In
Smith v. Jefferson County Board of School Commissioners, (6th Cir., Feb. 11, 2011), the U.S. 6th Circuit Court of Appeals,
en banc, in an 11-4 opinion, held that two plaintiff school teachers have standing as municipal taxpayers to bring an Establishment Clause challenge to the closing of the a Tennessee school district's alternative school and its outsourcing the services instead to a Christian private school. Most of the court's opinion focused on the more liberal standing requirements that courts have found for municipal taxpayers, as opposed to state and federal taxpayers. The majority rejected the argument that because the school district saved money by the outsourcing that taxpayers could not complain. The court also found that the individual teachers who lost their jobs because of the outsourcing did not have standing because in that capacity they were raising Establishment Clause claims of their students which the students could raise on their own. The court unanimously agreed on this aspect of the standing question, as they did that plaintiffs' substantive and procedural due process challenges should be dismissed. Fourteen of the judges agreed that defendants enjoyed legislative immunity as to the individual capacity claims against them. The case produced two concurring opinions and two partial dissents in addition to the main opinion.
Judge Sutton's concurring opinion questioned the validity of having more liberal standing requirements for municipal taxpayers, but concluded that any modification in the doctrine needed to come from the Supreme Court. He argued:
If a state taxpayer ... is not "immediately in danger of sustaining some direct injury as a result" of enforcement of an allegedly unconstitutional law and "merely . . . suffers in some indefinite way in common with people generally,"...why isn't the same true for a meaningful number of city taxpayers? The gross population of the largest 37 cities (41.7 million) after all is roughly the same as the gross population of the 23 smallest States.
The 3-judge panel's decision in the case, handed down in November 2008, had held 2-1 that plaintiffs had individual standing as well as municipal taxpayer standing. (See
prior posting.)
