Americans United for Separation of Church & State v. School District

KRUPANSKY, Circuit Judge,

dissenting.

I. ESTABLISHMENT OF RELIGION

Since the majority opinion conspicuously ignores the successful and fully documented operational history of the challenged Shared Time and Community Education programs, and relies upon speculation, conjecture and factually disproved hypotheses, I must respectfully dissent. The salient facts are undisputed and uncomplicated. Grand Rapids, through legislative authorization, has during the six years preceding this action implemented Shared Time and Community Education programs whereby public school instructors teach supplemental secular courses at physical facilities owned by non-public schools in “public classrooms”. These courses have been offered to nonpublic students at public facilities for over 60 years. The exhaustive record compiled in this case is compelling for what it has failed to develop. Although the two programs are offered at over 41 private schools, and involve as many as 470 full and part-time instructors and 11,000 students on an annual basis, no evidence of record supports the proposition that any teacher, even on a single instance either directly or indirectly, used or attempted to use the secular instructional period as a vehicle for sectarian indoctrination. The majority concedes, as it must, that “[tjhere is no proof that any teacher in either Shared Time or Community Development classes has sought in such classes to indoctrinate any student in accordance with the school’s religious persuasion.” (Maj. op., supra, 1404) Although absolutely no evidence of indoctrination or attempted indoctrination exists, in spite of incalculable encounters between pupils and *1409instructors during the six years of the programs’ operation, the majority concludes that conducting the courses on premises owned by non-public schools is, in and of itself per se, advancing religion in violation of the First Amendment to the Constitution. This record demonstrates unequivocally, however, that the Shared Time and Community Education programs have remained in practice constitutionally neutral.

The documented operational history of the challenged Shared Time and Community Education programs places this action in a unique constitutional posture. Although the majority has elected to ignore the flawless operation of the challenged programs, it is a fundamental cannon of jurisprudence that adjudications must be predicated upon the record before the court. This elementary principle is fully applicable to challenges to state action as violative of the establishment clause. For example, the Supreme Court has refused to address the constitutionality of a program authorized by statute until such time as the program had been implemented and an operational record was available for consultation:

The task of deciding when the Establishment Clause is implicated in the context of parochial school aid has proved to be a delicate one for the Court. Usually it requires a careful evaluation of the facts of the particular case. See, e.g., Lemon v. Kurtzman, 403 U.S. [602], 603, 91 S.Ct. 2105 [2108], 29 L.Ed.2d 745 (1971), and Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). It would be wholly inappropriate for use to attempt to render an opinion on the First Amendment issue when no specific plan is before us. A federal court does not sit to render a decision on hypothetical facts, and the Court of Appeals was correct in so concluding.

Wheeler v. Barrera, 417 U.S. 402, 426, 94 S.Ct. 2274, 2288, 41 L.Ed.2d 159 (1974). See also: National Coalition for Public Education and Religious Liberty v. Harris, 489 F.Supp. 1248 (S.D.N.Y.1980).

As an inescapable corollary to Wheeler, the federal court which is reviewing an establishment clause challenge to an existing program must examine the program’s operation and practice to ascertain whether it is constitutionally offensive. See also: Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) (record consulted to ascertain nature of the benefited institutions, percentage of schools sectarian oriented, and amount of monies appropriated); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (extensive record); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (lengthy record compiled during several weeks of trial primarily documenting the nature of the benefited institutions and the manner in which the challenged program was implemented); Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (record supplied through parties’ stipulations as to the manner in which a statutorily authorized program would be implemented); Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (statute authorizing loan of secular texts to non-public students held constitutional in the absence of record establishing that texts were utilized as a vehicle for inculcation); Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973) (statute authorizing revenue bonds to assist institutions for higher education held constitutional in the absence of evidence that monies would be used to advance religious ideologies). Accordingly, it is incumbent upon this court to scrupulously confine its establishment clause analysis to the particular factual contours before it.

The tripartite test for identifying an impermissible state establishment of religion was pronounced in Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971):

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Waltz, supra, 397 U.S. at 674, 90 S.Ct. at 1414.

