Flast v. Cohen (1968) - Part Four: Oh No I've Said Too Much... | Blue Cereal Education

Flast v. Cohen (1968) - Part Four: Oh No I've Said Too Much... | Blue Cereal Education

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…

In case you’re just now joining the party, you might as well start with Part One, Part Two, and Part Three.

“School Choice” and Taxpayer Standing

The numerous “school choice” cases best typified by Zelman v. Simmons-Harris CONTINUE READING: Flast v. Cohen (1968) - Part Four: Oh No I've Said Too Much... | Blue Cereal Education

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

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

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

Recap of Part One:

The 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” CONTINUE READING: Flast v. Cohen (1968) - Part Three: Consider This The Hint Of The Century | Blue Cereal Education

Flast v. Cohen (1968) – Part Two: That’s Me In The Courtroom | Blue Cereal Education

Flast v. Cohen (1968) – Part Two: That’s Me In The Courtroom | Blue Cereal Education

Flast v. Cohen (1968) – Part Two: That’s Me In The Courtroom

Recap of Part One:

The 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.

Nevertheless, plaintiffs – at least in Establishment cases – tended to reference the fact that they were taxpayers in their complaints against government actions over the next several decades, even if they were also parents of students being impacted. It was rarely the focus on the Court’s decisions, but it kinda kept coming up.

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 might have to operate according to a slightly different set of rules than the rest.

Finally, in 1968, the Court did its best to explain exactly what that might look like, at CONTINUE READING: Flast v. Cohen (1968) – Part Two: That’s Me In The Courtroom | Blue Cereal Education

Flast v. Cohen (1968) - Part One: Stand in the Place Where You Sue (Think About Jurisdiction Wonder If You're Injured Now) | Blue Cereal Education

Flast v. Cohen (1968) - Part One: Stand in the Place Where You Sue (Think About Jurisdiction Wonder If You're Injured Now) | Blue Cereal Education

Flast v. Cohen (1968) - Part One: Stand in the Place Where You Sue (Think About Jurisdiction Wonder If You're Injured Now)

Three Big Things:

1. To bring a case before any court, one must first establish “standing.” Typically this means proving specific individual harm resulting from the actions of another and demonstrating that the offending party has the power to change whatever’s causing the harm.

2. Being a taxpayer is rarely sufficient to prove standing in the courts to complain about how one’s tax dollars are being used, even if that use is clearly unconstitutional.

3. When it comes to violations of the Establishment Clause, however, unwanted exposure to the offense is often sufficient to show standing in the eyes of the law because, well… Establishment isn’t like anything else.

Standing Before the Court

During the same session which determined in Board of Education v. Allen that states could provide textbooks to public and private schools alike without violating the Establishment Clause, even if many of those private school students were attending religious institutions, the Court announced in Flast v. Cohen that taxpayers had the right to oppose their tax dollars being used to do just that.  

This was sort of news. It was also sort of confusing.

The case began when Florence Flast and other New York taxpayers objected to federal legislation which provided funds for the purchase of secular textbooks for use in religious private schools. They argued that CONTINUE READING: Flast v. Cohen (1968) - Part One: Stand in the Place Where You Sue (Think About Jurisdiction Wonder If You're Injured Now) | Blue Cereal Education