Disability Rights WI v. Walworth County Bd ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1755
DISABILITY RIGHTS WISCONSIN, INC.,
Plaintiff-Appellant,
v.
WALWORTH COUNTY BOARD OF SUPERVISORS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 C 813—Rudolph T. Randa, Chief Judge.
____________
ARGUED NOVEMBER 9, 2007—DECIDED APRIL 14, 2008
____________
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Disability Rights Wisconsin,
Inc. (“DRW”) is a non-profit corporation created under
Wisconsin law in order to “[p]ursue legal, administrative
and other appropriate remedies to ensure the protection
of the rights of persons with developmental disabilities
or mental illness.” Wis. Stat. § 51.62(3)(a)(1). DRW filed
suit against the Walworth County Board of Supervisors
(“Board of Supervisors”) alleging that the Board of Super-
visors’ operation of a separate educational facility for
disabled children violated Title II of the Americans with
2 No. 07-1755
Disabilities Act and Section 504 of the Rehabilitation Act
of 1973. The Board of Supervisors moved to dismiss,
arguing that DRW lacked standing to bring suit. The
district court granted the motion. DRW appeals the dis-
trict court’s dismissal arguing that it has both standing
to sue on its own behalf and associational standing to
sue on behalf of its members. We affirm.
I.
When reviewing the grant of a motion to dismiss “we
take as true all well-pleaded factual allegations in the
complaint and make all plausible inferences from those
allegations in the plaintiffs’ favor.” Levy v. Pappas, 510 F.3d
755, 764 (7th Cir. 2007). The allegations set forth in DRW’s
First Amended Complaint present the following facts.
Walworth County, Wisconsin has a publicly funded
program known as the Walworth County Children with
Disabilities Education Board (“Disability Board”) which
has as its purpose educating children with disabilities. The
Disability Board, which undertakes such responsibilities
as designing and administering curricula, was created
by the Board of Supervisors according to Wisconsin Stat-
ute § 115.817,1 and acts under the Board of Supervisors’
supervision and control. One of the means by which the
Disability Board fulfills its mandate is by operating the
Lakeland School, described by DRW as “a restrictive,
1
Section 115.817 provides, among other things, that county
boards of supervisors may establish special education pro-
grams for school districts, and those programs may provide
for “one or more special schools, classes, treatment or instruc-
tion centers.” Wis. Stat. § 115.817(2)(a)-(b).
No. 07-1755 3
segregated educational environment that exclusively
educates disabled students.” The Lakeland School opened
in 1950 with fourteen students, and currently enrolls 260,
or eleven percent, of the 2,300 students receiving special
education services in Walworth County. DRW points out
that Wisconsin’s statewide county average of disabled
children educated in a separate school is less than one
percent, and alleges that the Lakeland School is a major
factor in the higher rate at which children are separately
educated in Walworth County. According to DRW, the
Disability Board has stated that only a small number of
Lakeland’s students have “significant needs,” and DRW
therefore believes that a “large majority” of Lakeland
students would be able to be educated in a more integrated
environment. DRW alleges, however, that because of the
Disability Board’s funding and contract agreements,
virtually all of the special education employees in
Walworth County are employed by the Disability Board,
and there is a disincentive for the school districts to fund
and staff special education programs at their “non-segre-
gated” schools.
The incident that finally led DRW to file suit was the
Board of Supervisors’ approval of Resolutions 84-02/06
and 83-02/06 which provided for bonding in the amount
of twenty-two million dollars. The Board of Supervisors
endorsed the use of these funds to construct a new
Lakeland School. DRW alleges that the Board of Super-
visors intends to construct a bigger facility, and that
when the new building is completed, the number of
disabled students able to attend the Lakeland School
will increase significantly.
To prevent this action by the Board of Supervisors,
DRW brought suit on August 2, 2006, under Title II of the
4 No. 07-1755
Americans with Disabilities Act, 42 U.S.C. §§ 12131 and
12132 (“ADA”), and Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794. DRW alleged that the effect of
directing resources to the Lakeland School is that a dis-
proportionate number of disabled children end up edu-
cated there, and they are therefore not educated “in the
most integrated environment to the maximum extent
appropriate.” The Board of Supervisors moved to dis-
miss, claiming that DRW lacked standing to pursue
these claims, or in the alternative, that it had failed to
exhaust its administrative remedies. On March 14, 2007, the
district court granted the motion, concluding that DRW
lacked associational standing and declining to reach
the exhaustion argument. DRW appeals this dismissal,
arguing that it has both standing to sue on its own behalf,
as well as associational standing to pursue claims on be-
half of its members.
II.
Whether a party has standing to bring suit is a ques-
tion of law we review de novo. Winkler v. Gates, 481 F.3d
977, 982 (7th Cir. 2007). The party seeking to invoke fed-
eral jurisdiction, here DRW, has the burden of estab-
lishing that it meets the requirements of standing. DH2,
Inc. v S.E.C., 422 F.3d 591, 596 (7th Cir. 2005). The stand-
ing requirements under Article III of the Constitution are
well settled: “injury in fact, a causal connection between
the injury and the defendant’s conduct, and likely
redressability through a favorable decision.” Winkler,
481 F.3d at 979 (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 561-61 (1992)). Prudential standing, on the other
hand, “embodies ‘judicially self-imposed limits on the
exercise of federal jurisdiction.’ ” Elk Grove Unified Sch.
