Flast v. Cohen (1968) - Part Three: Consider This The Hint Of The Century

Recap of Part One:

Tax TimeThe Supreme Court explained in Commonwealth of Massachusetts v. Mellon (1923) that simply being a taxpayer didn’t give one the right to protest government actions – even potentially unconstitutional ones – in the courts. There were simply too many “what ifs” between the individual taxpayer sending in their $20 and any one specific expenditure.

In the 1960s, the Court began framing the Establishment Clause as something fundamentally different than the other protections in the Bill of Rights. As a result, arguments that this particular clause was being violated were sometimes handled with a different set of rules than other types of claims.

Recap of Part Two:

In Flast v. Cohen (1968), a group of taxpayers objected to the use of public funds to provide secular textbooks for sectarian schools. With any other issue, being taxpayers wouldn’t be sufficient to establish standing. When it came to Establishment Clause issues, however… maybe it kinda was?

The Supreme Court determined that there was nothing in the Constitution barring federal taxpayers from challenging taxing and spending they believed to be unconstitutional when they could demonstrate their fundamental constitutional rights were being violated in the process. In practice, this turned out to apply only when the Establishment Clause was involved. Establishment violations can also occur for non-taxpayers based on “unwanted exposure” to government-promoted religious messages.

The “Lemon Test” informally established in Lemon v. Kurtzman (1971) set up a three-part checklist for determining whether or not a government action was constitutional: it must have a valid, secular legislative purpose, it’s principal effect can neither inhibit nor advance religion, and it must not create an “excessive government entanglement” with religion. The first and second parts of the Lemon Test evolved slightly over time into questions of real or perceived government “endorsement” of religion. When a government action or message makes some citizens feel “otherized” based on their religious beliefs (or lack thereof), it’s probably bad.

Now things started to get weird... on to Part Three.

Allen v. Wright (1984) – A Notable Lack of Standing  

Allen v. Wright was decided during the same term as Lynch v. Donnelly (see Part Two). While Lynch was decided on its merits, plaintiffs in Allen were rejected for lack of standing.

The case originated with a complaint by parents of Black children in several states whose kids attended public schools. Although the question of “separate but equal” had been resolved on paper by Brown v. Board of Education way back in 1954, desegregation was still an ongoing battle in many places, and private religious schools were multiplying like fish and bread baskets to take in the waves of white children whose parents were anxious to keep them away from “those” people. These “segregation academies” often received funding via “vouchers” provided to parents by the state so they could exercise “school choice” in the name of excellence and freedom and America, etc., with a wink and a nudge and a “see you at the burning pole.”

Segregation for JesusNot surprisingly, many are still in business today with only slightly modified rhetoric and a few students of color thrown in by way of token camouflage.  

Then, as now, the IRS had rules against granting tax-exempt status to schools practicing overt racial discrimination and procedures they were supposed to follow to make such determinations, but – the parents in Allen claimed – they weren’t following them. Their children were thus suffering as a direct result. If segregated schools were bad for Black students as the Court had quite explicitly determined they were, and the IRS by ignoring its own mandates was perpetuating segregation, then students were being harmed by this ongoing sin of omission. The federal government was instead rewarding groups through its taxation policies for perpetuating white supremacy in the name of freedom of religion. (Donations by taxpayers to these segregated schools were tax deductible as well.) The IRS tried to tighten up its rules to improve enforcement, but this was the 1980s and there was no way a Republican Congress would allow that sort of accountability among its base.

Relying on Flast along with a slew of other precedents, the Court rejected the case not on its merits but on lack of standing by the plaintiffs along with the suggestion that this wasn’t really something the Court itself should be tackling anyway. Applying the same reasoning used in Massachusetts v. Mellon a half-century before (and which would be used repeatedly in “school choice” cases thereafter), the chain of cause-and-effect in the complaint was simply too tenuous for the Court’s taste.

There was no doubt the federal government was wrong in not applying its own laws, but the children of the plaintiffs themselves had not applied to and been rejected by these private schools. There was no sure way to know whether changing their tax-exempt status would lead to internal policy changes by the schools involved, or the extent to which segregation itself would increase or decrease based on any individual factor. And besides, enforcement of existing laws was actually the job of the Executive Branch. If the courts started stepping in every time the government didn’t do what it was supposed to, well… they’d be overwhelmed by the sheer volume of it all.

In reality the majority opinion by the usually erudite and persuasive Justice O’Connor was a convoluted mess of self-contradicting rationalizations and over-citing. In retrospect, it seemed the Court was simply not interested in that particular fight at the time, so rather than argue the merits (which would be difficult to twist in the government’s favor), they conjured a line of reasoning which rejected the plaintiffs themselves – a rather ugly irony given the subject matter to begin with.  

