federal funds unless.
prior to providing a contraceptive device.
Section 103. This section would impose
abortion counseling. or an abortion to an
restrictions on the kinds of legal representa-
unmarried minor. the minor's parents or
tion that could be offered by legal aid pro-
guardian have been notified.
grams funded by the Legal Services Corpora-
tion (LSC). The section would amend sec-
JUVENILE DELINQUENCY
tion 1007(b) of the Legal Services Corpora-
Section 103. This section would amend the
tion Act (42 U.S.C. 1996f(b)) to bar funding
Juvenile Justice and Delinquency Prevention
under that Act to entities which provide
legal assistance:
3B
"(1) which seeks to procure an abortion
including the following categories of chil-
or to compel any individual or institution
dren if they are dependent on a member:
to perform an abortion or assist in the per-
a stepchild. an adopted child: and illegiti-
formance of an abortion. or provide facili-
mate child whose alleged father-if a mem-
ties for the performance of an abortion. or
ber of the armed forces-has been judicially
to compel State or federal government fund-
decreed to be the childs father or ordered to
ing for an abortion. or
contribute to the child's support, or whose
"(2) in any case relating to a divorce. and
parentage has been admitted in writing by
"(3) in any case seeking to adjudicate the
the military member. Such unmarried chil-
issue of gay rights."
dren must be either under 21 years of age or
The restriction with respect to abortions
both (a) incapable of self-support because
is broader than existing law: Existing law
of mental or physical incapacity. and (b) in
bars such representation where the per-
fact dependent on the military member for
formance of the abortion or provision of
over one half of their support.) The relation-
facilities is "contrary to the religious beliefs
ship between a stepparent and a stepchild
or moral convictions of such individual or
is deemed to be terminated-for purposes of
institution". Ths section would eliminate
eligibility for dependents' assistance allot-
that proviso. and would further extend the
ments-if the stepparent is divorced from
bar on representation to include suits which
the parent by blood.
seek "to compel State or federal government
Subsection (b) of the proposed section 107
funding for an abortion." See 42 U.S.C.
of the Family Protection Act would amend
2996f(b)(8).
the table of sections of chapter 13 of title 37.
The restriction with respect to divorce and
U.S. Code. to add at the end a reference to
gay rights would be new.
the new section 708 of title 37.
Finally, it should be noted that existing
Comparison with current law
law imposes restrictions only on the use of
federal funds made available through the
Current law provides for no mandatory
Legal Services Corporation. This new section
allotments of any portion of a military mem-
would place these restrictions on all activi-
ber's pay to his dependents when he is
ties of LSC grantees, whether paid for out of
separated from them.¹
LSC funds or not.
No such allotments have ever been required
for either commissioned or warrent officers.
ARMED FORCES DEPENDENTS' ASSISTANCE
However, from 1950 through 1973 certain en-
ALLOTMENTS
listed personnel were required to establish
Section 107. This section would provide for
an allotment payable directly to their de-
the mandatory direct payment of an amount
pendents in order to qualify for basic allow-
equal to a military member's basic allowance
ance for quarters (BAQ) rates specified for
for quarters (BAQ) to the member's depend-
persons with dependents.
ents. when those dependents are living sep-
The Dependents' Assistance Act of 1950
arate from the member. The allotment would
(ch. 622, 64 Stat. 794: Act of September 8.
be deducted from the pay and allowances
1950). required that all enlisted personnel
received by the member.
make allotments such as those described to
Subsection (a) of section 107 would add
be eligible for BAQ as "with dependents"
a new section 708 to chapter 13 of title 37,
rates. It further authorized (in section 8 of
U.S. Code, Pay and Allowances of the Uni-
the Act) that the Secretary concerned
formed Services, entitled "Allotment for de-
could. without the consent of an enlisted
pendents of members of the armed forces."
member, direct that a payment of BAQ with
"Armed forces" are defined in 37 USC 101 as
dependents be made, and the requisite allot-
meaning the Army. Navy. Marine Corps, Air
Force. and Coast Guard.
A family separation allowance is author-
Subsection 708(s) (1) provides that sub-
ised by 37 USC 427 to equitably reimburse
ject to such regulations as may be prescribed
members of the uniformed services involun-
by the Secretary of Defense, the Secretary:
tarily separated from their dependents for
concerned (defined in 37 USC 101 as the sec-4
the average extra expenses that result from
retaries of the military departments or the
the separation. and to reimburse members
Secretary of Transportation, in the case of
who must maintain a home in the United
States for their dependents and another
the Coast Guard when it is not operating at
home overseas for themselves for the aver-
part of the Navy) shall pay a monthly de
age expenses of maintaining the overseas
pendents' assistance allotment to the dei
home. The family separation allowance,
pendents of any member of the armed forces
however, is payable in addition to any other
when such dependents are living separate
allowance or per diem to which the member
from the member. All officers (commissioned
may be entitled. It is not deducted from the
and warrant) and enlisted personnel of at
member's pay and allowances and allotted
grades are included. The amount paid to the
directly to dependents.
dependents of a member shall be deducted
from the pay and allowances received directly
ment to a member's dependents be estab-
by the member.
lished, if the enlisted member had depend-
Subsection 708(a) (2) specifies that the
ents and did not voluntarily make an allot-
amount of dependents' assistance allotment
ment and thereby qualify for BAQ with
to be paid shall be equal to the BAQ to
dependents.
which the member is entitled. A member
The Act of July 10, 1962 (76 Stat. 152)
may, however. increase the amount of allot-
modified the system, in effect leaving the
ment to be paid to his dependents by re-
mandatory allotment requirement only
questing the Secretary concerned. in writing.
for junior enlisted personnel (grades E-1
to deduct an additional amount from the
through E-3 and grade E-4 with less than
member's pay and allowances to be sent to
four years of service). Rather than extending
the member's dependents. Such an addi-
the allotment requirement (it had always
$10.00. tional allotment may be in any multiple of
been a temporary provision requiring ex-
tension every few years since its enactment
Subsection 708(c) defines the term "de-
in 1950) it was allowed to expire as of July 1.
pendent," with respect to a member of the
1973. Since then, there has been no require-
armed forces, as meaning (1) a member's
ment of any sort for military personnel to
spouse: and (2) a member's unmarried child
directly allot any of their pay to their de-
pendents.
4
There are several major differences between
There would be a $2,500 limit on the
the old Dependents' Assistance Act (DAA) al-
amount which could be contributed to each
lotments and those which would be required
account each year. but beginning in 1983
by section 107 of the Family Protection Act:
that amount would be adjusted annually for
"The DAA applied only to enlisted per-
inflation. The Secretary of Treasury would
sonnel and after 1962 only to junior enlisted
determine and publish by October 1 of each
personnel. Section 107 would apply to com-
year the inflation adjustment factor for the
missioned and warrant officers in all grades as
preceding 12-month period ending on July
well as all enlisted personnel.
