Lamont v. Woods

• Decision Date: 26 September 1991
• Docket Number: D,No. 1145,1145
• Parties: , 71 Ed. Law Rep. 50 Corliss LAMONT; Isaac Asimov; Balfour Brickner, Rabbi; Augusta P. Finkelstein; Florence Flast; Bruce Southworth, Reverend; Nina Untermyer; Americans for Religious Liberty, Inc., Plaintiffs-Appellees, v. Alan WOODS, as Director of the Agency for International Development, Department of State; David Santos, Director of the Office of American Schools and Hospitals Abroad, Department of State, Defendants-Appellants. ocket 90-6311.
• Court: U.S. Court of Appeals — Second Circuit

Page 825

948 F.2d 825

60 USLW 2243, 71 Ed. Law Rep. 50

Corliss LAMONT; Isaac Asimov; Balfour Brickner, Rabbi Augusta P. Finkelstein; Florence Flast; Bruce Southworth Reverend; Nina Untermyer; Americans for Religious Liberty Inc., Plaintiffs-Appellees, v. Alan WOODS, as Director of the Agency for International Development, Department of State; David Santos, Director of the Office of American Schools and Hospitals Abroad Department of State, Defendants-Appellants.

No. 1145, Docket 90-6311.

United States Court of Appeals, Second Circuit.

Argued March 1, 1991.

Decided Sept. 26, 1991.

Bernard W. Bell, New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Edward T. Ferguson, III, of counsel), for defendants-appellants.

Herman Schwartz, Washington, D.C. (C. Edwin Baker, John A. Powell, American Civil Liberties Union Foundation, New York City, of counsel), for plaintiffs-appellees.

Before OAKES, Chief Judge, CARDAMONE and WALKER, Circuit Judges.

OAKES, Chief Judge:

Aristotle once observed that to give money away is an easy matter and in any man's power, but to decide to whom to give it, for what purpose and how, is neither in every man's power nor an easy matter. ¹ The observation remains true to this day, as this case illustrates.

This is a federal taxpayers' Establishment Clause challenge to the appropriation and expenditure of public funds by the United States for the construction, maintenance and operation of foreign religious schools. Defendants sought summary judgment on three independent legal grounds: (1) that plaintiffs lacked standing to sue; (2) that plaintiffs' claims raised nonjusticiable political questions; and (3) that the Establishment Clause did not apply to the government's activities in foreign countries. The United States District Court for the Southern District of New York, Leonard B. Sand, Judge, denied defendants' motion for summary judgment, but certified the three potentially dispositive issues raised by defendants for immediate appellate review under 28 U.S.C. § 1292(b). We accepted review, and now affirm the judgment of the district court.

BACKGROUND

1. The ASHA Program

The Foreign Assistance Act of 1961, Pub.L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. §§ 2151-2429), was initiated to encourage and assist the people of developing countries "to acquire the knowledge and resources essential to development ASHA grants are not made directly to foreign schools. Rather, grants are made to individuals or organizations in the United States for the benefit of specific foreign schools. The United States sponsors are then responsible for transferring the funds overseas. AID addresses any concerns or information regarding grants to the United States sponsors, and has virtually no direct contact with the foreign affiliates.

                and to build the economic, political, and social institutions which will improve the quality of their lives."  22 U.S.C. § 2151 (1988).   The American Schools and Hospitals Abroad ("ASHA") program is one of the many foreign aid programs established by the Foreign Assistance Act.   See id. § 2174.   Under the ASHA program, the President is authorized "to furnish assistance, on such terms and conditions as he may specify, to schools ... outside the United States founded or sponsored by United States citizens and serving as study and demonstration centers for ideas and practices of the United States."   Id. § 2174(a).   The ASHA program is administered by the Agency for International Development ("AID") through the Office of American Schools and Hospitals Abroad (the "ASHA Office"), and under the policy guidance of the Secretary of State.   Id. § 2151(b)
                

