School Board in a Bind for Christians’ Contract Work

     (CN) – Two Tennessee teachers can sue a school board for shuttering the alternative school where they worked and outsourcing the program to a private Christian academy, a divided 6th Circuit ruled. The teachers have standing as taxpayers who do not want to pay for a religious institution but not as workers who lost their jobs, according to a majority opinion issued from the 15-judge panel.




     Faced with budget cuts, the Jefferson County Board of School Commissioners voted to eliminate the county’s alternative school in 2003. Vickie Forgerty, who was principal of the alternative school, accepted another principal position offered by the board, while two teachers, Steve Smith and David Kucera, found other work.
     A District Court consolidated the employees’ lawsuits against the Jefferson County Board of School Commissioners in 2005. The plaintiffs sought damages and lost wages for violations of the Establishment Clause, as well as the Fifth and 14th Amendments.
     The board argued that its decision to contract with the religious-minded Kingswood Academy had nothing to do with curriculum – it was just trying to save cash.
     A federal judge granted the board’s motion for summary judgment, in part for lack of standing, and denied the teachers’ motion for partial summary judgment.
     On Friday, the 6th Circuit found that two of the teachers had standing to raise Establishment Clause claims because they still lived in Jefferson County when they filed the suit. Smith, who had moved to Georgia for work when the complaint was filed, has no legal claims against the board, the court found.
     Since the board was engaged in legislative activity, it did not have to give the teachers notice or a hearing when it decided to abolish the alternative school program, the majority opinion states, affirming dismissal of the workers’ procedural due process claims.
     The teachers and principal failed to establish individual standing as former employees because, according to the ruling, their “alleged injuries were the direct result of the board’s decision to allow a third party to run the alternative school, not the result of that third party being a ‘faith-based organization.'”
     “Unlike federal or state taxpayers, municipal taxpayers may fulfill the injury requirement by pleading an alleged misuse of municipal funds,” Judge Karen Nelson Moore wrote for the majority.
     Fogerty and Kucera raised a triable issue with their claim that Jefferson County Board misused funds by paying a religious institution like Kingswood.
     “Only an action that reduces the municipality’s total funds, and thereby increases the risk that taxes will be raised, constitutes the dollars-and-cents pocketbook injury required,” according to the majority opinion, which was joined by 10 other judges from the court.
     Judge John Rogers issued a separate dissenting opinion, joined by two other judges from the 15-member panel.
     “Requiring municipal taxpayers to establish at least some diminution of the public fisc is fully consistent with the distinction between municipal taxpayers and state and federal taxpayers,” Rogers wrote. “Without such a requirement, it is ‘Katie bar the door’ – a county taxpayer could challenge virtually any county action without demonstrating a personal stake in the outcome of the suit.”
     The majority disagreed with the board’s claim that taxes must go up for taxpayers to have a legal gripe.
     “We reject the exhortation of this novel rule,” Moore wrote. “There is no precedent for a requirement that municipal taxpayers show that an unconstitutional act shrinks the public treasury in order to establish standing. Indeed, any such rule would run directly counter to case law from the Supreme Court, from this court, and from our sister circuits.”
     Chief Judge Alice Batchelder, who partially joined in Rogers’ dissent, delivered a separate opinion that, in part, concurred and dissented with the majority. She argued that the teachers lack standing as municipal taxpayers to bring their Establishment Clause claims.
     “Plaintiffs’ claim is essentially a contractual one smuggled in under the guise of an Establishment Clause claim,” Batchelder wrote. “The disconnect between the available remedies and plaintiffs’ injuries not only highlights the causation problem; it bolds, italicizes, and underlines it.”
     The chief judge added that the workers’ main injury was losing their jobs, and those jobs were lost because the board decided to abolish its alternative program, not because it decided to outsource to Kingswood Academy. At that time, the board could have gone a number of ways in establishing a new alternative program, according to the dissent.
     As for the majority’s dicta that “the teachers ‘may have a sufficiently close enough relationship to their students to satisfy the first prong of the test for third-party standing,'” Batchelder concluded that the debate is irrelevant.
     “The teachers’ interest is to be compensated for losing their jobs,” Batchelder wrote. “That is hardly the same as the students’ interest in not being compelled to worship. Deciding whether there is a ‘close relationship’ requires a much more careful and fact-based analysis than that undertaken – unnecessarily – by the majority here.”
     Following the majority’s decision, the District Court must take up the case again for further proceedings with respect to the Establishment Clause claims.
     “The injury to the plaintiffs was not witnessing the result of the expenditure, but the expenditure itself,” Judge Boyce Martin wrote in yet another opinion that concurred fully with the majority. “Paying taxes that are used to support religion is precisely the type of injury that the Establishment Clause guards against.”
     Judge Jeffrey Sutton, who had joined in the majority opinion, also signed off on Martin’s concurrence, along with the majority writer, Judge Moore.

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