31. The inflation adjustment factor would be
"The DAA allotment procedure required
determined by dividing the Consumer Price
the member to allot not only his monthly
Index for all items-United States city aver-
BAQ. but an additional amount deducted
age for the most 12-month period ending on
from his basic pay, to his dependents. The
July 31 by the same index for the 12-month
proposed statute requires only an amount
period ending on July 31, 1980. This result
equal to the BAQ to be allotted (although
would be multiplied by $2,500 to determine
the member may voluntarily allot more).
the inflation-adjusted amount. (Proposed
"Under DAA. a direct allotment to depend-
Code section 221 (b) (3), (5)).
ents was made regardless of whether or not
If more than one person contributed to
the member and his dependents were living
the same account during the year. the $2,500
separately. Section 107 would require such
or the inflation-adjusted amount deduction
an allotment only if the member was living
would be allocated proportionately among
separate from his dependents.
all individuals contributing to the account.
"The DAA included dependent parents in
(Proposed Code section 221 (b) (4)).
its definition of dependents coming under
Providing that the eligible individual was
its purview. Section 107 would apply only
under age 21 during the year the contribu-
to spouses and unmarried children."
tion was made and was not enrolled as a
FEDERAL FUNDS FOR HOMOSEXUAL ADVOCACY
full-time student at an eligible institution
for more than four weeks during a calendar
Sec. 108. This section would bar any fed-
year. an education savings account could be
eral funds from being made available to any
set up for the taxpayer. a child or stepchild
individual or organization for the purpose
of the taxpayer. or any of the following rela-
of "advocating, promoting. or suggesting
tives of the taxpayer: grandchildren or their
homosexuality. male or female, as a life
descendants, brothers. sisters. stepbrothers,
style."
stepaisters, fathers, mothers. grandparents,
Changes from existing law
nieces, nephews, aunts, uncles, sons-in-law,
This condition on federal funding does not
daughters-in-law, fathers-in-law, mothers-
now exist in this form in federal law but
in-law, brothers-in-law, and sisters-in-law.
would not appear to alter the existing situa-
(Proposed Code section 221 (c) (1)). This
tion. In 1981 Congress added to the continu-
definition prohibits contributions to an edu-
ing resolution for the fiscal 1981 appropria-
cation savings account once the beneficiary
tions for the Legal Services Corporation a
enters an eligible institution. Since a private
prohibition on the use of federal funds "to
elementary school can be an eligible institu-
provide legal assistance for any litigation
tion, this provision may not facilitate saving
which seeks to adjudicate the legality of
for secondary or higher education.
homosexuality." P.L. 96-536 (Dec. 16. 1980)
An education savings account would be a
(incorporating by reference the restrictions
United States trust for the purpose of pay-
contained in H.R. 7584 as enacted prior to its
ing the eligible expenses of an eligible in-
veto by the President) This section would
dividual. (Proposed Code section 221 (c) (2))
not affect that prohibition. In addition, it
Custodial accounts where the assets were
might be noted that existing law does not
held by a bank or other person satisfactory
appear to provide funds for the purpose of
to the Secretary of the Treasury could con-
promoting homosexuality. Thus, this section
stitute education savings accounts if they
would not appear to materially affect exist-
would qualify as education savings accounts
ing grant programs.
but for the fact that they were not trusts.
The section nevertheless is designed to
The custodian would be treated as trustee.
codify into statutory law a prohibition of any
(Proposed Code section
federal funds which are used solely for the
The governing instrument of the trust or
purpose of "advocating. promoting. or sug-
custodianship would have to meet these re-
gesting homosexuality, male or female, as a quirements:
life style."
(1) Contributions could not be accepted
It is not the intention of this section to unless they were in cash, stocks, bonds, or
prohibit or deny social security benefits, other readily tradeable securities.
welfare. veterans benefits. student assistance (2) Contributions could not exceed $2,500
or other federal assistance to-any individual per year.
who may suggest or intimate homosexuality
(3) The trustee would have to be a bank
as a life style.
or another person acceptable to the Secretary
TITLE II-TAXATION
of the Treasury.
Section 201.
(4) The trust assets could not be invested
Section 201 adds two new sections to the
in life insurance contracts unless the trust
Internal Revenue Code to provide for educa-
was the beneficiary of the contracts and the
tion savings accounts which are similar in
insured is the grantor of the trust. The face
theory to individual retirement accounts
amount of the contracts must not exceed an
which exist in present law for retirement
amount equal to $2,500 times the potential
life of the trust i.e. (the number of years
savings.
Proposed new section 221 would allow in-
from the establishment of the trust until the
dividuals & deduction for contributions of
beneficiary of the trust reaches age 25).
cash or readily tradeable stocks, bonds, or
other securities to an education savings ac-
of the individual (8) contributing to the ac-
count for an eligible individual. Each edu-
count, but if more than one individual has
cation savings account could only be estab-
made contributions to the account, the con-
lished for one individual and an individual
sent of all the contributing individuals
could not be the beneficiary of more than
would be required.
one account. (Proposed Code sections 221 (a)
and 221 (b) (1) and (2)
5B
erated. not-for-profit, day or residential
(6) The assets of the trust would not be
school which provides education that does
commingled with other property except in a
not exceed grade 12. Both elementary and
common trust fund or common investment
secondary schools would be required to be
fund.
(7) The assets in the trust on the date that
exempt from Federal income taxes under
Code section 501(a) and (c) (3) and they
the beneficiary attains age 26 are required to
could not exclude persons from admission
be distributed to each of the trust's con-
tributors in the proportion to their contribu-
to, or participation in, the school on account
tions to the trust. (Proposed Code section
of race, color. or national or ethnic origin.
(2)
Facilities which offer education for individ-
Contributions to the trust would be
uals who are physically or mentally handi-
deemed made during the preceding calendar
capped as a substitute for regular public ele-
year if the contribution is made on account
mentary or secondary education are included
of that calendar year and is made by the time
within the definitions of elementary and sec-
prescribed by law for filing the return for
ondary schools; however, the handicapped
the taxable year which covers December 31,
facilities do not have to be privately oper-
of the preceding year. (Proposed Code section
ated. (Proposed Code section (9)).
(3)
Proposed section 221(d) outlines the tax
Contributions of stocks, bonds. and the
treatment of distributions from the educa-
like will be valued at market value on the
tion savings account. First, the general rule
date of contribution or the last preceding
is that unless the distribution is used ex-
day on which they could have been traded
clusively to pay the education expenses in-
on an established securities market. (Pro-
curred by the beneficiary of the account. any
posed Code section 221 (c) (4)).
distribution from the account will be in-
Eligible expenses would mean tuition and
cluded in the gross income of the contribu-
fees required for enrollment and attendance
tors to the account in the same proportion
of a student at an eligible educational insti-
as the amounts which they have contributed
tution. fees, books, supplies, and equipment
to the account over the years.
required for courses, and reasonable allow-
Second. distributions which are the result
ance for meals and lodging and any income
of corrections of excess contributions do not
due because the beneficiary must include the
fall within the general rule, providing the
distributions in his or her income.
correction is made within the time for filing
Eligible educational institutions would in-
the return for the year involved, that no de-
clude an institution of higher education, a
duction was taken for the excess contribu-
vocational school, a secondary school, or an
tion, and that any interest or dividends at-
elementary school. Institution of higher edu-
tributable to the excess contribution is also
cation means institutions described in sec-
returned. The person to whom the excess
tion 1201(a) or 491(b) of the Higher Edu-
contribution is returned must report the in-
cation Act of 1965. (See 20 U.S.C. = 1141 and
come earned on the excess contribution.