*1410See also: Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 748, 96 S.Ct. 2337, 2345, 49 L.Ed.2d 179 (1976); Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977); Larkin v. Grendel’s Den, Inc.,- U.S.-,-, 103 S.Ct. 505, 510, 74 L.Ed.2d 297 (1983); Mueller v. Allen,-U.S.-•,-, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983).

A. SECULAR PURPOSE

The district court determined, and the majority concedes, that the challenged programs are attended by a secular purpose and that the first criterion of Lemon has been satisfied.

B. PRIMARY EFFECT

Confronting the inquiry of whether the Shared Time and Community Education programs have an impermissible primary effect of advancing religion, it is initially observed that the schools involved are sufficiently sectarian so as to invoke establishment clause analysis. The record reflects, and the majority observes, that a substantial portion of the functions of the institutions concerned are subsumed in the religious mission. The majority’s finding of impermissible advancement of religion appears to be divisible into three categories: (1) recipients of the program are designated on a basis of religion; (2) the program directly benefits not only the school students but also the non-public institutions by conferring substantial financial benefits to the non-public schools and by maintaining an environment of religious autonomy; and (3) risk that religious doctrines would be advanced by instructors.

The majority predicates its conclusion that the programs at issue advanced religion upon the observation that “[t]he challenged programs impact upon a very narrow religious class of beneficiaries.” (Maj. op., supra, 1398-1399). This statement is in direct contradiction to the majority’s factual finding that “all Community Education programs are otherwise available at the public schools, usually as a part of their more

extensive regular curriculum.” (Maj. op., supra, 1393-1394). Simply, Grand Rapids has provided Community Education programs to both public and non-public school students. Although the only Community Education programs which are challenged in this action are those conducted on the premises of non-public schools, it is obvious that recipients of Community Education programs are not limited to pupils of the sectarian institutions. In this respect the Community Education programs are similar to the constitutionally permissible tax deductions, for tuition, textbooks and transportation available to parents with dependents attending public and private schools. Mueller v. Allen,-U.S.-, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983). It is further similar to the constitutionally firm statute authorizing free loans of textbooks to students attending both private and public schools approved in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). The majority’s reliance upon Nyquist, supra, is therefore misplaced. In that case the constitutionally infirm statutes established three financial aid programs available only to non-public elementary and secondary schools. Simply, in the case at bar, the class of beneficiaries, unlike that in Nyquist, is not so limited.

The majority further predicates a finding of advancement of religion upon the premise that the challenged programs conferred a financial benefit upon the non-public schools by relieving their fiscal responsibilities:

Another glaring nonsecular effect of the programs is that financial responsibility for teaching Physical Education, Art, Music and all of the other available course offerings has been transferred from the private religious schools to the taxpayers.

(Maj. op., supra, at 1399-1400) (emphasis added). The non-public schools, however, were never charged with a responsibility for offering the challenged courses. As the majority concedes,

The specific courses available through the elementary level Shared Time programs would not otherwise be available in any *1411of the nonpublic schools, and are not required for graduation or progression to the next grade.

(Maj. op., supra, at 1392-1393).1 All Shared Time programs, therefore, are supplemental to the statutorily required core curriculum which must be offered by the non-public schools as a condition of state accreditation. Similarly, all Community Education courses are supplemental. It follows logically that the non-public schools have not been relieved of a fiscal responsibility since they were never charged with a statutory duty to offer the supplemental courses at issue.

At best, the Community Education and Shared Time programs permit the non-public schools to offer an expanded supplemental curriculum at the facilities in issue. There is no evidence of record, however, that this expanded curriculum has resulted in an increase in the enrollment of the participating institutions. In fact, the percentage of school age children in Grand Rapids attending non-public schools has remained within 1 percentage point of 30% from 1971 (5 years prior to implementation of the Shared Time and Community Education programs in 1976) to 1981. The district court entered no finding nor is there support in the record that the non-public schools involved were economically distressed or that the challenged programs provided a economic lifeline to sectarian institutions. Rather, the record discloses that said institutions enjoyed and continue to enjoy economic self-sufficiency. In sum, there is no evidence that the sectarian institutions were relieved of fiscal responsibilities or depended upon the challenged programs for economic survival.

