CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Citation546 F. Supp. 1071
Docket NumberNo. G 80-517.,G 80-517.
PartiesAMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, a District of Columbia corporation; Phyllis Ball, Katherine Pieper, Gilbert Davis, Patricia Davis, Frederick L. Schwass and Walter Bergman, Plaintiffs, v. The SCHOOL DISTRICT OF the CITY OF GRAND RAPIDS, a Municipal corporation; Phillip Runkel, Superintendent of Public Instruction of the State of Michigan; State Board of Education of the State of Michigan; Loren E. Monroe, State Treasurer of the State of Michigan, Defendants, Irma Garcia-Aguilar and Simon Aguilar, Bruce and Linda Bylsma, Robert and Penelope Comer, Clarence and Rosalee Covert, Scipuo and Janice Flowers, John and Shirley Leestma, Intervening Defendants.
Decision Date16 August 1982


Albert R. Dilley, Grand Rapids, Mich., for plaintiffs.

Frank J. Kelley, Atty. Gen. by Gerald F. Young, Asst. Atty. Gen., Lansing, Mich., for defendants Superintendent of Public Instruction, State Bd. of Educ. and State Treasurer.

Baxter & Hammond by William S. Farr and John R. Dastema, Grand Rapids, Mich., for defendant Bd. of Educ. of Grand Rapids Schools.

Stuart D. Hubbell, Traverse City, Mich., for intervening defendants.


ENSLEN, District Judge.

Asserting transgressions of the Establishment Clause, Plaintiffs seek to enjoin certain cooperative educational arrangements, collectively styled "Shared Time", entered into pursuant to Michigan law by the School District of the City of Grand Rapids and various nonpublic, religiously-oriented, elementary and secondary schools located within, or proximate to, the School District. The challenged programs are conducted by public school teachers in classrooms located within and leased by nonpublic schools to the public school district. Courses are offered under the supervision and control of the public school district and utilize books and other materials purchased with public funds. Plaintiffs seek a declaration that the Michigan legislature's authorization of funding for these arrangements is violative of the Establishment Clause of the First Amendment of the United States Constitution, as made applicable to the states by the Fourteenth Amendment.1

I. The Parties

There are six individual Plaintiffs and one organizational Plaintiff. The individual Plaintiffs are Phyllis Ball, Katherine Pieper, Gilbert Davis, Patricia Davis, Frederick L. Schwass, and Walter Bergman, each of whom is a resident in Defendant School District, is a Michigan taxpayer, and opposes the use of public funds by nonpublic schools. The organizational Plaintiff, Americans United for Separation of Church and State, is a District of Columbia corporation composed of persons residing and paying taxes throughout the United States, including the State of Michigan.

The original Defendants are the School District of the City of Grand Rapids; Phillip Runkel, Superintendent of Public Instruction of the State of Michigan; State Board of Education of the State of Michigan; and Loren E. Monroe, State Treasurer of the State of Michigan. A number of individuals, parents of children receiving benefits under the challenged programs, were subsequently permitted to intervene as party Defendants.

At the conclusion of trial, Defendants raised, for the first time, the issue of standing, both with regard to the organizational and individual Plaintiffs. Because the matter of standing is jurisdictional and since a federal court must not exercise its awesome injunctive powers in the absence of jurisdiction, I will resolve those issues seriatim.

First, Plaintiffs' Complaint, at paragraph 4, states that:

Americans United for Separation of Church and State (hereinafter designated Americans United) is an association of persons resident in the State of Michigan and elsewhere throughout the United States having as its objective to defend, maintain and promote religious liberty and the constitutional principle of separation of church and state. In keeping with this objective, Americans United oppose the use of public funds for the support in whole or in part of sectarian schools or other private schools whose policies and practices are intended to advance and indoctrinate religion.

Paragraph 21 of Plaintiffs' Complaint states:

It is contrary to the religious conscience of each of the Plaintiffs, and is contrary to the purpose for which the organizational Plaintiff was formed, to be forced by operation of the taxing power to contribute to the propagation of religion in the support of religious schools.

With respect to the organizational Plaintiff, there are no further jurisdictional allegations in the Complaint. At trial, no representative of Americans United testified, and indeed, there was no proof that Americans United represent Michigan taxpayers. Thus, the organizational Plaintiff has failed to allege, or prove, taxpayer standing to challenge the validity of the Shared Time program. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Rather, it appears that Americans United have attempted to assert standing solely on the basis of some "special status" as a representative of those who oppose the use of public funds for the support of religious institutions. Such "special status" standing was considered and expressly rejected, indeed with respect to the very same organizational Plaintiff, in the Supreme Court's recent decision of Valley Forge Christian College v. Americans United for Separation of Church and State, ___ U.S. ___, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Accordingly, an order dismissing Americans United as Plaintiffs, pursuant to Fed.R.Civ.P. 12(h)(3), will enter this date.2

Consequently, I now address the issue of whether the individual Plaintiffs have sustained their burden with respect to standing. Paragraph 5 of Plaintiffs' Complaint reads:

Each of the individual Plaintiffs is a citizen of the United States and a resident within said school district and pays income taxes and other taxes to the United States and to the State of Michigan and the said school district, and each is a qualified, legal voter registered in the City of Grand Rapids, Kent County, Michigan.

Affidavits were submitted, without objection, by four of the six individual Plaintiffs. Essentially, these affidavits recite that they are citizens of the United States and residents of the Defendant School District who pay federal, state and local taxes, and that they object on the basis of the Establishment Clause to the use of their federal, state and local taxes to support the programs herein challenged. Hence, the individual Plaintiffs have attempted to allege and prove standing to bring the instant action on the basis of their taxpayer status. Flast v. Cohen, supra, establishes a two part test:

The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, ? 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art I, ? 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction. 392 U.S. at 102-103, 88 S.Ct. at 1953-1954.

Applying that test, I conclude that, like the plaintiff in Flast, the individual Plaintiffs satisfy the first part of the test for taxpayer standing. Flast limited taxpayer standing to challenges of the exercise of the congressional spending power. As will be developed below, the Michigan legislature's annual appropriation of funding for the Shared Time program is clearly an exercise of its spending power. The individual taxpayers also satisfy the second part of the Flast test. In other words, the individuals have established the required nexuses between their status as taxpayers and the specific constitutional limitation upon the exercise of the spending power, i.e. the Establishment Clause of the First Amendment to the United States Constitution. For the above reasons, I am satisfied that the individual Plaintiffs do indeed have standing.

II. The State Legislation

The Michigan legislature, like that of many states, has granted extensive authority over the formulation and control of educational policy to administrative agencies and various bodies at the state and local levels, including some of the defendants to this action. By 1976 P.A. 451, ? 1282; M.C. L.A. ? 380.1282; M.S.A. ? 15.41282, the Michigan legislature provided that:

The board of a school district shall establish and carry on the grades, schools, and departments it deems necessary or desirable for the maintenance and improvement of the schools, determine the courses of study to be pursued, and cause the pupils attending school in the district to be taught in the schools or departments the board deems expedient.

Pursuant to the above section, the Michigan Supreme Court has determined that local boards of education have discretionary authority to provide shared time instruction to part-time public school...

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10 cases
  • Americans United for Separation of Church and State v. School Dist. of City of Grand Rapids, s. 82-1600
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    ...decided the case on the basis of transcript testimony and other written documentary evidence which had been submitted to Judge Gibson, 546 F.Supp. 1071. Judge Enslen dismissed plaintiff Americans United for Separation of Church and State and returned judgment in favor of the individual plai......
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