The More Things Change…

When the Court struck down Alabama’s “moment of silence but really we’re kinda hoping you’ll pray” law in Wallace v. Jaffree (1985), the plaintiffs were parents of school-aged children directly impacted by the evolving legislation. A few years later, in Edwards v. Aguillard (1987), the Court invalidated a state requirement that “Creationism” be taught. Plaintiffs included parents of children in the district, at least a few teachers in the district, as well as local religious leaders. Precedent suggests that if it were only local religious leaders complaining, the Court may have rejected their claim of standing – but it simply didn’t come up.  

1988’s Bowen v. Kendrick involved the Adolescent Family Life Act (AFLA) which provided federal money to groups focused on reducing teen pregnancy. Naturally, this included a number of religious organizations, who for some reason frown on kids having lots of wild sex to begin with. Several taxpayers who didn’t love this blurring of state and church filed a lawsuit challenging the AFLA as a violation of the Establishment Clause. They were granted standing but lost on the merits of their case. This was consistent with Flast in that the issue involved legislative taxing and spending AND the Establishment Clause.

10 CommandmentsCounty of Allegheny v. Greater Pittsburgh ACLU (1989) was another holiday display case. There was no doubt as to plaintiffs’ standing based on the same “unwanted exposure” doctrine inherent in previous cases (but not called that until identified as such by Professor Esbeck a few decades later). The plaintiffs were local residents who had every reason to visit government offices periodically and otherwise walk or drive around their own town, thus making unavoidable the government’s religious messaging.

By the 1990s, lawyers figured they might as well give the ol’ “lack of standing” argument another try when facing establishment challenges in public school settings. Lee v. Weismann (1992) began when a parent objected to prayers at his daughter’s commencement ceremony (essentially graduation for 8th graders). Weisman brought his complaint not only as the parent of a school-aged child but as a taxpayer in the district. The state challenged his right to bring the suit on either basis in the first place. The Court again decided not to go there on this one:

We find it unnecessary to address Daniel Weisman's taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School in Providence and from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation.

In other words, the case had clearly established “unwanted exposure” and a healthy dose of that “endorsement” and “you’re an outsider” stuff Justice O’Connor had so effectively described in Lynch (see Part Two). There was no need to take on the much messier Flast/taxpayer argument, particularly since there was no specific legislative outlay of funds directly related to the offense in question.

Standing in the 21st Century

The same basic grounds for standing utilized in Lee were accepted in Santa Fe ISD v. Doe (2000). In Santa Fe, the issue was prayer over stadium loudspeakers at school football games. The parents bringing the complaint had children who’d been bullied and harassed as a result of the district’s overt hostility towards those outside their religion. The decision doesn’t mention Flast or reference standing, although it cites Lynch at least a half-dozen times. Once again, “unwanted exposure” and implied government endorsement of religion was sufficient.

Establishment CartoonIn 2004, Michael Newdow began objecting to the daily recitation of the Pledge of Allegiance in public schools, arguing that the phrase “under God” violated the Establishment Clause. He filed as the parent of an elementary school student as well as a taxpayer. In Elk Grove Unified School District v. Newdow (2004), the Court declined to address the merits of the case, determining instead that Newdow lacked standing because he was not the custodial parent of his daughter. Unable to establish “unwanted exposure” through his kid, Newdow insisted he nevertheless had standing based on a combination of factors:

•    He sometimes attended class with his daughter and intended to continue to do so.
•    He had considered teaching elementary school in the district.
•    He sometimes attended school board meetings at which the Pledge was recited and intended to continue to do so.
•    He paid child support to his daughter’s mother, who in turn paid taxes in the district.

Despite the charming audacity of his reasoning, Newdow’s claims to standing did not impress the Court. Had mom shared Newdow’s objections, she might have had a case. As it was, the case was dismissed for lack of standing.

In 2005, the Court heard two Ten Commandments cases more or less simultaneously. Van Orden v. Perry involved a monument on the grounds of the Texas Capitol in Austin. McCreary County v. ACLU of Kentucky dealt with a display in Kentucky courthouses. In neither case were the actual displays financed by tax dollars. In Van Orden the plaintiff was a citizen of Austin who passed the display regularly, as would anyone having business at the Capitol. In McCreary, the lower courts addressed standing by noting the names of two individual members of the ACLU who resided in the counties in question. In neither of these “unwanted exposure” cases was standing a particular issue by the time it reached the Supreme Court.

Next time I’ll try to bring this home to the issue of standing in “school choice” cases and a few miscellaneous examples from other circumstances. It’s very much a rough draft finish, but for now, it will at least be a wrap.

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