The majority also predicates a finding of advancement of religion upon the premise that the challenged programs benefited the schools, as institutions, by enabling them to offer supplemental secular courses while simultaneously avoiding student exposure to non-religious environments. Conspicuously absent from the majority opinion is any reference to Supreme Court precedent in support of the proposition that the maintenance of religious autonomy of the sectarian institutions involved may serve as a criterion for identifying an impermissible advancement of religion. Nor does such a novel legal proposition reflect the spirit of the Court’s establishment clause cases. In Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974) the Court refused to hold unconstitutional a federal statute which authorized federal monies for public schools and “comparable” programs in nonpublic schools. An obvious by-product of the Wheeler statute would be preservation of religious autonomy of sectarian schools receiving grants for “comparable” programs. Similarly, in Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) the state’s constitutionally permissible provision of texts, standardized testing and scoring and diagnostic services at the sectarian schools served, ultimately, to promote religious autonomy. The preservation of a religious environment generated by the Shared Time and Community Education programs at issue is, at best, an “incidental” benefit to the non-public schools. Reflecting decades of precedent, the Supreme Court has recently reaffirmed the proposition that incidental benefits do not offend the first amendment:

One fixed principle in this field is our consistent rejection of the argument that “any program which in some manner aids an institution with a religious affiliation” violates the Establishment Clause.

Mueller v. Allen,-U.S.-,-, 103 S.Ct. 3062, 3065, 77 L.Ed.2d 721 (1983). Accord: Lemon, supra, 91 S.Ct. at 2112; Nyquist, supra, 93 S.Ct. at 2965; Meek, supra, 95 S.Ct. at 1763; Roemer, supra, 96 S.Ct. at 2345.

*1412Last, the majority predicates a finding of advancement of religion upon the programs’ inherent potential to be utilized as a vehicle for indoctrination of religious ideologies:

Without questioning the good faith and integrity of the teachers, this Court cannot ignore the potential for advancing religious doctrine under these conditions. Notwithstanding these concerns, a larger problem lies in the fact that challenged courses are conducted in the sectarian atmosphere of the religious schools. As specifically addressed in Nyquist, there is a deeper concern that the atmosphere of the schools, rather than the actions of the instructors, will have an effect which advances religion.2

(Maj. op., supra, at 1398-1399.) Given the detailed and documented successful operational history of the Shared Time and Community Education programs, the majority’s reliance upon an abstract “potential for advancing religious doctrine[s]” is totally inapposite. No evidence of record supports a finding that any teacher ever advanced religious views during the 6-year period at issue. Rather, the record is replete with myriad affidavits and testimony of program instructors attesting to the contrary. The evidence of record, in its entirety, supports the conclusion that all instructors scrupulously confined their instruction to the secular.

The district court, and the majority, err as a matter of law by interjecting hypothesis into the constitutional “primary effect” inquiry and by ignoring the documented historical display of neutralism which attended the programs’ operations. At least one court has sought to defer to documentary evidence when such exists:

The Court will not conjure up hypothetical situations in the face of a fourteen year record. See Wheeler v. Barrera, supra, 417 U.S. at 426-27, 94 S.Ct. at 2287-88. On the basis of all the evidence presented, the Court concludes that the risk of religious advancement has not been realized and New York City’s Title I program does not have an unconstitutional primary effect.

National Coalition for Public Education and Religious Liberty v. Harris, 489 F.Supp. 1248, 1265 (S.D.N.Y.1980), app. dism., 449 U.S. 808, 101 S.Ct. 55, 66 L.Ed.2d 11 (1980), reh. den., 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980). The risk or danger that an instructor may potentially advance religious views is more properly directed to the issue of whether such instructors require monitoring to insure that no religious views are advanced, which in turn joins the issue as to whether such monitoring would generate impermissible entanglement of church and state. However, when confronted with the second Lemon inquiry, namely, whether the challenged program has the primary effect of advancing religion, the record may not be abdicated in favor of hypothetical speculation. There is no proof that any teacher advanced religious ideologies during the secular activities. All proof is to the contrary. Therefore, the second prong of Lemon has been satisfied.

