Via Religion Clause, a federal district court in Minnesota has ruled that the ACLU has standing to challenge the controversial Tarek ibn Ziyad Academy, a charter school that emphasizes the culture of the Middle East. Claiming the school improperly promotes Islam, the suit was initially defended on the basis that, after the Supreme Court's decision in Hein, plaintiffs can't bring the challenge simply by being taxpayers. Judge Donovan Frank disagrees (my emphasis):
The Court concludes that Hein does not preclude the existence of taxpayer standing in this case. Defendants assert that under Hein, there is no taxpayer standing to challenge executive expenditure of general legislative appropriations and to satisfy Hein, a plaintiff must show that the challenged statute contains a legislative directive, mandate, or approval of the provisions of funds to a religious entity. To the extent that Defendants suggest that a statute must mention religion on its face, the Court disagrees. Funding under a legislative enactment that does not specifically mention religion is not necessarily a general appropriation. Hein did not overrule Flast or Kendrick. Accordingly, taxpayers can still establish standing to challenge an otherwise constitutionally valid statute “as applied” so long as they satisfy Flast’s nexus test. Further, unlike the plaintiff in Hein who challenged an executive action, Plaintiff here challenges the application of a state legislative act—the [Minnesota Charter School Law]. The MCSL authorizes (or triggers) the use of taxpayer funds to operate charter schools by triggering funding under Minn. Stat. 126C. The fact that the Commissioner has the responsibility to choose or authorize charter schools (which then in turn receive funding) does not mean that Plaintiff here is challenging an executive action.
The Court’s decision today underscores the importance of taxpayer standing, particularly when there is no other party to sue.
(In his concurrence in Hein, incidentally, Justice Scalia charged Justice Alito's plurality opinion with a lack of "candor" in refusing to acknowledge that its logic requires the overturning of the taxpayer standing doctrine of Flast. This criticism made its way last week into the confirmation hearing of Judge Sotomayor when Senator Feinstein made reference to it in asking about her philosophy of overturning precedent. This ruling by Judge Frank reiterates that Flast remains.)
