School choice questions
The comments thread to my recent post at Panda’s Thumb have diverged from the original subject into some other issues, so I thought it best to continue the conversation here. Although I don’t allow comments on my blog, readers are welcome to email me, and I will post their pertinent comments, with or without their names as they desire.
A Mr. Barney Frank wrote that school choice programs that allow parents to spend tax dollars to send their children to schools which teach bigotry, violate the Equal Protection Clause of the Fourteenth Amendment. I said I disagreed because mere personal offense at the expenditure of tax dollars to support the propagation of certain ideas is not enough to state a violation of the Equal Protection Clause. Mr. Frank now replies,
it’s not your “personal offense” which is the Constitutional problem. It’s the encouragement of discrimination. Do you believe that I would have no standing to bring an Equal Protection case against a tax-payer (voucher) funded teacher who home-schooled children in my school district that blacks were mentally and physiologically more primitive than whites?
The answer is, no, a taxpayer would almost certainly not have standing in such a case. The only time a taxpayer has standing to sue for the wrongful expenditure of tax dollars is in cases involving the Establishment Clause. I know of no case allowing a person to sue to block the expenditure of tax dollars to teach students anything with regard to race relations. The closest I can think of is Allen v. Wright, 468 U.S. 737 (1984). In that case, a group of parents sued the IRS for giving tax-exempt status to schools that discriminated based on race. The parents argued that this policy harmed them in two ways: “First, they say that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools. Second, they say that the federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated.” Id. at 752-53. The Supreme Court held “that neither suffices to support respondents’ standing. The first fails under clear precedents of this Court because it does not constitute judicially cognizable injury. The second fails because the alleged injury is not fairly traceable to the assertedly unlawful conduct of the IRS.” Id. at 753.
This is obviously not the same thing as saying that schools ought to teach such things. But a taxpayer lacks standing to sue to enjoin the expenditure of tax dollars on (in Mr. Frank’s words) “encouragement of discrimination.” Now, in my original comment, I mentioned that I think the federal bar on taxpayer standing is insupportable, and I cited Prof. Epstein’s excellent article on the subject. But as the current law stands, a parent lacks such standing.
Oh, and people also usually lack standing, in Equal Protection cases, to assert the rights of others. I believe the only time a person may bring a lawsuit against the state for discriminating against someone else is in the context of racial discrimination on juries. See Campbell v. Louisiana, 523 U.S. 392, 397 (1998) (citing Powers v. Ohio, 499 U.S. 400 (1991)).
