A federal judge has ruled that a case brought by the ACLU against a Muslim charter school in Minnesota can go forward. The school had sought to have the case dismissed on standing grounds, citing the Hein decision. This case is unusual because it is the ACLU itself that is the plaintiff, not representing another client. It is filed against the Tarek ibn Ziyad Academy and its sponsor, Islamic Relief USA.
The ACLU is claiming taxpayer standing, something that the federal courts have made more and more difficult to establish as legal grounds for bringing a suit. In general, a taxpayer does not have standing to sue the government for spending their tax dollars in an unconstitutional manner, but there is an exception to that rule:
The distinction turns on whether the action being challenged is taken by the executive branch (the governor or the agencies under his control) or the legislature. If it’s the legislature, then there is taxpayer standing to sue; if the executive, there is not. But in reality such decisions are often mixed, and that is true here where the state legislature authorizes the spending and an executive agency determines how it is to be spent.
The defendants argued that the Hein decision precludes standing because the spending of taxpayer money was controlled by the executive branch once the money was appropriated. In Hein, the Freedom from Religion Foundation challenged spending by the White House on a series of conferences involving the President’s Faith-Based and Community Initiatives program. The Supreme Court ruled that FFRF did not have taxpayer standing in that case.
But the judge in this case ruled that Hein did not apply here because in that case, Congress had not explicitly authorized the spending at all. The Faith-Based and Community Initiatives program was created by executive order, not by legislation, and it used funds appropriated to the executive branch for general operations. Thus, the court said, the use of funds in Hein were not “expressly authorized or mandated by any
specific congressional enactment.”
By contrast, this case involves money explicitly appropriated for charter schools and the power given to the executive agency to approve the creation of specific charter schools was power created by legislative action. “The fact that the Commissioner has the responsibility to choose or authorize charter schools (which then in turn receive funding),” the judge said, “does not mean that Plaintiff here is challenging an executive
action.”
The court then went on to underscore the importance of taxpayer standing because in many cases, that is the only way that allegedly unconstitutional conduct can be challenged. That is particularly true in this case, where the chances of finding a student at the school to challenge the school’s actions are almost non-existent.
I’ll be curious to see if the school appeals this procedural ruling or allows the case to go forward. If it is appealed, I hope it is upheld.