1088). According to those sections an insti-
Third, the beneficiary of the savings ac-
tution of higher education is one which has
count may elect to be taxed on distributions
high school graduates or holders of an equiv-
from the savings account which are spent
alency certificate as regular students, which
on eligible expenses. First, he or she may
is legally authorized to provide a postsec-
elect to include the distribution of the gross
ondary school education, which provides a
income in the years the distributions are
program of education leading to a bachelor's
made. Second. he or she may elect to defer
degree or provides at least a two-year pro-
the taxes until the taxable year in which
gram which is acceptable for full credit to
the individual turns age 25. In that year.
a bachelor's degree, which is a public or non-
and for the nine succeeding taxable years,
profit institution, and is accredited or, if
the beneficiary will include in his or her
not accredited, meets certain alternative cri-
gross income 10 percent of the amounts paid
teria. Schools of nursing, post secondary vo-
or distributed from the account which are
cational institutions. and certain other pro-
used to pay that individual's educational ex-
prietary institutions of higher education are
penses.
also included in this definition. (Proposed
If a distribution from the account is not
Code section 221(c) (6) and (7)).
used for educational expenses of the benefi-
A vocational school would mean an area
clary. the contributors to the account will
vocational education school. as defined in
be taxed on the amount not used properly
section 195(2) of the Vocational Education
plus an additional 10 percent of the deemed
Act of 1963, which is in any State. (See 20
distribution. (Proposed Code section 221 (f)
U.S.C. = 2461(2) and (8)). The term area
(1)).
vocational educational school is defined in
Although paragraph (f) (2) is entitled
that act to mean a specialized high school,
"Disqualification cases," the proposed statu-
the department of a high school, a technical
tory language states that if an amount is
or vocational school, or the department or
includable in the gross income of an indi-
division of a junior college, community col-
vidual under subsection (d), his tax shall
lege or university used exclusively or princi-
be increased by an amount equal to 10 per-
pally to provide vocational education to per-
cent of the amount required to be included
sons who are available for study in prepara-
in his gross income. There is no reference
tion for entering the labor market. Some of
to disqualification in the statutory lan-
those types of schools have to meet additional
guage. Subsection (d) covers the tax treat-
requirements. A State is defined to include
ment of almost all distributions. If para-
the 50 States. the District of Columbia, the
graph (f) (2) is intended to describe a pen-
Commonwealth of Puerto Rico, the Virgin
alty provision, the reference to susbection
Islands, Guam, American Samoa, the North-
(d) is too broad. If disqualification because
ern Mariana Islands. and the Trust Territory
of prohibited transactions is the object of
of the Pacific Islands. (Proposed Code sec-
the penalty, paragrarph (e) (2) might be ref-
tion (8)).
erenced. If distribution of unused funds
Elementary school would mean a privately
under paragraph (d) (1) is intended to be
operated. not-for-proft, day or residential
penalized. that paragraph should be men-
school which provides elementary education.
tioned.
Secondary school would mean a privately op-
63
Proposed Code section 221(e) outlines the
Bill section 201(g) provides for amending
tax treatment of the education savings ac-
the appropriate tables of contents of sec-
counts. Basically they would be exempt
tions of the Code to take into account the
from taxation, but they would be subject to
changes that would be made by the bill.
the unrelated business income taxes im-
Bill section 201(h) would redesignate
posed by Code section 511. The tax exemp-
Code "sections 128 and 129" (this appears to
tion could be lost, however. if a contributor
be a typographical error which should read
to the account engages in a transaction
"redesignate section 128 as 129") and insert
prohibited by Code section 4975. The ac-
a new section 128. New section 128 would
count would retroactively lose its exemp-
provide that gross income does not include
tion as of the first of the year in which the
distributions from an individual higher ed-
prohibited transaction occurred. This would
ucation account used exclusively for the pay-
mean that the assets of the account would
ment of educational expenses of that in-
be treated as if they had been distributed
dividual. Appropriate changes would be made
to the contributors as of the first day of
in the table of sections.
Bill section 201(1) provides that payments
the year.
Prohibited transactions would include
made to an education savings account do
not count for purposes of determining how
such transactions between the account and
much support is provided a dependent under
contributors as selling or leasing any prop-
Code section 152.
erty to each other; lending money to each
Bill section 201(1) provides for a Decem-
other: furnishing goods, services or facili-
ber 31, 1981 effective date.
ties to each other; dealing with the account.
Nothing in the present Internal Revenue
assets as if they belonged to the contribu-
Code allows taxpayers to set aside money
tor; or receiving kickbacks because of trans-
tax-free for the education of their children.
actions involving the account.
The format of the education savings account
If the beneficiary of the account were to
appears to be modeled on the present Code
pledge the account as security for a loan. the
provisions for individual retirement accounts.
portion of the account which is pledged
Section 202.
would be treated as if it had been distrib-
Bill section 202 (a). entitled "tax exempt
uted to the beneficiary. (Proposed Code
schools." would create a new Code subsec-
section 221(e)).
tion 501(j). (Present subsection 501(j) would
There is no penalty for distributions made
become 501(k)). Proposed subsection (j)
to the taxpayer after the taxpayer becomes
outlines a sort of "safe harbor" for organiza-
disabled. even if the distribution is not used
tions qualifying as tax-exempt educational
to pay educational expenses. (Proposed Code
organizations. Under proposed subsection
section 221(f) (3)).
(j) an organization described in Code sec-
Community property laws would not ap-
tion (2) would be treated as organized
ply to this section.
and operated exclusively for educational pur-
Proposed Code subsection 221(1) requires
poses if it met six requirements:
the trustee of an education savings account
(1) It must be organized and operated ex-
to file reports with the Treasury and with
clusively for the purpose of providing pre-
the beneficiary of the account. The actual
school, grammar school, high school or col-
requirements would be established by regu-
lege education:
lations.
(2) It must be incorporated as a non-
Bill section (b) would amend para-
profit corporation in the District of Colum-
graph 10 of Code section 62 (which defines
bia. any State, territory, or possession of the
adjusted gross income) to provide that the
United States:
deduction allowed by proposed Code section
(3) Its bylaws must prohibit discrimina-
221 would be used in arriving at adjusted
tion in the hiring of teachers or admission
gross income. In other words, taxpayers
of students on the grounds of race, nation-
would be entitled to deduct contributions
ality or ethnic background;
to education savings accounts whether or
(4) It must require attendance for at
not they itemized deductions on their re-
least the same number of days as are re-
turns.
quired in public schools of the State in
Bill section 201 (c) would amend Code sec-
which it is located:
tion 4973 to impose a tax of six percent on
(5) A majority of its board of directors
any excess contributions to an education
must be parents of students attending the
savings account. The tax would not be im-
school operated by the organization: and
posed. however. if the excess contributions
16) The school cannot be operating under
were timely corrected as provided in proposed.
a judicial order entered under section 202(b)
Code section 221 (d) (2).
of the Family Protection Act.