The Shared Time and Community Education programs are prime examples of the “student benefit programs” which have been repeatedly countenanced by the Supreme Court as constitutionally inoffensive. See: Everson v. Board of Education, supra; Board of Education v. Allen, supra; Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980); Mueller v. Allen, supra. The students’ exposure to supplemental secular instruction renders the pupils, rather than the institutions, the principal beneficiaries of the challenged programs. The Court’s decisions in Allen, Meek and Wolman clearly teach that the state may provide secular written texts to pupils attending sectarian schools without violating the establishment clause. A logical corollary to these cases is the principle that the state may provide oral secular instruction so long as such instruction is, in fact and practice, confined to secular ideologies and does not have the primary effect *1413of advancing religion. In the action sub judiee the students have received secular instruction which is no more constitutionally offensive than the “instruction” which appears in the published forms of textbooks.

C. ENTANGLEMENT

State action which fosters “an excessive government entanglement with religion” violates the establishment clause. Lemon, supra, 403 U.S. at 613, 91 S.Ct. at 2111 (emphasis added). This test, by its own terms, instructs that some entanglement between church and state is constitutionally permissible. See: Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973) (state inspection of private facilities to insure that revenue bond funds were utilized for secular projects did not excessively entangle church and state); Van Mueller v. Allen, supra (state’s inspection of tax return to assure that deductions were not taken for religious textbooks not “excessive”). The administrative relationship which exists between the church and state in the implementation and logistic scheduling process of the Shared Time and Community Education programs is minimal.

The majority predicates a finding of impermissible entanglement upon the theory that the Shared Time and Community Education programs created a potential for the advancement of religious ideologies generating a need to monitor the instructors to insure neutrality. However, since the record unequivocally discloses the complete absence of any religious indoctrination or attempted religious indoctrination during the protracted implementation of the programs at issue irrespective of any monitoring by the state, the majority’s position is equivalent to a per se rule against secular instruction at sectarian owned facilities because of a factually disapproved speculation that a need to monitor this relationship will, without exception, constitute excessive entanglement. Such a per se rule is totally in-congruent with the flexible nature of the establishment clause. The “entanglement” test initially pronounced in Lemon, supra, presupposes the existence of a potential for the advancement of religious ideologies. It has typically been utilized where there is no record as to the presence or absence of religious advancement during the course of the challenged program’s administration; in such instances the court simply identifies the entanglement which would be necessary to assure that the potential for advancement is not realized. See, e.g., Nyquist, supra.

The “primary effect” and “entanglement” criteria of Lemon are therefore related inquiries. Logic dictates that as the “potential” for advancement of religion decreases the need to monitor correspondingly decreases. It is axiomatic that the state’s need to monitor will decrease when the likelihood that religion will indeed be advanced is highly improbable.

In the action sub judiee no instructor during the 6-year period at issue has ever utilized or attempted to utilize the Shared Time and Community Education programs as a vehicle for religious indoctrination. There is no reason to believe that continued implementation of these challenged programs will deviate from this firmly established practice in the future. At this point in the history of the programs’ operations, and in light of the exhaustive record, it is beyond peradventure that there never was a necessity to monitor the program in the past and accordingly every reason to believe that the need will not arise in the future. Without such monitoring or need to monitor, no “entanglement” manifests. The foregoing rationale applies with equal force to the issue of “political entanglement”. There is no evidence of record to support the proposition that any political divisiveness has resulted in response to the Shared Time and Community Education programs.

In the event that any instructor in the future transgresses the constitutional boundaries of neutralism and advances religious ideologies, the federal forum is forever available to timely foreclose such activity. However, upon the flawless record before this Court, it simply cannot be concluded that the Shared Time and Community Education programs are unconstitutional.

