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June 19, 1967

Florence FLAST, Albert Shanker, Helen D. Henkin, Frank Abrams, C. Irving Dwork, Florine Levin and Helen L. Buttenwieser, Plaintiffs,
John W. GARDNER, as Secretary of the Department of Health, Education and Welfare of the United States, and Harold Howe, 2d, as Commissioner of Education of the United States, Defendants

The opinion of the court was delivered by: HAYS

HAYS, Circuit Judge:

This is an action to enjoin the defendants from using federal funds to finance guidance services and instruction in reading, arithmetic and other subjects in religiously operated schools, and to prevent the expenditure of federal funds for the purchase of textbooks and other instructional materials for use in such schools. It is alleged that defendants are using federal funds for these purposes in administering Titles I and II of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 241a-241 l, 821-827 (Supp. I, 1965).

 Plaintiffs requested that a three-judge court be convened pursuant to 28 U.S.C. §§ 2282, 2284 to consider their contention that if these expenditures are authorized by the Act the statute constitutes a "law respecting an establishment of religion" and a law "prohibiting the free exercise thereof" in violation of the First Amendment to the Constitution of the United States. Defendants opposed the application for the convening of a three-judge court and moved to dismiss the complaint on the ground that plaintiffs lack standing to sue. The application for a three-judge court was granted. See Flast v. Gardner, 267 F. Supp. 351 (S.D.N.Y.1967). We must decide defendants' motion to dismiss the complaint.

 A group of parents whose children attend religiously operated schools and receive or are eligible to receive special educational help available under the Elementary and Secondary Education Act of 1965 have requested leave to intervene as defendants in this action.

 We hold that plaintiffs have no standing to bring this action, that there is thus no justiciable controversy and this court therefore lacks jurisdiction of the subject matter. Our disposition of the case makes it unnecessary, for reasons set out more fully below, to pass on the application for intervention.


 The issue of plaintiffs' standing has been presented separately and we have received briefs and heard argument only on this preliminary issue.

 It is clear that if plaintiffs have standing to sue it is because they pay federal income taxes.

 Consideration of the standing of a federal taxpayer to sue to prevent the depletion of the federal treasury caused by the expenditure of federal funds for unconstitutional purposes must begin with the Supreme Court's decision in Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). In that case a taxpayer sought to enjoin administration of the Maternity Act of 1921 which provided for the appropriation of federal funds to combat maternal and infant mortality. The taxpayer claimed that by enacting the statute Congress had exceeded its powers and had usurped powers reserved to the states by the Tenth Amendment to the Constitution, and that the effect of the appropriation would be "to increase the burden of future taxation and thereby take her property without due process of law." 262 U.S. at 486, 43 S. Ct. at 600.

 The Supreme Court distinguished cases permitting municipal taxpayers to sue to enjoin the expenditure of municipal funds and stated that the interest of a federal taxpayer "in the moneys of the treasury * * * is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity." 262 U.S. at 487, 43 S. Ct. at 601.

 The Court held that a federal taxpayer, as such, cannot make the showing, necessary for obtaining judicial review of a statute, "that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." 262 U.S. at 488, 43 S. Ct. at 601.

 Plaintiff contend that the Frothingham decision establishes a rule of judicial self-restraint rather than a limitation on the jurisdiction of the federal courts under Article III, Section 2 of the Federal Constitution. They argue that viewed as an expression of the policy of judicial self-restraint the Frothingham rule has no application to issues arising out of the Free Exercise and Establishment Clauses of the First Amendment.

 Since the Frothingham decision is binding on this court regardless of whether it states a constitutional principle or a rule of policy, we need not consider the much debated question whether the rule is one of constitutional dimension. *fn1" Moreover, plaintiffs' attempt to distinguish Frothingham on the ground that the instant litigation involves rights protected by the First Amendment must be rejected in light of the Supreme Court's decision in Doremus v. Board of Education, 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952). In that case a group of taxpayers sought a judgment declaring unconstitutional under the Establishment Clause a New Jersey statute that provided for the reading of verses from the Old Testament at the beginning of each school day. The Supreme Court, citing Frothingham v. Mellon and quoting from its opinion in that case, held that plaintiffs lacked standing to raise this First Amendment claim:


"Without disparaging the availability of the remedy by taxpayer's action to restrain unconstitutional acts which result in direct pecuniary injury, we reiterate what the Court said of a federal statute as equally true when a state Act is assailed: 'The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.' [Commonwealth of] Massachusetts v. Mellon, supra [262 U.S.], at 488 [43 S. Ct. at page 601.]


