Bethesda Buses: An Opinion Worthy of a Dissent

May 27, 2008 | | Comments Off on Bethesda Buses: An Opinion Worthy of a Dissent

Standing – the question of whether the plaintiffs in a case even has a case that a court has the power to hear – can be a very complicated issue, but courts tend to make it even more complicated than it should be by … well … getting it wrong.

There are two common strategies courts employ to achieve this. First, they mix the question of standing with other questions such as ripeness, mootness, and the political question doctrine. Second, they include an additional, extrajudicial, element into the question of standing: do we WANT to hear this case.

The combination of these proven strategies-for-error result in many very interesting cases being dismissed on standing grounds, when they should (probably) be dismissed on other, more appropriate, grounds. There is even an entire class of cases in the Fourth Amendment area where the Supreme Court has already told everyone that what they were calling “standing” was actually just a decision on the merits, but, hard-headed as lawyers are, they insist on continuing to call it standing.


Yesterday the 8th Circuit held that Bethesda, a Lutheran school, lacked standing to challenge a policy, which resulted from interpretations of South Dakota statutes and the South Dakota state Constitution, denying the benefits of public busing to students at sectarian schools; a benefit they had enjoyed for some time before the policy went into effect. On March 3, 2003, South Dakota updated its law to expressly permit such busing. On April 23, 2003, before South Dakota reinstated the busing for sectarian students, the plaintiffs sued the School District civilly, alleging violations of their First Amendment rights to free speech and under the Establishment Clause.

The dates here are important. Before March 3 the statute prohibited busing the sectarian students. After March 3, it explicitly permitted that busing, but, although the plaintiffs did not renew their request before April 23, the School District did not extend that benefit to the sectarian students. The lower court held that, for the period before March 3, the plaintiffs lacked standing. The 8th Circuit held that the plaintiffs lacked standing for both periods.


Ok, now the interesting part. To have standing (and I am paraphrasing here) the plaintiffs must (1) have suffered an actual injury, not just some harm they think will come about (2) which was demonstrably caused by the actions of the defendants in the case, and (3) a decision in favor of the plaintiffs must be likely to alleviate that injury. This rule is almost always followed by platitudes about how the judiciary does not exercise executive or legislative power – platitudes which some courts have been keen to mistake for the rule itself.

Getting it Wrong, Part 1 – Before March 23

“The [plaintiffs] cannot show that the School District’s alleged discrimination caused their injury because the School District did not have the statutory authority to bus the [plaintiffs] or any other Bethesda students before March 3, 2003.”

The plaintiff’s response should be “damn right.” That was their point all along. The court conveniently forgets the three part standing rule, conspicuously failing to explain where statutory authority fits in that three part test described above. If the statutes prohibit busing, guess what, the plaintiffs are challenging the enforcement of those statutes.

It becomes clearer when you compare this situation with the cases the court cites in support. See if you can figure out where the court went wrong:

-Police officer lacked standing to challenge city’s race-conscious employment decisions because, even if the city had only promoted based in rank order, he would not have been promoted based on his rank.

-Plaintiff lacked standing to sue because he would not have been referred for openings for which he applied, even if the police chief had not applied an affirmative-action plan.

-A person who fails to satisfy lawful, nondiscriminatory requirements or qualifications for the benefit [sought] lacks standing to raise claims of discrimination in denial of that benefit

-No causation where plaintiff challenges a denial of a benefit on one ground, and it is shown that the plaintiff is, in any event, ineligible for the benefit on some other ground.

In all of the above examples, the courts are saying ‘even if the plaintiffs are right about everything, they still would have been denied those benefits on some lawful basis. Here, the essentially what the court is saying is, ‘if the plaintiffs are right about what the law means, then the law denies them the benefits they claim they are entitled to.” If that didn’t make any sense its because it shouldn’t. Put another way the Court is saying that the causation required by the second part of the standing test exists between the law and the denial of the benefit, not the enforcer (the School District) of the law and the denial of the benefit. This mistakes the court’s initial duty to construe the statue for its ultimate duty to pass on the legality of the distinctions that statute created. If all the School District is doing is enforcing the law, then, it seems perfectly clear that the plaintiff’s claim that the School District violated their civil rights under color of law is no more or less correct just because the School District was correct in its interpretation. This is a question of qualified immunity, not standing.

As a side note, the fact that the law changed does not make the case moot because the plaintiffs are suing civilly, presumably for money damages, for concededly past violations of their civil rights. If they were suing for an injunction against enforcement the case would indeed be moot now that the law changed.

Getting it Wrong, Part 2 – After March 23

The court went on to hold that after the law was amended to authorize the busing, the plaintiffs still lacked standing because between March 23, and the time they filed their lawsuit, they did not renew their request for busing. Conceding that the court “may find a plaintiff has standing even if he or she has failed to take steps to satisfy a precondition [for receipt of that benefit] if the attempt would have been futile” (which is essentially a rule about the burden of proof the plaintiffs must meet to show the causation required by the second part of the standing test) the court holds that “by proffering a nebulous claim that the School District should have ‘understood’ that the [plaintiffs] wanted busing resumed without actually requesting it, the [plaintiffs] ‘failed to show the existence of any injury . . . to warrant judicial intervention.”

The reason this part is wrong is a little bit harder to see. The easiest way to put it is this: the plaintiff’s failure to ask for a benefit they allege they were entitled to does not make their deprivation any less an “injury,” as the court suggests. The post March 23 case is almost certainly unripe, but ripeness is separate from the standing rules.


I am not saying anything about whether the plaintiffs should win the case, just that the way the court went about disposing of the case was wrong. This is a big deal because if we let courts play fast and loose with the rules permitting or denying a plaintiff to get her case heard in court we are letting the judiciary cherry pick its cases, and the more frequently we let bad law slide on jurisdictional matters the more we open the way for the truly disingenuous uses of legal rules to keep out good claims, which happens a lot more often that you might think.

via How Appealing. You can read the opinion itself here (PDF).

Photo courtesy of  Flickr user Beny Shlevich


Comments are closed.

Name (required)

Email (required)


Speak your mind