Bob Jones University v. United States

NICHOLS, Judge,

concurring and dissenting:

I concur in the result in part and dissent in part. I agree with the court that the first amendment does not endow Bob Jones University with exemption from the obligations under the Internal Revenue laws that would fall upon a wholly secular employer otherwise similar. I also agree that common fairness compels the court to disregard the all-or-nothing approach of plaintiff and consider separately the separate category of "dormitory counsellor” such as Luena Barker, whose on-campus residence is shown to be indispensable for performance of her onerous duties. I believe, however, that there may be other categories of faculty members whose interests may also wrongly go down the drain if ignored by the court. Though not parties, they have a stake in this litigation that cannot be ignored. I would not dismiss the petition as to them, but would require further fact findings focused on the function and responsibilities of specific categories. I agree the petition should be dismissed as to all nonfaculty members and (as to lodging) all persons residing off-campus, even if in University-owned housing.

Plaintiff got its case off on the wrong foot by stating its contention to be that its employees were "role models.” This is a handy phrase, though somewhat absurd as to the maintenance and landscape engineer. The findings show it falls far short of the real demands of the institution upon its faculty members. The phrase invites the court’s too ready response of asking how a person could be a "role model” for a student when not under the student’s direct observation. The trial judge’s findings describing this unique institution show there is far more to the issue than that. It is a matter of faculty members surrendering personal freedom, night and day, to collaborate in developing a "we and they” polarization between the University and the rest of the world. The separation is made concrete, and also symbolized by the massive wall with its ever guarded gates. It is true the University relies on faculty volunteers to enjoy the blessings of its bed and board, but who can doubt the testimony that compulsion would be resorted to if the supply of volunteers were insufficient to keep the housing and refectory fully employed?

This is an attempted revival of the ancient role of the university in society and to create again the mutual animosity of "town and gown” that characterized the great universities of the middle ages. Most of those in our time have lost whatever capacity they ever had to stamp their people with their own peculiar brand. The old chestnut: "you can always tell a Harvard man but you can’t tell him much” is no longer true as to either part. The actual Harvard man (or woman) of today has less in common with other Harvard persons than with non-Harvards of his or her race, occupation, social situation, or even geographical distribution. The only ones who graduate with a Harvard accent are those who matriculated with one. To counter this trend is an uphill struggle in today’s world, but it is one from which the founder, Bob Jones, and his descendants, do not falter or flinch. It is one from which the faculty are not excused or on leave when, for the moment, they are out of the students’ observation, whether eating or in the privacy of their quarters. I am not at all persuaded that other faculty members besides dormitory counsellors, who reside and eat on campus, are not there for the employer’s "convenience, ” in the statutory phrase, even when they are asleep.

The IRS in its drive to recover taxes on every scintilla of benefit enjoyed by employees from employers by way of meals and lodging, has indulged in a good many excesses. I am not at all persuaded this case is not one of them.