It is true that this Court found a justiciable controversy in Everson v. Board of Education, 330 U.S. 1 [67 S. Ct. 504, 91 L. Ed. 711.] But Everson showed a measurable appropriation or disbursement of school-district funds occasioned solely by the activities complained of. This complaint does not.


We do not undertake to say that a state court may not render an opinion on a federal constitutional question even under such circumstances that it can be regarded only as advisory. But, because our own jurisdiction is cast in terms of 'case or controversy,' we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any procedure which does not constitute such.


The taxpayer's action can meet this test, but only when it is a good-faith pocketbook action. It is apparent that the grievance which it is sought to litigate here is not a direct dollars-and-cents injury but is a religious difference. If appellants established the requisite special injury necessary to a taxpayer's case or controversy, it would not matter that their dominant inducement to action was more religious than mercenary. It is not a question of motivation but of possession of the requisite financial interest that is, or is threatened to be, injured by the unconstitutional conduct. We find no such direct and particular financial interest here." 342 U.S. at 434-435, 72 S. Ct. at 397. See, e.g., Elliott v. White, 57 App.D.C. 389, 23 F.2d 997 (1928); Protestants and Other Americans United for Separation of Church & State v. United States, 266 F. Supp. 473 (S.D.Ohio 1967); cf. School District of Abington v. Schempp, 374 U.S. 203, 224 n. 9, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963); 111 Cong.Rec. 7317-18 (1965); S.Rep.No. 85, 90th Cong., 1st Sess. 5-7, 17-18 (1967).

 As the quoted material makes clear, Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947) does not support plaintiff's position since that action was brought by a local taxpayer whose economic interests were directly affected by local school board expenditures. Inapposite too are cases such as School District of Abington v. Schempp, supra, Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962); Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952); and [People of State of Illinois] ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948). In each of these cases the plaintiffs were either children attending public schools or their parents who were "directly affected by the laws and practices against which their complaints are directed." School District of Abington v. Schempp, supra, 374 U.S. at 224 n. 9, 83 S. Ct. 1560 at 1572; see Zorach v. Clauson, supra, 343 U.S. at 309 n. 4, 72 S. Ct. 679; cf. McGowan v. [State of] Maryland, 366 U.S. 420, 429-431, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961).

 Finally, although the Frothingham rule has been criticized *fn2" the case has never been overruled or limited by the Supreme Court; *fn3" indeed, the citation of Frothingham in the recent case of Abbott Laboratories v. Gardner, 387 U.S. 136, 153, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967) attests to its continuing vitality. That the Senate has recently passed a bill for the express purpose of creating an exception to the Frothingham rule by conferring standing on any federal taxpayer to raise the First Amendment questions tendered here (see S. 3, 90th Cong., 1st Sess.; S.Rep.No. 85, 90th Cong., 1st Sess. 4-7 (1967)), further supports our conclusion.


 Our disposition of the case makes it unnecessary for us to pass upon the application for intervention. The involvement of the proposed intervenors in the consideration of the motion to dismiss could not have been greater had the motion to intervene been granted. They have filed briefs and participated in oral argument. The contention on which they base their claim that their interests will not be adequately represented by the present defendants, that if the Elementary and Secondary Education Act did not confer equal benefits on parochial school children it would interfere with their right of free exercise of their religion, would be material only if this court were to reach the merits of plaintiffs' complaint. Since we do not reach the merits we need not decide whether this argument of the proposed intervenors requires that permission to intervene be granted.

 The Clerk is directed to dismiss the complaint for lack of jurisdiction of the subject matter.

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