Opinion
Civil Action No. 00-633 Section "N"
April 20, 2000
ORDER AND REASONS
Before the Court are (1) Defendants' Motion to Dismiss for Lack of Standing and Motion to Strike, and (2) Defendants' Motion to Stay Discovery. For the following reasons, Defendants' Motion to Dismiss is GRANTED and Defendants' Motion to Stay Discovery is DENIED as moot.
A. BACKGROUND
This case arises from a challenge to Louisiana's high-stakes testing policy for public school students.
From March 13 through 17, 2000, all fourth and eighth grade students in Louisiana public schools were required to take the "LEAP 21" test, which purportedly assesses a student's skills in four subject areas. The Louisiana Department of Education estimates that approximately one-third of the children will fail the March LEAP test, and approximately half of that number are expected to fail a re-test offered in August to those who failed in March. Such failures will have "high-stakes" consequences: students who do not pass the LEAP test will not be promoted to the next grade. It is undisputed that the results of the March 2000 LEAP test will not be released until late May 2000.
A note on terminology. For purposes of this motion, the Court shall use the words "promote" and "retain" (or "hold back") in relation to an advancement to or repetition of a grade level. The Court shall use the words "pass" and "fail" only in relation to the results of the LEAP test. To "fail" the LEAP test means to receive a score at the "unsatisfactory" level on the English or Math portions of the test. To "pass" the LEAP test means to receive a score at the "approaching basic" level or higher in English and Math.
Thus, a student who "fails" the LEAP test will be "retained" or "held back," whereas a student who "passes" the LEAP test will be "promoted." To avoid confusion, the Court will not say that a student has "failed" or "passed" a grade level.
Plaintiffs, who represent fourth and eighth grade Louisiana public school students who were required to take the March LEAP test, believe that, given the present state of public education in Louisiana, the high-stakes consequences of the LEAP test are unfair. They have therefore filed suit against the Louisiana State Superintendent of Education, the Executive Director for Louisiana's Board of Elementary and Secondary Education, and the members of the Board of Elementary and Secondary Education to prevent them from unfairly enforcing the high-stakes policy. Plaintiffs allege that Defendants are violating the students' Fourteenth Amendment due process rights by "subjecting [them] to a high-stakes examination which will determine if they can be promoted or not and which will hold them responsible for knowing materials and skills which they have not been taught," and by failing to provide them with "a real opportunity to appeal in a timely and meaningful manner." Plaintiffs expressly did "not seek to stop the administration of the test."
Plaintiffs are an unincorporated association of parents and guardians and the individual parents of over one hundred named students.
Complaint ¶¶ 194, 195.
Id. ¶ 1.
Defendants now contest Plaintiffs' standing to challenge the high-stakes policy. Although they assert several grounds, their argument-in-chief can be summarized in one paragraph:
The complaint about the use of the test results is premature, and none of the plaintiffs have standing; because not a single student has received his or her scores, and since it is unknown whether any of the plaintiffs will score below the "approaching basic" level, none has standing to bring this action challenging what happens to those who may score below this level. Since none of the plaintiffs know whether the "high stakes" policy will be applied to them the entire suit should be dismissed.
Defendants' Initial Memorandum p. 2.
After considering the written memoranda, oral argument, and the applicable law, the Court agrees with Defendants for the reasons stated below and therefore dismisses Plaintiffs' claims.
B. LAW AND ANALYSIS 1. Principles of Standing
Although Plaintiffs attempt to characterize Defendants' challenge as mere "technical arguments . . . to deter the court from recognizing its jurisdiction over this case," the Supreme Court has made it clear that the Constitution demands that a plaintiff have standing before a federal court may entertain his or her suit. The standing doctrine stems from the "Case" and "Controversy" language of Article III of the Constitution and derives ultimately from the principle of separation of powers. As the Supreme Court has noted,
Plaintiffs' Opposition Memorandum pp. 1-2.
It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996). By setting apart the "Cases" and "Controversies" that are of the justiciable sort referred to in Article III, the standing doctrine serves "to identify those disputes which are appropriately resolved through the judicial process" as opposed to the legislative process. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 1555, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990)). Because it involves questions of both Constitutional fairness and correct policy choice, the controversy over Louisiana's high-stakes testing program falls squarely within the area of constitutional concern served by the standing doctrine.