Bill section 201 (d) would amend Code sec-
Section 202(b) provides a method whereby
tion 2503 to provide that payment to an
the Attorney General could obtain a judicial
education savings account would not be
order barring a tax exemption for a school
considered a gift of a future interest in prop-
which had violated any provision of sections
erty to the extent that the payment is
1977. 1978, or 1979 of the Revised Statutes
allowed as a deduction under section 221.
(i.e. 42 U.S.C. " 1981. 1982. or 1983) or of
Bill section 201(e) would amend Code
the Civil Rights Act of 1964. If the Attorney
section 4975 by adding a new paragraph (e)
General has reasonable grounds to believe
(4) exempting the beneficiary of an educa-
that a school has violated any of those pro-
tion savings account from the tax on pro-
visions. the Attorney General is required to
hibited transactions imposed by Code secr
file a civil suit for a declaratory judgment
tion 4975 if the account ceases to be an
in the Federal district court for the district
education savings account by reason of a
where the school is located. If the Attorney
prohibited transaction.
General can establish by a preponderance of
Bill section 201(f) would amend Code sec-
the evidence that the school has engaged in
tion 6693 to provide penalties for failure to
deliberate and intentional discrimination for
file the reports required by proposed Code
at least four consecutive years prior to the
section 221(1). There would be a $10 penalty
filing of the suit. the court would be required
for each failure unless the failure were due
to issue a judicial order barring a tax ex-
to reasonable cause.
emption for the school.
7
ing in his or her official capacity in any court
If the court found that the Attorney Gen-
having jurisdiction over the action. to the
eral brought the suit out of malice. bias
same extent that any other party would be
against the religious or ethnic composition
liable under common law or under the terms
of the school's supporters, or any other im-
of any statute which provides for an award.
proper motive. the court could assess dam-
28 U.S.C. 2412.
ages against the Attorney General and ,
Section 203.
against the Internal Revenue Service agents
Section 203 is entitled "multigenerational
and officers responsible for bringing the
households." Section 203(a) would create a
action.
new Code section 44F. Proposed section 44F
The judicial order barring tax exemption
would permit a taxpayer who maintains a
would not take effect until the beginning
household which includes a dependent who
of the first taxable year after the school had
is at least 65 years old at the end of the tax-
exhausted its rights of judicial review. The
able year to take a $250 credit against in-
court would be required to retain jurisdic-
come tax. The credit would be non-refund-
tion over the case and revoke its order when
able and would be applied after certain other
the school demonstrated. by a preponderance
credits such as the credit for the elderly. the
of the evidence. that its discriminatory pol-
general tax credit. the investment tax credit.
icies had been discontinued and would not
the child care credit. and residential energy
be renewed.
credit.
Proposed section 501(1) is narrower than
Certain special rules would be applied. An
existing interpretations of what educational
individual would be treated as maintaining
institutions are covered by Code section 501
a household only if the individual (or the
(c) (3), because that section is not limited
married couple) furnished over half the cost
to preschools. grammar schools. high schools.
of maintaining the household. Married cou-
or colleges. According to Treasury Regulation
ples would have to file a joint return to take
1.501 (3)-1(d) (3) "educational" relates
advantage of the credit. Legally separated
to instruction or training of the individual
couples and divorced couples would not be
for the purpose of improving or developing
considered married. In addition certain mar-
his capabilities or instruction of the public
ried individuals who file separate returns
on subjects useful to the individual and
would be permitted to claim the credit if
beneficial to the community.
they maintained a home for a qualifying in-
Present law does not require that an ex-
dividual for more than one-half of the year,
empt organization be incorporated. Present
furnished over half the cost of maintaining
statutory law does not explicitly require that
the household during the year. and if their
an educational institution's bylaws prohibit
spouses did not live in the household during
discrimination in the hiring of teachers or
the last six months of the taxable year.
the admission of students. However, the
Bill section 203(b) would create a new
courts and the Internal Revenue Service
Code section 222 (after moving section 222
have interpreted section 501 (c) (3) to require
to section 223). Proposed section 222 would
that educational organizations have a non-
be an alternative provision to the proposed
discriminatory policy as to students. They
section 44F credit. Proposed section 222
require the organization's governing instru-
would permit a taxpayer to take a deduction
ments and its brochures to contain a state-
of $1,000 per year for each year during which
ment that the school has a racially nondis-
the taxpayer maintained a household for a
criminatory policy as to students. In addi-
dependent at least 65 years of age at the
tion the school must publicize this policy.
close of the taxable year. The same special
Rev. Rul. 71-447. 1971-2 C.B. 230 and Rev.
rules regarding marital status and claiming
Proc. 75-50, 1975-2 C.B. 587. The require-
the reduction discussed in connection with
ments as to number of days of required at-
the credit would apply. The remainder of
tendance and composition of the board of di-
the proposed section would conform the
rectors would be new.
Code to the changes made by this section of
Under existing law the Internal Revenue
the bill. It provides for an effective date of
Service may revoke the tax exempt status of
taxable years beginning after December 31,
an organization without resorting to litiga-
1980.
tion. If the Service does so. the organiza-
Both the credit and the deduction for
tion has the right under Code section 7428
maintaining an elderly dependent in a
to bring an action for a declaratory judgment
household would be new provisions. In cer-
for a determination as to its continuing
tain aspects they resemble the section 44A
qualification.
household and dependent care credit and/or
Under existing law, unless a school has re-
dependency exemption.
oelved some Federal financial assistance, it
Section 204.
is unlikely that the United States would be
Bill section 204 is captioned "parental
able to bring an action to affect the school's
support accounts." Bill section 204(a) would
policies of racial discrimination. A private
create a new Code section 223 which would
party may bring an action under 42 U.S.C.
allow a deduction of up to $3,000 per year for
I 1981 (alleging violation-of equal rights to
contributions to a trust established to care
make and enforce contracts), I 1982 (alleg-
for a qualified beneficiary.
ing violation of equal rights in dealing with
Bill section 204(b) would create a new
property), or 1 1983 (alleging deprivation of
Code section 645 which would describe &
rights secured by the Constitution and laws
qualified parental or handicapped relative
of the United States under color of State
care trust, Under proposed Code section C45
law), but the United States may not bring
(&) the trust would be exempt from income
such actions. If the school has received some
tax, with certain exceptions. Amounts dis-
Federal financial assistance, the United
tributed by a qualified trust for the purpose
States could bring an action under Title VI
of providing care for a beneficiary would
of the Civil Rights Act of 1964. It is unlikely
not be taxable to the distributee unless the
that many private elementary or secondary
distributions were received by a spouse or
schools receive Federal financial assistance.
relative of the grantor of the trust.