*1414II. STANDING

Further, the individual plaintiffs lack standing to initiate this action and it should be dismissed for lack of Article III jurisdiction. In 1968 the Supreme Court issued Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), wherein it distinguished its earlier pronouncements in Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), and conferred standing upon taxpayers to invoke federal jurisdiction upon satisfying certain defined criteria. In Flast, it was observed that Congress had enacted the Elementary and Secondary Education Act of 1965 (Act) pursuant to the authority of Article I, Sec. 8, United States Constitution, which authorizes Congress to appropriate and expend allocated sums for the general welfare. The Act authorized appropriations of federal funds to state educational agencies for distribution to local educational institutions which had submitted education programs designed to aid low income families. Before a local educational agency could receive such funding, however, it was required to submit a “plan” to the state educational agency satisfying various criteria promulgated by the United States Commissioner of Education, the individual responsible for implementation of the act. One salient criterion necessitated the plan to equally benefit low income students attending both public and private institutions. As a result, federal funds were channeled to provide instructors and textbooks in religious schools. A taxpayers’ action was initiated seeking (1) a declaration that either the Act did not approve expenditures to religious schools or, if so, the Act was unconstitutional to the extent as violative of the establishment clause and (2) an injunction prohibiting such expenditures.

Flast established a two-pronged test, as noted by the district court, for taxpayer standing:

Thus, our point of reference in this case is the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program. Whether such individuals have standing to maintain that form of action turns on whether they can demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements. The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.

Id., 392 U.S. at 102-03, 88 S.Ct. at 1953-54.

Flast expressly adjudged that the establishment clause constituted a specific limit on the taxing and spending power:

We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, § 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases.

Id., 392 U.S. at 105, 88 S.Ct. at 1955.

Accordingly, Flast acknowledged taxpayer standing to the extent that it permitted the taxpayer to challenge the constitutionality of an exercise of congressional power *1415emanating from the taxing and spending clause of Art. I, § 8 of the United States Constitution. This criteria was satisfied in Flast since the taxpayer sought a declaration that the Elementary and Secondary Education Act of 1965 was unconstitutional in that it authorizes various expenditures to religious schools. Simply, the Flast taxpayer directly challenged the constitutionality of a congressional enactment. The Flast taxpayer would not have enjoyed standing had the complaint alleged only “an incidental expenditure of tax funds in the administration of an essentially regulatory statute.” Flast, supra, 392 U.S. at 102, 88 S.Ct. at 1953.

In its most recent taxpayer standing decision the Supreme Court reaffirmed the Flast requirement that the challenge issue to a congressional action. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Therein it was observed that Article IV, § 3, Cl. 2 of the United States Constitution (property clause) vests Congress with the power to dispose of property owned by the United States. Consistent with this delegation of power, Congress enacted the Federal Property and Administrative Services Act of 1949. Said Act authorized the Secretary of HEW to dispose of surplus real property “for school, classroom, or other educational use.” The Secretary of HEW promulgated a regulation providing that the price of surplus property sold for a “public benefit” would be discounted to the extent that the United States shared in the benefits of the new use. In accordance with the foregoing authorization, the Secretary conveyed a 77 acre tract of land which had been declared “surplus property” to the Valley Forge Christian College. The entire appraised value of the property at the time of conveyance, $577,500, was discounted and Valley Forge acquired the property without financial payment. The deed from HEW required Valley Forge to use the property for 30 years for educational purposes consistent with Valley Forge’s application. By its own description, Valley Forge’s purpose was to offer collegiate level training to men and women for Christian service as either ministers or laymen. Subsequent to the conveyance, Americans United for Separation of Church and State (Americans United) initiated an action seeking (1) a declaration that the conveyance was void as violative of the Establishment Clause and (2) an order compelling Valley Forge to transfer the tract back to the United States. The Supreme Court adjudged that Americans United, and the individual members thereof, lacked standing as taxpayers to initiate the cause of action because: (1) the complaint did not challenge legislative action, but rather an executive decision by HEW, and (2) the legislative act upon which the HEW decision was predicated emanated from the property clause of the United States Constitution rather than from the taxing and spending clause (Art. 1, § 8):

Unlike the plaintiffs in Flast, respondents fail the first prong of the test for taxpayer standing. Their claim is deficient in two respects. First, the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property. Flast limited taxpayer standing to challenges directed “only [at] exercises of congressional power.” Id. at 102, 88 S.Ct., at 1954. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974) (denying standing because the taxpayer plaintiffs “did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch”).
Second, and perhaps redundantly, the property transfer about which respondents complain was not an exercise of authority conferred by the taxing and spending clause of Art. I, § 8. The authorizing legislation, the Federal Property and Administrative Services Act of 1949, was an evident exercise of Congress’ power under the Property Clause, Art. IV, § 3, cl. 2. Respondents do not dispute this conclusion, see Brief for Respondents 10, and it is decisive of any claim of taxpayer standing under the Flast precedent.

