Friday, September 23, 2016

Establishment Clause claim stymied by standing objections

I have said it before and I'll say it again. Constitutional "standing" principles can rip the fun out of a lawsuit. We see that again in this case that alleges a Rockland County school district was allegedly in violation of the Establishment Clause over its relationship with Hasidic Jews.

The case is Montesa v. Schwartz, decided on September 12.Seemingly a zillion taxpayers in Ramapo are suing the school district, alleging that a majority of the school board have promoted the Hasidic faith by funding Hasidic schools with public money by manipulating the settlement process governing claims involving disabled students (who are protected under the Individuals with Disabilities in Education Act) and other shifty maneuvers such as the sale and lease of two school buildings and buying religious books with public money.

The Constitution places limits on when you can bring a lawsuit. You have to show a personal stake in the outcome of the case. I can't sue the town I live in just because I don't like how it spends taxpayer money. But I can sue the town if it passes a zoning law that affects how I control my property. There are some exceptions to these standing rules, including ones carved out by the courts allowing people to sue the government under the Establishment Clause, which demands the separation of church and state. The reason for that exception is that Establishment Clause injuries are particularly elusive, and if we make it too hard to being lawsuits under the Clause, then the government will get away with promoting religion simply because the questionable rules will affect everyone, precisely the standing circumstance that prevents everyone from suing.

Under the "direct exposure" theory of Establishment Clause standing,

a plaintiff will have direct exposure standing in at least the following circumstances: when (1) a plaintiff is personally constrained or otherwise subject to control under a governmental policy, regulation, or statute grounded in a “religious” tenet or principle (e.g., a statute that directly precludes plaintiff from conducting  business on Sunday); or (2) a plaintiff is personally confronted with a government‐sponsored religious expression that directly touches the plaintiff’s religious or non‐religious sensibilities. In both situations, it is a plaintiff’s interaction with or exposure to the religious object of the challenged governmental action that gives rise to the injury. Thus, a plaintiff is “directly affected,” as opposed to indirectly affected, by an unconstitutional governmental action when a plaintiff’s injury arises out of plaintiff’s immediate and personal confrontation with the object of that governmental action—most commonly a government‐sponsored religious expression or a governmental policy, statute, or regulation grounded in a religious” tenet or principle.

The relaxed standing requirements under the Establishment Clause are not an open invitation to sue towns and school boards, however. Where there is a "direct exposure" theory of standing to bring these religious favoritism claims, it cannot apply here. Plaintiffs say the school district is depriving its students of a proper education by manipulating the IDEA settlement process in a way that gives Hasidic Jews more money and takes money away from the public schools. But the Court of Appeals (Hall, Lohier and Reiss [D.J. in dissent]) says "the Student-Plaintiffs have not been 'directly affected' by the payment of the IDEA settlements in support of religious institutions; they have only been indirectly affected." The Court explains:

This is so because the alleged harm—the deprivation of educational services—is merely incidental to the IDEA Settlement disbursements themselves. It does not arise out of the Student‐Plaintiffs’ personal interaction with the IDEA Settlement process. The Student‐Plaintiffs’ injury is too far removed, too attenuated, from the alleged unconstitutional component of the act of funneling public monies to support the advancement of Orthodox Hasidic Jewish schools to constitute the type of injury cognizable and compensable as the result of an Establishment Clause violation. We hold, therefore, that the Student‐Plaintiffs do not have standing to assert an Establishment Clause violation.

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