Under existing law a court may award rea-
The trust would be taxable on amounts
sonable fees and expenses of attorneys to the
distributed to the extent that the distribu-
prevailing party in any civil action brought
tions were not included in the income of a
by or against the United States or any agen-
beneficiary during the year. There would be
cy and any official of the United States act-
83
exceptions to this rule in the case of manda-
had earned income includible in gross income
tory distributions. Proposed Code section
or if a deduction would be disallowed if the
645(b) describes two kinds of mandatory
spouse were the individual making the con-
distributions. First, if the trust is for the
tributions.
benefit of the grantor's parents. the amount
Section 219 would be applied without. re-
in the trust must be distributed to the bene-
gard to any community property laws.
ficiary not earlier than the close of the tax-
Whether or not a couple is considered mar-
able year in which the beneficiary attains
ried would be determined on the last day of
age 64. There is no deadline for mandatory
the taxable year. The effective date would be
distribution. Second, if the beneficiary of a
taxable years beginning after December 31,
qualified parental or handicapped relative
1980.
care trust dies, the amount in the trust must
Under existing law, Code section 219 per-
be distributed to specified relatives.
mits a deduction for contributions to an in-
Proposed Code section 645(c) contains
dividual retirement plan; however. if both
definitions. Qualified parental or handi-
husband and wife contribute to such plans,
capped relative care trust would be defined
each must have compensation included in
as any trust which is created and governed
gross income and each must meet the re-
by written instrument which meets the fol-
quirement for setting up a plan. If only one
lowing requirements. It must be impossible
spouse has compensation, only that spouse
for any part of the trust to be used for any
may make a deductible contribution to his
purpose other than providing care for any
or her own plan under section 210. Couples
qualified beneficiary, paying administrative
are not required to file a joint return in
expenses of the trust. or making a manda-
order for the person making the contribu-
tory distribution. In addition, the grantor of
tion to claim the deduction. There is no
the trust can have no reversionary interest
special additional contribution for a handi-
in any portion of the trust which might take
capped spouse.
effect before the death of all qualified bene-
The proposed amendment of Code section
ficiaries of the trust or before all beneficiar-
219(c) (2) would eliminate the current lan-
ies of the trust cease to be qualified benefi-
guage which ciarifies the fact that if both
ciaries of the trust. The trustee of the trust
husband and wife have their own compensa-
must be a bank or similar institution or a
tion incomes and each meets the require-
person satisfactory to the Secretary of the
ments for setting up an individual retire-
Treasury. No beneficiary of the trust can be
ment account, each may make his or
a beneficiary of any other qualified parental
her own contributions to his or her own
or handicapped relative care trust.
The term qualified beneficiary means a
plan. The language may have been unneces-
parent of the grantor or a relative of the
sary, but its elimination does raise a ques-
tion as to the intended result.
grantor who is unable to engage in any sub-
stantial gainful activity because of a medi-
Under current Code section 220. an individ-
cally determinable mental or physical im-
ual with a non-earning spouse may make a
pairment which can be expected to be of
contribution for both of them. Under this
long-continued and indefinite duration. (The
provision. however. the maximum contribu-
term relative is described by the list of de-
tion 15 $1,750, which is only $250 more than
pendents in Code section 152(a) (1) through
the individual could have contributed on his
(8), i.e. children of the grantor or their de-
or her own behalf under current section 219.
cendents, stepchildren. siblings. or step-
(Sections 219 and 220 are alternative provi-
siblings, parents or their ancestors, nieces.
sions.) Section 220 does not require filing a
nephews, aunts. uncles, and parents-in-law,
joint return. In order for the non-earning
children-in-law, and brothers- and sisters-
spouse to benefit from section 220 the work-
in-law.)
ing spouse must be eligible to set up an in-
dividual retirement plan. If the working
There are provisions to conform the Code
spouse is ineligible (perhaps as a result of
to the changes proposed by section 223, and
participating in a plan at work), then the
the proposed effective date is taxable years
non-earning spouse receives no benefit from
beginning after December 31, 1980.
the existence of section 220. The proposed
Proposed sections 223 and 645 are new.
section 219 may change this result.
Section 205.
Section 206.
Bill section 205 would amend Code section
Section 206(a) is entitled "corporate day
219 to allow an individual to make contribu-
care-charitable contributions." It would
tions to an individual retirement plan on
behalf of the individual's spouse. In order to
amend Code section 162(b) to provide that
take. advantage of this provision the spouse
taxpayers may take an ordinary and neces-
could not have any earned income of his or
sary business expense deduction for amounts
her own; however, for purposes of computing
paid to a day care center which meets the
the amount of the spouse's contribution to
requirements of proposed Code section 501
the individual retirement account, the spouse.
(c) (23).
would be deemed to have compensation equal
Section 206(b) creates a new type of tax-
to the compensation included in the working
exempt organization. The organization would
spouse's gross income for the taxable year.
be organized and operated in the United
The maximum deduction (the lesser of
States for the purpose of providing day care
15% of compensation or $1,500) would be
for children. No part of the net earnings
computed separately for each spouse. If the
could inure to the benefit of any private
spouse were handicapped, the maximum de-
individual. The day care center could not
duction would be $3,000. Handicapped would
lobby, participate in political campaigns or
be defined in section 190(b) (3), i.e. a person
spread propaganda. It must have or have
who has a physical or mental disability (in-
not been rejected for any necessary certifi-
cluding, but not limited to blindness or deaf-
cates or licenses required by States law.
ness) which results in a functional limits-
The Internal Revenue Service and other
tion to employment or who has a physical or
government agencies are prohibited from
mental impairment which substantially
limits one or more major life activities of
promulgating any other criteria for eligibility
such individual. The couple would be re-
tion. for the proposed section 501 (23) exemp-
quired to file a joint return. No contribution
da-
or deduction would be permited if the spouse
9B
Current law permits u
eral court, womu cue court in which
duct payments to a day care center to provide
such suit is brought to provide an expedited
care for preschool children of its employees
hearing on the matter, and would authorize
as an ordinary and necessary business ex-
the award of attorneys fees and costs to such
pense deductible under section 152 of the
persons if they prevail.
Code. (See Rev. Rul. 73-348, 1973-2 C.B. 31).