To satisfy Article III's standing requirements, a plaintiff must show:
(1) he or she has suffered an "injury in fact" — an invasion of a legally protected interest which is
(a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.Lujan, 504 U.S. at 560-561, 112 S.Ct. at 2136; Friends of the Earth. Inc. v. Laidlaw Envtl. Servs., 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000) (citing Lujan).
In addition to the constitutional elements, the court is to consider three "prudential concerns":
(1) whether the plaintiffs' complaint falls within the zone of interest protected by the statute or constitutional provision at issue;
(2) whether the complaint raises abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches; and
(3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of another.Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992). These "prudential concerns" clearly will overlap with the constitutional elements in a wide variety of cases.
Lastly, an association has standing to bring suit on behalf of its members when:
(1) its members would otherwise have standing to sue in their own right,
(2) the interests at stake are germane to the organization's purpose, and
(3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.Friends of the Earth, 120 S.Ct. at 704 (citing Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
Because standing is an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation. See Lujan, 504 U.S. at 561, 112 S.Ct. at 2136-37. Here, we are at the pleading stage, and general factual allegations of injury resulting from Defendants' conduct may suffice. See id.
Primarily at issue in the instant motion is whether Plaintiffs have met the first requirement of standing, an "injury in fact."
2. Discussion
If Amandi Rock passed the LEAP test and Charles Hammork failed it and was held back, no one would argue that Amandi had standing to challenge Charles' retention — she would not have standing because of the well-settled rule that A is normally not considered to have standing to raise the legal rights of B. See Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) ("Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.") (quoting Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953)). Yet now, because there is still the possibility that Amandi might fail the LEAP test, Plaintiffs ask this Court to find that she now has standing to challenge the retention policy. This, the Court cannot do.
Amandi and Charles are the first two students named individually in the Complaint. In no way is this hypothetical situation intended to offer an opinion as to how these two children will perform on the LEAP test because no one, including the Court, knows what the results will be. And, as discussed more fully below, that is precisely the problem with Plaintiffs' case.
Once she passed the LEAP test, Amandi would lose the standing that Plaintiffs believe probability should now confer.
To have standing, the plaintiffs injury must be, among other things, "particularized" and "imminent." Here, Plaintiffs' alleged injury is neither. Plaintiffs' injury is "generalized" rather than "particularized" because their children face the same abstract possibility of retention faced by every other fourth and eighth grader in the Louisiana public school system. Stated differently, until the LEAP test results are released, we will not know which particular students will actually face the threat of being held back. And until we know which students failed the test, we cannot say that retention is "certainly impending" for any of them. Hence, we cannot say that the injury is imminent for any of these students. See Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. at 2138 n. 2 ("Although "imminence' is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is ` certainly impending.'") (emphasis in original).
Contrary to the Plaintiffs' assertions, this ruling does not mean that we must "wait for the harm to occur" to find that they have standing. As Plaintiffs have maintained consistently, the injury alleged is not the creation of the test, the administration of the test, or the release of the results of the test. Rather, the injury alleged is the illegal application of the test results. In other words, it is the use of the test results to hold back certain children, not the test results themselves, that constitutes the injury alleged. By waiting for the results to be released, we are not waiting for the "harm to occur"; we are waiting to see for whom the harm is certainly impending.
Plaintiffs' Opposition Memorandum p. 7. Plaintiffs' counsel repeated this assertion at oral argument.
