Can people without standing stop challenging school choice programs already?

October 01, 2015 | By RAYMOND NHAN

The ACLU is attempting to destroy school choice in Nevada. Passed in June, the Educational Savings Account law provides between $5,100-$5,700 a year for a child’s education-including transportation, technology, or home schooling. The ACLU’s suit, filed in late August, is just the most recent attempt by school choice opponents to prevent parents from making the best decisions regarding their children’s education. According to the ACLU, the Educational Savings Account violates Nevada’s Constitutional prohibition on spending tax dollars on religious institutions

The ACLU is representing several plaintiffs who object to Nevada providing vouchers to students. The plaintiffs are relying on their status as payers of sales taxes to gain access to state court. There is one problem here. The Nevada court shouldn’t allow the plaintiffs to sue just because they paid sales taxes in the state.

While the judiciary is responsible for vindicating people’s rights, people must meet the constitutional minimums to have access a court. Article III of the Constitution limits federal courts to hearing real cases or controversies. The federal courts have interpreted Article III to mean that plaintiffs need “standing” to sue in federal court. In Lujan v. Defenders of Wildlife, the United States Supreme Court said that a person has standing if he can show that he suffered a harm that was caused by the defendant and that a favorable court ruling would remedy the harm. The Nevada Supreme Court has adopted the Lujan framework to determine whether a person has standing in their state court.

In Flast v. Cohenthe United States Supreme Court said that citizen taxpayers have standing to sue for the allegedly unconstitutional expenditure of federal funds in violation of the Establishment Clause. This is the part of the Constitution that prevents states from funding religious institutions. Flast, however, has been decimated in recent years because it has been read very narrowly. In fact, some Justices have argued that Flast should be overruled because persons claiming that the Establishment Clause has been violated cannot always show that they suffered an injury. Nevada courts have not directly answered whether taxpayers have standing to challenge unconstitutional state expenditures.

The Nevada courts would be wise not to follow the same path the United States Supreme Court did in Flast. Granting taxpayer standing to anyone who paid sales tax is too broad a rule. If Nevada courts adopt this rule, then anyone who buys a soda and pays a dime in sales tax could bring a state-Establishment Clause challenge. Indeed, a person from Alabama visiting Las Vegas on a business trip and bought a bag of chips at a local market could challenge a law that will affect Nevada’s education system. This is bad policy. This hypothetical taxpayer would have no interest in Nevada’s educational program, yet have the power to force a state to defend its policies in court.

If school choice opponents want to repeal the Educational Savings Act, they can do so by lobbying their legislative representatives. Courts are meant to vindicate legal rights. But in order to have access to the courts, one must have an interest in the case at hand. The plaintiffs challenging the Educational Savings Account do not have such an interest.