Section 301 would alter, and add to, exist-
Under present law day care centers which are
ing law in a number of respects. The "Fam-
primarily educational or primarily charitable
ily Educational Rights and Privacy Act of
may qualify as tax-exempt organizations. See
1974" (20 USC 1232g (a) (1) (A)) requires
Rev. Rul. 68-166. 1968-1 C.B. 255; Rev. Rui.
educational agencies receiving federal funds
70-533. 1970-2 C.B. 112. Under present law,
to give parents "the right to inspect and re-
however, these organizations must apply for
view the education records of their children."
exemption in order to have their exempt
but that requirement is enforceable only ad-
status recognized by the Internal Revenue
ministratively, not by private suit. as would
Service.
be provided by this section. Section 14(b)
Section 207.
of the "Labor Management Relations Act,
Section 207 would amend Code section 151
1947" permits states to allow collective bar-
to allow an additional $1,000 personal exemp-
gaining agreements which require member-
tion for a taxpayer in the year that a child is
ship in a labor union as a condition of em-
born to or adopted by the taxpayer. An addi-
ployment, a grant of discretion which twelve
tional personal exemption of $3,000 would be
states now exercise. The section would bar
allowed in the case of a child born to the
such union security provisions with respect
taxpayer. which child is handicapped. In the
to teachers. 20 USC 1232a bars the federal
case of the adoption of a child whose parents
government from exercising "any direction,
were not members of the same race OF a child
supervision. or control over the curriculum,
who is over age six. or a handicapped child an
program of instruction.
or over the se-
extra $3,000 exemption would be allowed
lection of library resources, textbooks, or
under the section. The additional exemption
other printed or published instructional ma-
would be allowed only to married individuals
terials by any educational institution or
filing joint returns. If the exemption reduces
school system.
and thus might be modi-
a taxpayer's tax liability to zero, the extra
fied by this section. The remaining provi-
amount could be carried over to the follow-
sions of this section would appear to be new
ing year.
to federal law.
In addition section 207 would add a new
Section 302 (a). This section would provide
Code section 221 which would allow the de-
that "federal funds shall not be withheld
duction of adoption expenses greater than
under any provision of federal law nor shall
$500 but not more than $3,500 or $4,500 in
any provision of federal law be construed to
the case of an international adoption. Adop-
prohibit" (1) the right of any state or local
tion expenses would include reasonable and
educational agency to determine the re-
necessary adqption fees. court costs, attorney
quisite qualifications of teachers within
fees. and other expenses directly related to
their jurisdictions (including the right not
the legal adoption of a child. Illegal expenses
to require a certificate). (2) the right of any
could not be deducted. International adop-
state to set or not to set attendance require-
tions include adoptions in foreign countries,
ments at public or private schools within
or involving a child who is a citizen of a for-
their jurisdiction, and (3) the right of any
eign country who was brought to the United
local educational agency. in consultation
States to be adopted or whose placement for
with parents, to limit or prohibit the "inter-
adoption was reasonably foreseeable. Reim-
mingling of the sexes in any sports or other
bursed expenses or otherwise deductible ex-
school-related" activity.
penses could not be deducted under this
The language of this section providing
section.
that "federal funds shall not be withheld
These provisions are new. There are no spe-
under any provision of federal law" to affect
cial exemptions for childbirth or adoption in
(generally) every provision of federal law
the year they occur.
authorizing the withholding of federal funds
TITLE III-EDUCATION
under specified circumstances, such as Title
Section 301. This section would amend
VI of the Civil Rights Act of 1964 (42 U.S.C.
Part C of the General Education Provisions
1000d), Title IX of the Education Amend-
Act (20 USC 1230 et seq.) to make it unlaw-
ments of 1972 (20 U.S.C. 1681), and Section
ful for any educational agency which re-
504 of the Rehubilitation Act of 1973 (29
ceives federal funds to: (1) bar "parents or
U.S.C. 794).
representatives of the community from par-
But the specific and narrow intent of this
ticipating in decisions relating to the estab-
section is to link the limitation on with-
lishment or continuation of courses relat-
holding to the exercise of the three rights
ing to the study of religion." (2) bar or un-
enumerated. In that sense the effect of the
necessarily limit the right of parents to
section on existing law would be consider-
visit the public schools or to inspect their
ably narrower.
children's education records, (3) require
Federal law at present does not authorize
teachers to pay dues or fees as a condition
the withholding of funds or otherwise pro-
of employment, or (4) bar parents from re-
hibit the exercise of discretion by the States
in setting attendance requirements and de-
viewing textbooks prior to their use in the
termining the qualifications of teachers:
classroom.
such matters are now wholly prerogatives
This section would further prohibit the
controlled by State law.
use of federal funds to "secure or promote"
Title IX of the Education Amendments of
educational materials which "do not reflect
1972 (20 U.S.C. 1681 et seq.), however, does
a balance between the status role of nien
bar discrimination in federally assisted edu-
and women, do not reflect different ways in
cation programs on the basis of sex, and
which women and men live and do not con-
regulations issued pursuant to Title IX bar
tribute to the American way of life as it
schools receiving regeral assistance from of-
has been historically understood."
fering athletic programs that are segregated
Finally, this section would authorize per-
on the basis of sex. (45 CFR Part 86.41 (a)
sonal aggrieved by a violation of any of the
above to seek judicial redress in state or fed-
10B
The only exception to this requirement
This section was prepared prior to the time
provided by the regulations is for athletic
the Administration's block grant proposal
teams "where selection for such teams is
was introduced. However. the section in many
based upon competitive skill or the activity
respects is similar to the Administration's
involved is a contact sport." Id., at 86.41 (b)
block grant proposals.
Thus, the first two "rights" sunmarized
It is my recommendation to the appropri-
above would not appear to change existing
ate committee that this section be amended
law, but the third would appear to alter this
to reflect the Administration's elementary
aspect of Title IX.
It must be emphasized that the overall in-
and secondary education block grant pro-
posals.
tent of this section is to codify protection
Section 304.
from unnecessary federal intrusion in the
rights enumerated.
Summary
Section This section would amend
This section provides that no provision of
the National Labor Relations Act (29 U.S.C.
federal law "shall be construed to prohibit
151 et seq.) to add a new exemption for non-
released time for parenthood education to be
profit private schools. The section would
conducted by churches."
amend Section 2(2) of the NLRA (29 U.S.C.
The Supreme Court has interpreted the
151(2)) to exclude from the definition of
establishment of religion clause of the First
employer "any corporation or association
Amendment to prohibit "shared time" pro-
operating a school. if no part of the net
grams between schools to teach religion to
earnings inures to the benefit of any private
consenting students. Illinois ex rel. McCollum
shareholder or individual."
V. Board of Education, 333 U.S. 203 (1948).
With one exception, each of these pro-
The Court has further held, however, that it
posed amendments to the NLRA concerns
is constitutionally permissible under the
amendments to the Act that were adopted
First Amendment for the public schools to
by Congress in 1974.
