Flast v. Cohen (1968) - Part Four: Oh No I've Said Too Much...
I’ve been posting some of my rough drafts for a book I hope will be out this summer, tentatively titled “Have To” History: It Followed Her To School One Day… and with a subtitle longer than several of the actual chapters in my effort to clarify what it’s about right there on the cover while still being saucy. What started off as a one-pager for the case of Flast v. Cohen (1968) became a rambling summary of “standing” issues in church-state cases related to public education, which I’ve been sharing here as it develops.
Flast was and is still important, as is the handling of “standing” over the past century in these “wall of education” cases. I will, however, definitely be breaking down this information differently than what you’re seeing here. This is driven by (a) my belief in clarity and easy reference, and (b) a burning desire to sell more than four copies.
In the meantime, here’s the rest of my initial mess and then it’s time to move on. You know what they say: nothing Flast forever.
Yeah, that’s not going in the book either…
“School Choice” and Taxpayer Standing
The numerous “school choice” cases best typified by Zelman v. Simmons-Harris (2002) offer a more clearly defined foundation for taxpayer standing, particularly when “vouchers” are involved. As literal transfers of state funds voted on by state legislatures, any taxpayer in the state theoretically has grounds to object when this spending involves a potential violation of the Establishment Clause. While Flast is rarely if ever cited in these cases, neither is it violated. Even taxpayers without young children and who may never set foot inside their local schools should have standing to object – it’s just that based on the past few decades of jurisprudence in this area, they’ll most likely lose on merit.
Then there was Arizona Christian STO v. Winn (2011), in which the Court rejected the right of taxpayers to object to a state program providing tax breaks for individuals or organizations contributing to “scholarship funds” – a roundabout method of financing “school choice.” With this, the court came full circle as it landed back at the same basic arguments that drove its decision in Massachusetts v. Mellon nearly a century before. It simply required too many assumptions and thin connections to tie one individual’s tax contributions to a specific bit of governmental spending, even if the right being violated was yet another expression of establishment.
So maybe it’s not so clear who has standing these days after all.
In recent years, the issue has been of little relevance in “school choice” arguments. Instead, constitutionality has been declared based on the “circuit breakers” between government spending and parental choice of where funds end up, or the roundabout machinery used to turn tax breaks into contributions into “scholarships” to be used at religious institutions. The momentum is such that the Court has taken things a step further, ruling in Espinoza v. Montana (2020) and ruled that anytime a state offers funding for education, facilities, or other services, religious organizations must be allowed to partake of the blessings on the same terms as everyone else, whatever their underlying mission or ideology. The debate is no longer “does this violate the Establishment Clause?” but “does this in any way hinder Free Exercise?”
Should public education advocates choose to try a new approach to fighting “school choice” schemes in the courts, it’s entirely possible the question of standing will once again come into focus. Until then, it’s a bit of an unknown.
Afterward: “AND” Not “OR”
Efforts to fight government shenanigans in the courts based on taxpayer standing in cases having nothing to do with the Establishment Clause have consistently failed based on the same reasoning the Court offered nearly a century ago in Commonwealth of Massachusetts v. Mellon (1923) – it’s simply too tenuous to claim immediate, personal harm based on big, general government actions, let alone connect your specific tax returns to their implementation. A few cases by way of example:
Sierra Club v. Morton (1972) – Disney wanted to build a ski resort in Sequoia National Forest, meaning they’d need a rather large new highway, power lines, and other infrastructure. The local Sierra Club sued to stop the project, but the Court rejected their standing. Whatever harm Disney might do to the environment, the scenic view, or all the little animals, it was a general harm unless individual taxpayers could demonstrate a hard dollars and cents impact on them specifically, which they could not.
United States v. Richardson (1974) – In the wake of the Pentagon Papers, Watergate, and an overall lack of faith in Washington, D.C., an American taxpayer sued the government for access to records showing expenditures of the Central Intelligence Agency. Given that it was his money being spent, he reasoned, he had a right to know what it was being used for. No, no he didn’t, replied the Court.
Lujan v. Defenders of Wildlife (1992) – Taxpayers accused the federal government of violating its own environmental protection regulations and thus endangering their lives and well-being, as well as that of their children and mankind in general, etc. Justice Scalia wrote the majority opinion, which tells you how well that argument went over.
DaimlerChrysler Corp. v. Cuno (2006) – The State of Ohio offered manufacturing behemoth DaimlerChrysler substantial tax breaks if it agreed to expand its operations in Ohio, which it did. A group of taxpayers challenged the arrangement as violating the Commerce Clause of the U.S. Constitution. By wooing DaimlerChrysler to Ohio at the expense of taxpayers as well as the economies of other states, the legislature was overstepping its constitutional bounds and stepping on the provinces of Congress. The Court rejected their standing. Once again, the cause-and-effect relationships they postulated were simply not direct enough to demonstrate undeniable harm to them as individuals via legislative taxing and spending.
Hein v. Freedom From Religion Foundation, Inc. (2007) – President Bush used one of those magical “executive orders” which were already becoming popular at the time to create an Office of Faith-Based and Community Initiatives. The goal was to allow religious charities and churches to compete with non-religious groups any time federal funding was being distributed. The President instructed various executive departments to hold conferences promoting this Faith-Based Initiative. The Freedom From Religion Foundation sued, alleging that the conferences favored religious organizations over non-religious ones and thereby violated the Establishment Clause.
That’s right – the Establishment Clause. The one that sometimes triggered standing under Flast.
The Court ruled, however, that the foundation lacked standing because the actions in question were not results of congressional taxing, spending, or legislating – they were the Executive Branch using its power and resources. Maybe it was constitutional, maybe it wasn’t… but Joe Taxpayer couldn’t establish clear cause-and-effect harm based on the limited definition used by the Court, so take it up with the ballot box in four years.
Clapper v. Amnesty International USA (2013) – Even being spied on by your own government doesn’t count as specific, demonstrable harm, taxpayer or not. The trick with proving you’ve been harmed by government spying, of course, is that they don’t come out and tell you about it because, well… it’s spying. What’s it’s not is establishment, so the case was a non-starter in the eyes of the Supremes.