Any argument that Plaintiffs have standing to challenge the retention policy before the results are released is, in the Court's opinion, foreclosed by the Seventh Circuit's decision in Brookhart v. Illinois State Board of Education, 697 F.2d 179 (7th 1983) In Brookhart, fourteen handicapped students raised a due process challenge to the Peoria School District's requirement that they pass a "minimal Competency Test" ("M.C.T.") in order to receive a high school diploma. The school board adopted the M.C.T. graduation requirement in the spring of 1978 and first applied it to all students eligible for graduation in the spring of 1980. Eleven of the fourteen plaintiffs anticipated graduation in 1980. These eleven students took the M.C.T. at least once during the 1978-79 and 1979-80 school years, and all eleven failed at least one of its three parts. As a result, they could not graduate. In contrast, two of the plaintiffs did not take the test, and the remaining plaintiff took a pilot test, but her failure could not have affected the rewarding of a diploma because she was only in second grade. The Seventh Circuit held that only the eleven who had taken the test, failed it, and, as a result, were ineligible to receive a diploma had standing. In sharp contrast, because they were not threatened with denial of a diploma, "[n]one of [the other] three plaintiffs had standing to challenge the institution of the M.C.T. as a graduation requirement," although they were free to "renew their claims, if appropriate, at a later date." 697 F.2d at 182. The parallels between the Brookhart plaintiffs who were denied standing and the Plaintiffs before this Court are obvious.
Plaintiffs cite Brookhart in their Reply Memorandum, but do not address its holding with respect to the standing issue. See Plaintiffs' Reply Memorandum p. 7 n. 30.
In addition to the due process challenge, the Brookhart plaintiffs alleged violations of federal and state statutes and of the equal protection clause of the Fourteenth Amendment.
The Court also finds no support for the Plaintiffs' argument that the great probability that at least one of the named students will fail the LEAP test can confer standing upon all of them. Quite to the contrary, the Court finds this argument foreclosed by the rationale articulated by the Supreme Court in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In Lewis, twenty-two inmates challenged the quality of legal libraries in Arizona state prisons on the grounds that the poor quality of the libraries violated their constitutional rights of access to the courts and counsel. The Supreme Court held that the vast majority of these prisoners had suffered no "actual injury." Only those prisoners who were able to show that a legal claim they wished to bring had been lost or rejected or that its presentation was currently being prevented because of the inadequacies of the law libraries or legal assistance offered by the prisons could be found to have suffered an actual injury. Writing for the majority, Justice Scalia noted that "merely the status of being subject to a governmental institution that was not organized or managed properly" does not constitute an actual injury. 518 U.S. at 350, 116 S.Ct. at 2179.
Plaintiffs do not allege that any particular student will fail the LEAP test and be retained. Their argument for standing is premised entirely on the probabilities of failure.
In reaching this conclusion, the Supreme Court discussed a hypothetical example of a healthy inmate who wished to challenge the quality of the prison medical facilities. In the Supreme Court's view, the healthy inmate who had suffered no deprivation of needed medical treatment would be unable to claim a violation of his constitutional right to medical care. To hold otherwise would violate the separation of powers principles of Article III, as the "essential distinction between judge and executive would . . . disappear" and "it would . . . become the function of the courts to assure adequate medical care in prisons." 518 U.S. at 350-51, 116 S.Ct. at 2179-80. Implicit in this opinion is the principle that the mere probability of being subject to a constitutional injury does not confer standing: there is a high likelihood that, at some point during his incarceration, a prisoner would need to avail himself of the prison medical facilities; yet, the probability of his need for medical services at some unknown time in the future does not confer standing upon the inmate, who must wait until he is actually threatened with deprivation of adequate medical services before he can bring his challenge. Analogously, the mere fact that the students named in the Complaint were required to take the LEAP test and thus were exposed to the possibility of a deprivation of their due process rights does not confer standing on them. Like everyone else, the students must wait until they themselves are concretely threatened with injury before they can challenge the allegedly unconstitutional policy.
Plaintiffs cite only one case in support of their probability argument, but that case, Doe v. Beaumont Independent School District, 173 F.3d 274, reh'g granted, 173 F.3d 313 (5th Cir. 1999), is of questionable precedential value. In Doe a Texas school district initiated the "Clergy in Schools" program in which individual members of the local clergy were invited to provide volunteer counseling to selected students at the schools during school hours. A divided panel of the Fifth Circuit reversed the district court's finding that the plaintiffs, who had not actually been selected for counseling, were without standing. For the majority, the fact that the students had not been selected was immaterial" because, even though only 70 out of 1,695 students had been selected to participate, the student plaintiffs were "continually at risk of being selected" for participation, "without advance notice and without parental consent." Once selected, a student was placed in a situation where he must "either attend clergy counseling that he and his parents find offensive or decline after being selected and thus be subjected to . . . being perceived by his teachers and his fellow students as `different.'" 173 F.3d at 283-84.
