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FLAST v. GARDNER

June 19, 1967

Florence FLAST, Albert Shanker, Helen D. Henkin, Frank Abrams, C. Irving Dwork, Florine Levin and Helen L. Buttenwieser, Plaintiffs,
v.
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.

 I.

 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 ...

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