102 S.Ct. at 762-63 (footnotes omitted).

Collectively, Flast and Valley Forge make clear that taxpayer standing demands a *1416challenge to the constitutionality of a congressional action, i.e., a legislative enactment. The Flast taxpayer challenged the constitutionality of the Elementary and Secondary Education Act of 1965. The Valley Forge taxpayers lacked standing because they did not contest the constitutionality of the underlying statute, but rather challenged an administrative decision rendered to implement the statute: “the source of their complaint [was] not a congressional action.” 102 S.Ct. at 762.

Valley Forge firmly established that a federal taxpayer will possess standing as a taxpayer only where the challenged spending or fiscal appropriations derive from a legislative enactment promulgated in accordance with the taxing and spending clause of Art. 1, § 8. By analogy, a state taxpayer, as in the case at bar, must challenge appropriations derived from the state’s constitutional equivalent to Art. 1, § 8 of the United States Constitution. The Michigan Constitution vests in the Michigan Legislature the power to appropriate public funds. The Michigan Legislature has enacted provisions whereby funds derived from liquor excise taxes are channelled to school aid funds, M.C.L.A. § 388.1612 (Repealed by P.A.1982, No. 462, § 2, Eff. April 24, 1983), and general funds may be channelled to school and aid funds, M.C.L.A. § 388.1611, when other funds are insufficient to meet fiscal demand. The Michigan Legislature has also enacted the State School Aid Act of 1979, M.C.L.A. § 388.1601 et seq., which authorizes payment of state school aid funds to local boards of education for part time students receiving shared time instructions. Defendants, pursuant to this statute, and Administrative Rules §§ 340.6 and 340.7, promulgated by the Michigan Department of Education, have authorized payment of school aid funds to local boards of education.

Had plaintiffs challenged the constitutionality of these Michigan legislative enactments, they may possibly have invoked taxpayer standing under the criteria of Flast and Valley Forge. Plaintiffs, however, have not challenged the constitutionality of any statutory provision. Rather, the complaint, at best, avers a vague nexus between the Shared Time and Community Education programs and the status of plaintiffs as taxpayers:

5. Each of the individual plaintiffs is a citizen of the United States and a resident within said school district and pays income taxes and other taxes to the United States, and to the State of Michigan and the said school district, and each is a qualified, legal voter registered in the city of Grand Rapids, Kent County, Michigan.
WHEREFORE, plaintiffs pray:
(1) For a Judgment declaring the leasing and “shared time” arrangement between School District and the various nonpublic schools, and the payment of state aid funds to School District, to be violative of the Establishment Clause of the First Amendment to the United States Constitution, as made applicable to the states by the Fourteenth, and therefore illegal and null and void.

The pleading of such a vague nexus between the challenged programs and plaintiffs’ status as taxpayers is insufficient under Flast and Valley Forge to invoke taxpayer standing. The instant taxpayers, as those in Valley Forge, have simply challenged executive decisions rather than exercises of congressional power. The complaint, as framed, fails to invoke Article III jurisdiction and the cause of action should have been dismissed for this reason.

. The majority herein, citing the district court opinion, continues as follows:

“The participating private secondary schools, however, require for graduation a course in physical education. Such courses are offered at those schools only on a Shared Time basis.”

This statement is misleading since appellants have not appealed from the district court’s judgment to the extent that it prohibits physical education and industrial arts Shared Time classes at the secondary level.

. The majority concedes that the space occupied and used for implementation of the Shared Time Community Education programs have at all times here in issue been completely desanctified and totally devoid of any religious icons or symbols.