"release" consenting school children during
The provision outlined above would add
the school day so that they can repair the
a new exemption to the NLRA for "any cor-
nearby churches for purposes of religious in-
poration or association operating a
struction. Zorach V. Clauson, 343 U.S. 306
school, if no part of the net earnings inures
(1952). Thus, released time programs in
to the benefit of any private shareholder
themselves do not violate the First Amend-
or individual." The extent to which such
ment. But If the state becomes excessively
institutions are presently covered by the
implicated in such programs by such means
NLRA is not entirely clear. Not until 1970
as giving course credit for the religious in-
did the National Labor Relations Board in-
struction, the First Amendment likely is
terpret the Act to cover private universities,2
transgressed. Lanner V. Wimmer, 463 F. Supp.
overruling in that case a contrary ruling it
867 (D. Utah 1978).
had made in 1951.³ In subsequent cases it
Thus, existing law does not prohibit re-
extended this ruling to private elementary
leased time programs of parenthood educa-
and secondary schools, both sectarian and
tion conducted by churches, and this sec-
non-sectarian.4 In NLRB V. Catholic Bishop
tion would not change that situation.
of Chicago, 440 U.S. 490 (1979). however, the
Section 305. Legal Services: Busing. This
Supreme Court held that the NLRA does
section would amend section 1007 (b) of the
not cover teachers in private sectarian
Legal Services Corporation Act -(42 U.S.C.
schools. More recently. in NLRB v. Yeshiva
2996f(b)) to prohibit funds received by LSC
University, 444 U.S. 672 (1980) the Court
grantees from being used for legal assistance
held that the NLRA similarly does not extend
or litigation relating solely to achieve racial
to full-time faculty members in private
quotas or the desegregation of any elemen-
universities who perform extensive man-
tary or secondary school or school system.
agerial functions. These decisions leave open
This restriction is broader than existing
the possibility that the NLRA still covers
law. Existing law also bans legal services rep-
efforts to organize nonteaching personnel
resentation in proceedings related to desegre-
at private schools, including those religiously
gation, but does permit "the provision of le-
affiliated. as well as efforts to organize faculty
gal advice to an eligible client with respect
at private nonreligious schools who do not
to such client's legal rights and responsibili-
perform extensive managerial functions. The
ties" in connection with such proceedings.
exclusion of private schools from the defini-
This section would eliminate that exception
tion of "employer" in the NLRA that would
from the bar. See: 42 U.S.C. 2996f (b) (9).
be made by this section would eliminate
TITLE IV-VOLUNTARY PRAYER AND RELIGIOUS
that possibility.
MEDITATION
$ Cornell University, 183 N.L.R.B. 424
Section 402. This section, entitled the "Vol-
(1970).
untary Prayer and Religious Meditation Act
of 1981", states that every individual "shall
$ Trustees of Columbia University in the
have the right to participate in the free
City of New York, 97 N.L.R.B. 424 (1951).
exercise of voluntary prayer or religious med-
Shattuck School, 189 N.L.R.B. 886 (1971);
Itation" in any building supported in whole
Roman Catholic Archdiocese of Baltimore,
or in part with federal funds. and bars any
216 N.L.R.B. 249 (1975).
governmental agency from abridging that
EDUCATION BLOCK GRANTS
"right of free exercise of voluntary prayer
or religious meditation." The section further
Section 303. Specifically. this section would
provides a cause of action for individuals
amend the Elementary and Secondary Edu-
aggrieved by violations of this right. and
cation Act of 1965 (20 U.S.C. 2701 et seq.) by
requires the courts to give expedited review
repealing Titles I, II. III, IV, VII, and.IX of
to such claims. The section defines "volun-
that Act and substituting in their stead a
tary prayer or religious meditation" as "indi-
new Title XI. The states would have broad
vidual prayer and devotional reading from
discretion in allocating funds at the local
religious literature initiated by members of
level.
the group. and prayer and devotional reading
from religious literature, provided that any
person so desiring is excused from partici-
pating
11
In Engel V. Vitale, 370 U.S. 421 (1904)
Title VII of the Civil Rights Act of 1964
and Abington School District V. Schempp.
(42 U.S.C. 200e et seq.) bars discrimination
374 U.S. 203 (1963) the Supreme Court held
in employment on the basis of race. color.
unconstitutional as an establishment of reli-
national origin. sex, and religion. and does
gion. state sponsorship of prayer and dero-
exempt church-operated schools and colleges
tional Bible reading in the public schools.
with respect to discrimination on the basis
A number of state and lower federal courts
of religion. But no such exemption attaches
have extended these rulings to bar as well
to such institutions for discrimination on
student-initiated prayer and Bible study
the other prohibited basis. or for any pro-
groups in public elementary and secondary
hibited discrimination by non-academic
schools. Brandon V. Board of Education of
the Guilderland Central School District. 635
church programs. Similarly, the minimum
F. 2d 971 (2d Cir. 1980): Johnson V. Hunt-
wage and maximum hour provisions of the
Fair Labor Standards Act (29 U.S.C. 201
ington Beach Union High School District,
137 Cal. Rptr. 43, 68 Cal. App. 3d 1 (Ct. App.),
et seq.) make no exception for religious or-
cert. den. 434 U.S. 877 (1977): Trietleu V.
ganizations as such.
Particular grant-in-aid programs may im-
Board of Education of the City of Buffalo,
pose additional requirements on the operat-
65 A. 2d 1. 409 N.Y.S. 2d 912 (App. Div. 1978).
ing aprocedures of recipient organizations,
Because a basic canon of statutory con-
without exception for church-operated pro-
struction is to so construe statutes to avoid
grams. Title XX of the Social Security Act
constitutional questions. this section has
(42 U.S.C. et seq.). for instance. authorizes
been deliberately designed to statutorily re-
grants to the States for a variety of social
:erse the above rulings. The right stated
services. such as day care, prevention of child
y the section is a right of individual prayer
abuse. and foster care. For at least some of
or religious meditation although it is not
these programs, the statute and/or the im-
iesigned to exclude some element of group
plementing regulations impose detailed re-
devotional reading as well.
quirements on the ultimate recipients with
TITLE V-RIGHTS OF RELIGIOUS INSTITUTIONS
respect to staffing ratios, educational re-
AND EDUCATIONAL AFFILIATES
quirements for personnel, etc. See. e.g., 42
Section 501. This section would bar the
U.S.C. 1397a(a) (9) (A) and 45 CFR Part
federal government from imposing on a
71. 45 Fed. Reg. 17881-85 (March 19. 1980)
variety of church-related organizations any
(day care requirements).
requirements with respect to admissions
Section 301 is intended to eliminate the
policies. instructional-or training materials.
applicability of virtually all such Federal
instruction or methodological3 hiring or
regulations and conditions to the named
selecting of employees and staff, contractual
church-operated programs and organizations
relationships with employees and staff. or
with the exception of certain aspects of the
operating procedures. The only exceptions
Civil Rights Act of 1964. and thus would
would be "reasonable health and fire regula-
substantially alter existing law.
tions", when promulgated by a federal in-
TITLE VI--MISCELLANEOUS
strumentality exercising the authority of s
Section 601. Jurisdiction.
local government. and requirements imposed
Section (a) would provide jurisdiction
pursuant to the Civil Rights Act of 1964.
in the United States district courts or any
The latter would be limited to require-
territorial court which has the powers of a
ments with respect to race, creed, color,
district court for suits brought under the
national origin, (1.e., not sex) and would
Act, without regard to the amount in con-
include requirements "relating to affirmative
troversy. Section 601(a) would also provide
action. quotas, guidelines. or actions de-
for venue in any district in which the de-
signed to overcome racial imbalance." The
fendant is an inhabitant, transacts business,
church-related organizations covered by th
or is found, and provides for similar service
section would be child care centers. orphan
of process.
ages. foster homes, social action training pro
Section (b) would bar any action
grams. emergency shelters for abused chil-
brought in State court under the Act from
dren or spouses. schools, juvenile delin-
being removed to Federal court except when
quency or drug abuse treatment centers or
a Federal official or the United States is a
homes. and "similar" programs or institu-
party. The section would further provide
tions.
