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Florence Flast flips Frothingham on fed funding (Flast v. Cohen)

Quimbee - Flast v. Cohen

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In the 1960s, the federal government passed a law to guarantee an equal education to all children. To help achieve that goal, the law set aside federal tax dollars to fund grants to schools. These grants were available to both secular and religious schools.

The funding of religious schools with tax dollars didn’t sit well with a group of taxpayers, led by Florence Flast. The taxpayers sued the Secretary of Health, Education, and Welfare to block distribution of federal funds to religious schools.

The taxpayers argued that the law forced them to support religion and thus violated the Establishment and Free Exercise Clauses of the First Amendment.

The district court held that the taxpayers lacked standing to bring the lawsuit and pointed to the analogous case of Frothingham v. Mellon, 262 U.S. 447 (1923). In that case, the Supreme Court had concluded that taxpayers lacked standing to challenge federal spending, because their injury was only indirect.

In Flast v. Cohen, 392 U.S. 83 (1968), the Supreme Court changed course.

The Court concluded that Frothingham was not a total bar to taxpayer standing. The Court reversed the lower court and held that the taxpayers did have standing. In so doing, Justice Warren set out the two-part nexus test for taxpayer standing.

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