It is the job of the ASHA Office to solicit and review grant applications from would-be United States sponsors, and recommend deserving applicants to AID's administrator, who is responsible for all final decisions. In evaluating applications, the ASHA Office is guided by a number of criteria pertaining to prospective grantees and their sponsors. See 44 Fed.Reg. 67,543 (1979). For example, sponsors "must demonstrate a continuing supportive relationship" with the schools for which they seek assistance, as by providing them with financial and management support. Id. at 67,544 (criterion 1). The schools themselves must be centers for American educational ideas and practices, with programs of study that reflect favorably on and increase understanding of the United States. Id. (criteria 2 & 3). While they should be staffed largely by United States citizens or persons trained in the United States, they must be attended predominantly by citizens of countries other than the United States. Id. (criteria 5 & 6). More important for purposes of this lawsuit, ASHA-assisted schools "must be open to all persons regardless of race, religion, sex, color or national origin." Id. (criterion 8) (emphasis added). While this criterion does not bar religiously affiliated or even pervasively sectarian schools from participating in the program, it does proscribe the use of ASHA grants "to train persons for religious pursuits or to construct buildings or other facilities intended for worship or religious instruction." Id.

2. The District Court Proceedings

In this action, plaintiffs Corliss Lamont, Isaac Asimov, Balfour Bruckner, Augusta Finkelstein, Florence Flast, Bruce Southworth, Nina Untermyer and Americans for Religious Liberty, Inc. sue Alan Woods, Director for AID, and David Santos, Director of the ASHA Office. Plaintiffs challenge the defendants' funding of twenty foreign schools that have received one or more grants under the ASHA program since fiscal year 1983. In particular, plaintiffs challenge grants to eleven Israeli schools and to nine schools affiliated with Roman Catholic religious orders and located in the Philippines, Egypt, Jamaica, Micronesia and South Korea. These institutions, both secondary schools and universities, are affiliated with United States sponsors of either the Jewish or Catholic faith. Plaintiffs contend that all twenty schools are pervasively sectarian, and that financial assistance to these schools under the ASHA program therefore violates the Establishment Clause.

Plaintiffs commenced this action on February 1, 1988, and filed a second amended complaint on February 22, 1988. On March 4, 1988, defendants moved to dismiss the second amended complaint on the ground that plaintiffs lacked standing. The district court denied this motion on April 6, 1988. Following discovery, the parties cross-moved for summary judgment. In their motion, defendants reasserted that On October 2, 1990, in a thoughtful and well-reasoned opinion, Judge Sand denied both parties' motions for summary judgment. Lamont v. Schultz, 748 F.Supp. 1043 (S.D.N.Y.1990). First, the court held that plaintiffs have standing as federal taxpayers to maintain this action, relying primarily on Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) and Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988). See 748 F.Supp. at 1047-48. Second, the court found that, given the "strong nexus" between the United States sponsors and the foreign schools, the claims asserted were not barred by the political question doctrine. Id. at 1049. Third, the court concluded that "domestic Establishment Clause standards are applicable to the ASHA program." Id. at 1052. Having decided these threshold questions, the court went on to consider whether the challenged ASHA grants violated traditional Establishment Clause standards, but determined that there were disputed factual issues precluding resolution of the case on a summary judgment motion. Specifically, the court found that "[i]n all twenty of the challenged schools, [the parties] disagree on most of the factors that determine the nature of an institution which dictates whether it is pervasively sectarian" within the meaning of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). 748 F.Supp. at 1055.

plaintiffs lacked standing, and argued further that the case raised nonjusticiable political questions, and that the Establishment Clause does not apply to the Government's foreign activities.

Because the threshold questions in this action involved "controlling question[s] of law as to which there is substantial ground for difference of opinion," 28 U.S.C. § 1292(b) (1988), the district court certified all three questions to this Court for immediate appellate review. See 748 F.Supp. at 1057. On October 12, 1990, defendants petitioned this Court for permission to appeal pursuant to 28 U.S.C. § 1292(b). By order dated November 21, 1990, we granted defendants' petition. We now affirm.

DISCUSSION

1. Standing

The doctrine of standing incorporates constitutional and prudential limitations on federal court jurisdiction, both of which are " 'founded in concern about the proper--and properly limited--role of the courts in a democratic society.' " Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975)). At a minimum, Article III of the Constitution requires a party seeking to invoke a federal court's jurisdiction to demonstrate that: (1) " 'he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' "; (2) "the injury 'fairly can be traced to the challenged action' "; and (3) the injury " 'is likely to be redressed by a favorable decision.' " Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted). If these constitutional minima are satisfied, a court may nevertheless deny standing for prudential reasons, as for example because the asserted injury constitutes a "generalized grievance" that is more appropriately addressed in the representative branches. See Allen,...