Flast v. Cohen

Citation392 U.S. 83,88 S.Ct. 1942,20 L.Ed.2d 947
Decision Date10 June 1968
Docket NumberNo. 416,416
PartiesFlorence FLAST et al., Appellants, v. Wilbur J. COHEN, Secretary of Health, Education, and Welfare, et al
CourtUnited States Supreme Court

[Syllabus from pages 83-84 intentionally omitted]

Leo Pfeffer, New York City, for appellants.

Sol. Gen. Erwin N. Griswold, for appellees.

Sam J. Ervin, Jr., for Americans for Public Schools and Baptist General Assn. of Virginia, as amicus curiae.

Mr. Chief Justice WARREN delivered the opinion of the Court.

In Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.

Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. §§ 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that 'each pay(s) income taxes of the United States,' and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers.1 The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.

The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under § 205 of the Act, 20 U.S.C. § 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be 'consistent with such basic criteria as the (appellee United States Commissioner of Education) may establish.' The specific criterion of that section attacked by the appellants is the requirement

'that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate * * *.' 20 U.S.C. § 241e(a)(2).

Under § 206 of the Act, 20 U.S.C. § 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks and other printed and published instructional materials 'for the use of children and teachers in public and private elementary and secondary schools.' 20 U.S.C. § 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must

'provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State * * *.' 20 U.S.C. § 823(a)(3)(B). While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, 'with the consent and approval of the (appellees),' and that such funds have been used and will continue to be used to finance 'instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools' and 'the purchase of textbooks and instructional and library materials for use in religious and sectarian schools.' Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because 'they constitute a law respecting an establishment of religion' and because 'they prohibit the free exercise of religion on the part of the (appellants) * * * by reason of the fact that they constitute compulsory taxation for religious purposes.' The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees' actions are deemed within the authority and intent of the Act, 'the Act is to that extent unconstitutional and void.' The complaint also prayed for an injunction to enjoin appel- lees from approving any expenditure of federal funds for the allegedly unconstitutional purposes. The complaint further requested that a three-judge court be convened as provided in 28 U.S.C. §§ 282, 2284.

The Government moved to dismiss the complaint on the ground that appellants lacked standing to maintain the action. District Judge Frankel, who considered the motion, recognized that Frothingham v. Mellon, supra, provided 'powerful' support for the Government's position, but he ruled that the standing question was of sufficient substance to warrant the convening of a three-judge court to decide the question. 267 F.Supp. 351 (1967). The three-judge court received briefs and heard arguments limited to the standing question, and the court ruled on the authority of Frothingham that appellants lacked standing. Judge Frankel dissented. 271 F.Supp. 1 (1967). From the dismissal of their complaint on that ground, appellants appealed directly to this Court, 28 U.S.C. § 1253, and we noted probable jurisdiction. 389 U.S. 895, 88 S.Ct. 218, 19 L.Ed.2d 212 (1967). For reasons explained at length below, we hold that appellants do have standing as federal taxpayers to maintain this action, and the judgment below must be reversed.


We must deal first with the Government's contention that this Court lacks jurisdiction on direct appeal because a three-judge court was improperly convened below.2 Under 28 U.S.C. § 1253, direct appeal to this Court from a district court lies only 'from an order granting or denying * * * an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.' Thus, if the Government is correct, we lack jurisdiction over this direct appeal.

The Government's argument on this question is two-pronged. First, noting that appellants have conceded that the case should be deemed one limited to the practices of the New York City Board of Education, the Government contends that appellants wish only to forbid specific local programs which they find objectionable and not to enjoin the operation of the broad range of programs under the statutory scheme. Only if the latter relief is sought, the Government argues, can a three-judge court properly be convened under 28 U.S.C. § 2282. We cannot accept the Government's argument in the context of this case. It is true that the appellants' complaint makes specific reference to the New York City Board of Education's programs which are funded under the challenged statute, and we can assume that appellants' proof at trial would focus on those New York City programs. However, we view these allegations of the complaint as imparting specificity and focus to the issues in the lawsuit and not as limiting the impact of the constitutional challenge made in this case. The injunctive relief sought by appellants is not limited to programs in operation in New York City but extends to any program that would have the unconstitutional features alleged in the complaint. Congress enacted § 2282 'to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme * * * by issuance of a broad injunctive order.' Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963). If the District Court in this case were to rule for appellants on the merits of their constitutional attack on New York City's federally funded programs, that decision would cast sufficient doubt on similar programs elsewhere as to cause confusion approaching paralysis to surround the challenged statute. Therefore, even if the injunction which might issue in this case were narrower than that sought by appellants, we are satisfied that the legislative policy underlying § 2282 was served by the convening of a three-judge court, despite appellants' focus on New York City's programs.

Secondly, the Government argues that a three-judge court should not have been convened because appellants question not the constitutionality of the Elementary and Secondary Education Act of 1965 but its administration.3 The decision in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), is dispositive on this issue. It is true...

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