On standing to sue a Virginia school board for violation of state law

I listened with interest this morning on my walk with the dog to the oral arguments before the Supreme Court of Virginia in the case of Lafferty v. Fairfax School Board. The assignments of error are shown here.

It seems fair to say that the lawyers were challenged by the judges - the appellant's counsel faced hard questions about whether his side had abandoned its assignment of error related to denial of leave to amend to add additional facts to support standing, and counsel for the School Board was challenged to explain what does it take to have standing to assert a Dillon Rule challenge and what are the Dillon Rule limits on school board policies.

On the latter point, the breadth of the school board's express powers under the Virginia Constitution and the Code was the basis for AG Herring's opinion on this same sort of issue in 2015. The Supreme Court relied on the same in its decision in the Payne case. The plaintiff's claim on the merits is weak.

On standing, there is an old case from the Supreme Court of the United States which says that "[u]nlike federal or state taxpayers, municipal taxpayers may fulfill the injury requirement by pleading an alleged misuse of municipal funds." Smith v. Jefferson Cty. Bd. of Sch. Comm'rs, 641 F.3d 197, 210 (6th Cir. 2011) (citing Frothingham v. Mellon, 262 U.S. 447 (1923)). See Nichols v. City of Rehoboth, 836 F.3d 275 (3d Cir. 2016) (same). Virginia courts have acknowledged this rule. See, e.g., Goldman v. Landsidle, 262 Va. 364, 552 S.E.2d 67 (2001) ("The direct and immediate interest of the citizen in the operation of local government, whether based on issues arising from a local election or a local government's exercise of its fiscal authority, permits these citizen or taxpayer challenges.").

Even under the rule for standing in a claim against a municipality, "a plaintiff must not only show that he pays taxes to the relevant entity, he must also show that tax revenues are expended on the disputed practice." Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir. 1995). Nobody pays taxes to a Virginia school board.

I expect that if this case goes down on procedural grounds, there will be another one.