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The Bill of Rights Was Written to Help These Parents

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What good is the establishment clause if you can never use it? That’s the takeaway from a federal appeals court that refused to entertain a claim by parents in a New York town who allege that the Hasidic majority of the school board is illegally diverting money to religious institutions.

The court relied on a narrow interpretation of the doctrine of standing, holding that the parents’ case couldn’t continue because they hadn’t been directly harmed by exposure to an unwanted religious law or message. This would be a shock to the Founding Fathers, who staunchly opposed spending tax dollars on religious causes -- but weren’t much troubled by government endorsement of religion. The appeals court’s decision stands the Framers’ establishment-clause values on their head.

The case arose in the heavily Hasidic town of East Ramapo, New York. Because Hasidim typically send their children to private Jewish religious schools, there’s the potential for conflict between the interests of the majority that elects the school board and the interests of the non-Hasidic minority that uses the public schools. To give you some sense of the structure, the town has 33,000 students, of whom just 9,000 attend its public schools.

A group of parents sued the school board, claiming that its members were funneling money to religious schooling in violation of the establishment clause. They alleged that the school board systematically manipulated settlements provided under the Individuals with Disabilities Education Act to facilitate religious education for disabled children. They argued that the school board gave preferential treatment to Hasidic institutions in leasing a closed elementary school to a synagogue and selling another one to a yeshiva at below market rates. And the parents claimed that the school board used government funds to purchase religious books with titles like “I Keep Kosher” and “Let’s Go to Shul!” which were then lent to religious schools.

I have no idea whether these allegations are accurate.  And now neither will anyone else, because a divided panel of the U.S. Court of Appeals for the 2nd Circuit dismissed the parents’ claims for lack of constitutional standing.

All federal cases require a showing that the plaintiff has suffered a real and concrete harm. In the case of the establishment clause, the U.S. Supreme Court at one time recognized that a taxpayer could have standing on the theory that the government harms taxpayers when it spends money on religion.

That view, which the court first clearly articulated in 1968, was consistent with the original purposes of the establishment clause. The First Amendment, drafted by James Madison and ratified by the first Congress as well as the state legislatures, was concerned, among other things, with the expenditure of government funds for religious purposes. At the time that was widely understood to be a form of religious coercion for taxpayers who didn’t want money to go to the religious cause in question. Given that the founding generation thought that government religious expenditures were a particular harm to taxpayers, it made sense for the court to recognize injury and standing.

Over time, however, the Supreme Court has chipped away at establishment-clause standing for taxpayers. Aware of this limitation, the East Ramapo plaintiffs didn’t make a claim on this basis. Instead, they argued that they have suffered “direct harm” under the clause.

The 2nd Circuit panel held that the parents were not “directly affected” by the alleged school board actions. It said that direct harm arises either when a plaintiff “is exposed to and affected by a law that on its face establishes religion” or when the plaintiff “is exposed to and affected by religious expression or message sponsored or promoted by the government.”

The court said that the former category basically involved economic harm while the latter involved a symbolic or expressive harm.

And it concluded that the East Ramapo parents didn’t fall into either category -- because they only alleged that they were unlawfully deprived of public funds that would otherwise have been spent on the education of their children. This, the court said, was a “novel theory.”

It isn’t. To the contrary, it’s a theory that Madison would have recognized immediately. The state’s funds are allegedly being dispersed for religious purposes. That harms all taxpayers -- but it directly harms parents whose children would otherwise be receiving those funds.

The irony here is that the court was willing to acknowledge that the parents would have standing if, for example, the children were exposed to prayer in public schools. The Founding Fathers probably wouldn’t have been bothered by that practice, provided no one was coerced to pray. In general, the Founders thought the establishment clause prohibited coercion and the expenditure of funds. They didn’t think it protected individuals from being exposed to symbolic expressions of religion.

In dissent, Judge Christina Reiss, a district judge sitting by designation, wrote correctly that the establishment clause shouldn’t require a direct personal confrontation with religion. She argued, again correctly, that a direct causal link between the town’s expenditures and the children’s education should have been enough to confer standing.

The 2nd Circuit should reconsider this panel’s holding en banc. The establishment clause will become a dead letter if plaintiffs can’t get into court to challenge government spending on religious purposes.

  1. New York’s state education department has found that the town was inappropriately placing disabled students in private schools when public places were available.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net