The other member of the Doe panel dissented squarely on the issue of standing, and would have affirmed the district court's decision. The Fifth Circuit agreed to rehear Doe en banc, although no decision has been reported. It seems likely that Doe will be reversed, as it tends to stray away from traditional notions of"actual injury." Even if Doe is upheld, its holding on standing should be confined to the establishment clause context, which places a special emphasis on the creation of an environment wherein religion is endorsed. Thus, Doe does not compel a finding that Plaintiffs here have standing.
Plaintiffs also gain no advantage in asserting associational standing. Asset forth above, for an association to have standing, at least one of its members must have standing. Because it purports to represent the parent or guardian of every fourth and eighth grade public school student in Louisiana, Parents for Educational Justice will undoubtedly have at least one member whose child will fail the LEAP test and be retained. But, as should be clear from the above discussion, even this "super-probability" does not confer standing on any one student at this time, and, therefore, does not confer standing on the association. Until we know which of its individual members have standing, Parents for Educational Justice has no standing as an association.
Finally, the Court must address Plaintiffs' argument that they have already suffered a cognizable injury which can confer standing. Plaintiffs contend that the students' knowledge that they might be retained has already resulted in anxiety, worry, sleep problems, anger, crying in frustration, and dropping extracurricular activities to study. However, under Supreme Court precedent, mere anxiety that an injury of constitutional magnitude might befall a person does not automatically give that person standing to challenge the source of the stress. For example, in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the plaintiff claimed that several Los Angeles police officers stopped him for a traffic or vehicle code violation and, without provocation or justification, applied a chokehold on him. The plaintiff claimed that these actions were the result of city policy, that others had been injured in the past and were likely to be injured in the future as a result of this policy, and that he "justifiably fear[ed] that any contact he has with Los Angeles police officers may result in his being choked and strangled to death without provocation, justification, or other legal excuse." Id. at 98, 1663 (quoting the plaintiffs' complaint). The Supreme Court held that the plaintiffs fear of being choked in the future did not give him standing to sue for injunctive relief. According to the Court,
Complaint ¶ 138 and Plaintiffs' Reply p. 6.
The prior choking gave plaintiff standing to sue for damages from his prior injury.
The reasonableness of Lyons' fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiffs subjective apprehensions. The emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant. of course, emotional upset is a relevant consideration in a damages action.Id. at 107 n. 8, 1668 n. 8.
Like the plaintiff in Lyons, Plaintiffs here do not face a "real and immediate threat of future injury by the defendant." Quite simply, if the state estimates are correct, the majority of the students taking the LEAP test face no threat of injury whatsoever. Any anxiety over whether they will be one of the unlucky few, although reasonable in a personal sense, is not reasonable in a constitutional sense. The students' alleged anxiety does not give them standing to sue for injunctive relief.
Although none of the Plaintiffs have standing to challenge the high-stakes policy at this time, someone — maybe Amandi Rock, maybe Charles Hammork, or maybe an as-yet unidentified student — may have standing once the test results are released. Thus, although it must be dismissed now, this case can be reopened later with proper plaintiffs.
The Court's ruling moots Defendants' Motion to Strike and Motion to Stay Discovery. The Court also notes that, because it finds Plaintiffs' alleged injury to be neither particularized nor imminent, it will not consider Defendants' alternative argument for dismissal — that Plaintiffs do not have a "legally protected interest" in promotion to the next grade — at this time. However, as should be clear to both parties, this will be a threshold issue if the case is reopened with proper plaintiffs, and the parties have been advised to be prepared to address it.
C. CONCLUSION
Because the Court finds that Plaintiffs have no standing, their Complaint must be dismissed. Accordingly,
IT IS ORDERED that Defendants' Motion to Dismiss for Lack of Standing is GRANTED and Defendants' Motion to Stay Discovery is DENIED as moot. IT IS FURTHER ORDERED that proper plaintiffs may reopen this case once the LEAP test results are released.