that no costs may be assessed against the
government regulation of the above
United States.
named types of organizations would be State
Jurisdiction: Under existing law the Fed-
and local in nature rather than federal. But
eral courts would have jurisdiction of suits
the federal government does regulate con-
brought under the Act pursuant to the gen-
ditions of employment and does. impose a
eral Federal question jurisdiction statute (29
variety of conditions on organizations receiv-
U.S.C. 1131). However, except when a Federal
ing or desiring to receive federal financial
official or the United States is a party or
assistance.
another statute specifically waives the ro-
For instance. Title VI of the Civil Rights
quirement. general Federal question juris-
diction requires a minimum amount in con-
Act of 1964 (42 U.S.C. 2000d et seq.) bars dis-
troversy of $10,000. Section 601 would re-
crimination on the basis of race. color. and
move that amount in controversy require-
national origin in programs and activities re-
ment for suits between private parties
ceiving federal assistance: Title IX of the
brought under this Act.
Education Amendments of 1972 (20 U.S.C.
Venue and Service: The venue and service
1681 et seq.) bars discrimination on the
provisons appear to expand present law for
basis of sex in federally assisted education
suits brought under the Act. 28 U.S.C. 1391
programs: Section 504 of the Rehabilitation
(b) provides that venue lies in the district
Act 1973 (29 U.S.C. 794) bars discrimination
where all defendants reside, or where the
in federally assisted programs on the basis
of handicap. None except church-operated
This phrase may be intended to state
programs receiving federal assistance from
"Instruction or methodology."
these obligations.
12
Claim aruse. EEF we INSURANCE 01 an individual,
on the collection matters to exclude the
section 601(a) of the Act would create lia-
validity and appropriateness of the final
bility to suit in any district where the indi-
determination.
vidual transacts business or is found. even
Subsection 603(d) provides that a person
if only. transiently. In the instance of a cor-
aggrieved by & final determination under
poration. section 601 of the bill does not
subsection (b) may seek review in a United
appear to alter venue (although the change
States Court of Appeals within twenty days
in linguistic style may- subject the proposed
after the determination. Review is to be in
subsection to a different interpretation than
accordance with the Administrative Proce-
current law).
dure Act (5 U.S.C. 706)
In the instance of a government official of
The imposition of a civil fine is common
the United States as a defendant, 28 U.S.C.
to federal-regulatory schemes, usually sub-
1391 (e) provides for ventue (1) where the de-
sequent to some form of proceedings as out-
fendant resides. (2) where the cause arose,
lined above.
(3) where real property that is the subject of
Thus, the provision. while new to federal
the action is situated, or (4) where the plain-
law as part of this bill. would not be unusual.
tiff resides if no real property is involved. Sec-
The authority of the Attorney General to
collect the fine is a restatement of the At-
tion 601(a) of the bill would appear to limit
venue to the residence of the officer being
torney General's authority under 28 U.S.C.
sued and eliminate venue where the cause
509. 514, 517. and 547.
The authority to delegate the collection
arose, where any real property may exist, or
function is a restatement of the Attorney
where the plaintiff resides.
General's authority under 28 U.S.C. 510. The
Section 601 (a) of the bill provides for
provision requiring filing of an appeal from
service of process.in any district in which the
a determination within twenty days and the
defendant may be found. Initial process is
restriction on review of collection matters
essential to personal jurisdiction over the
are not uncommon.
defendant. and. accordingly. in the sense of
It is my opinion that Congress has the au-
service of the complaint, this subsection pro-
thority to enact these provisions.
vides for nationwide service of process. This
Section 604. Contrary Stipulations Void.
is not uncommon in terms of asserting juris-
This section would provide that any agree-
diction.
ment contrary to the provisions of the bill
Removal: Existing law permits the removal
is void.
from State court of all civil actions over
This provision is new, and therefore,
which the federal district courts have orig-
would not directly affect existing law.
inal jurisdiction: See 28 U.S.C. 1441. Existing
As long as this provision is applied pros-
law further permits the removal from State
pectively. there would not appear to be any
court to federal district court of all civil and
constitutional Infirmity. However. should
the provision be applied retroactively (to
criminal actions in which a federal official
agreements made prior to the enactment of
or the United States is the respondent. See
the bill). the Impairment of Contracts
28 U.S.C. 1442. Thus, for suits brought under
clause of Article 1, section 10, clause 1 of
this Act. the removal authority granted by
the Constitution or the due process clauses
Section 601(b) would be generally consistent
of the Fifth and Fourteenth Amendments
with the latter statute but substantially nar-
(under a taking without just compensation
rower than the former one.
theory), may be implicated. It is not possible
Costs: Rule 54(d) of the Federal Rules of
to analyze in detail whether the provision,
Civil Procedure states the general rule that
costs may not be taxed against the United
as applied, would violate these constitu-
States unless specifically provided for by law.
tional strictures, but the provision does not,
Section of the bill restates that gen-
on its face. appear to be unconstitutional.
eral rule.
Section 605. Report to Congress. The sec-
Congress has the constitutional authority
tion requires the Secretary (what Secretary
to set affirmatively the jurisdiction of the dis-
is not specified) to file a report with Con-
trict courts and to provide for procedure in
gress within thirty months on the imple-
the courts. Wayman v. Southard, 23 U.S. (10
mentation of the bill.
Wheat.) 1 (1825).
Section 606. Effect on Other Laws. This
Section 602. Limitation on Actions. This
section provides a rule of construction that
section would provide that a civil action
the bill does not limit, but is in addition to.
must be brought within six years after the
any other private right provided in federal
or state law.
cause of action arises.
This section further provides a common
This section is new, and it is my view that
limitation in the law. The determination of
Congress has authority to require such an
a six year limitation is not unusual.
interpretation.
Congress possesses the authority to limit
Section 607. Authorization of Appropria-
liability to a given period of time. Wayman
tions. This section authorizes appropriations
v. Southard, supra.
to carry out the provisions of the bill and
Section 603. Enforcement.
does not specify a limitation on the amount.
Section 603(a) provides that any person
The open. limitation on the amount is not
who violates any provision of the bill or
intended to imply- "open-ended" or other-
regulations thereunder may be subject to a
wise unlimited funding to carry out the pro-
civil fine not to exceed $5,000. The subsec-
visions of the bill.
tion provides that an offense is newly com-
Section 608. Separability. This section pro-
mitted each day of the violation. The sub-
vides for the separability of the provisions
section also provides that the fine-may only
of the bill, if any provision is found invalid.
be imposed after a hearing.
Such separability provisions are common.
Subsection 603 (b) provides that hearings
and it is my view that Congress has the au-
shall be conducted pursuant to the adjudi-
thority to enact this provision.
cation provisions of the Administrative Pro-
cedure Act (5 U.S.C. 554).
Subsection 603(c) provides that the Attor-
ney General or a delegee may collect the civil
fines, payable to the United States. in the
district courts. The subsection limits review