No. 07-1755 5
Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Allen v.
Wright, 468 U.S. 737, 751 (1984)).2 Because the prudential
standing analysis assumes satisfaction of the Article III
requirements, we turn first to the requirements set out
in Lujan.
In considering whether DRW has alleged an injury in
fact, we recall that “[a]t the pleading stage, general factual
allegations of injury resulting from defendant’s con-
duct may suffice . . . .” Lujan, 504 U.S. at 561. DRW asserts
in its brief that when Walworth County constructs the
new Lakeland School, it will suffer injury because it
will have to devote more of its resources to representing
disabled children who want to avoid becoming part of
the larger group that will be placed at the facility. Presum-
ably this claim anticipates that there will be children
assigned to the Lakeland School whose parents object to
that placement and turn to DRW for help. Expenditure
of additional resources by a disability rights advocacy
group in representing disabled members as the result of
governmental conduct has been deemed, in some cir-
cumstances, to amount to an injury in fact. See Pennsylvania
Protection and Advocacy, Inc. v. Houston, 136 F. Supp. 2d.
353, 361 (E.D. Pa. 2001) (finding that a disability rights
2
The Supreme Court has never given exhaustive definition to
the various limitations making up prudential standing. Newdow,
542 U.S. at 12. It has stated, however, that “prudential standing
encompasses ‘the general prohibition on a litigant’s raising
another person’s legal rights, the rule barring adjudication of
generalized grievances more appropriately addressed in the
representative branches, and the requirement that a plaintiff’s
complaint fall within the zone of interests protected by the
law invoked.’ ” Id. (quoting Allen, 468 U.S. at 751).
6 No. 07-1755
advocacy group had standing to sue in its own right where
it alleged that it spent time, money, and resources advocat-
ing for disabled persons affected by Pennsylvania’s
policies). Likewise, we recently held that the Democratic
party had standing to seek an injunction against enforce-
ment of a law requiring voters to present a photo identifi-
cation before voting because the law would compel “the
party to devote resources to getting to the polls those of
its supporters who would otherwise be discouraged by
the new law . . . .” Crawford v. Marion County Election Bd.,
472 F.3d 949, 951 (7th Cir. 2007), cert. granted, 128 S. Ct.
33 (2007).
Despite these court decisions arguably supporting
DRW’s assertion regarding expenditure of resources,
its argument fails because what DRW presents in its brief
regarding expenditure of resources is nowhere alleged
in its First Amended Complaint. To sufficiently set forth
an injury in fact, DRW would need to make allegations
that advocating on behalf of children wrongfully placed
in the Lakeland School was going to cause it to expend
more of its time, money and resources. Instead, DRW
alleges how the new Lakeland School will affect the
disabled children of Walworth County, and repeatedly
claims to bring the suit “on [their] behalf.” Furthermore,
the only rights DRW claims are infringed by the Board
of Supervisors’ conduct are those of Walworth County’s
disabled children. Finally, the only relief DRW seeks on
its own behalf in its Prayer for Relief are the attorneys’
fees and costs incurred in filing this action. “Ordinarily . . .
the allegation [of a reasonable probability of suffering
tangible harm] is enough,” MainStreet Org. of Realtors v.
Calumet City, Ill., 505 F.3d 742, 745 (7th Cir. 2007), however,
DRW made no such allegation in its First Amended
No. 07-1755 7
Complaint. While DRW compares itself to the plaintiff in
Pennsylvania Protection and Advocacy, that case provides
it no support because the plaintiff there actually alleged
its own injury, whereas DRW did not. Pennsylvania Protec-
tion and Advocacy, Inc., 136 F. Supp.2d at 361 (“Plaintiff
states that it has spent ‘its time, money, and resources to
advocate for an end to the waiting list for community
services for Pennsylvanians with mental retardation, . . .
[and] to counsel and assist the families of individuals
with mental retardation who have been unable to access
services . . . .”) (citing plaintiff’s complaint). Indeed,
DRW’s allegations as recounted above are actually incon-
sistent with any attempt to seek relief on its own behalf.
Accordingly, we conclude that it did not meet the con-
stitutional requirements for standing to sue in its own
right.3
DRW also argues that it has associational standing to
bring suit on behalf of school-aged disabled children in
3
DRW also argues that its very existence as provided for in
Section 51.62 of the Wisconsin Statutes bestows standing to
bring suit on its own behalf. DRW supports this assertion by
pointing out that in order for Wisconsin to receive federal funds
for disabilities services, the Developmental Disabilities Act
requires that it “have in effect a system to protect and advocate
the rights of individuals with developmental disabilities,”
42 U.S.C. § 15043(a)(1), a mandate Wisconsin fulfilled by
enacting Section 51.62. However, DRW cites no authority
establishing that these statutes have any bearing on the con-
stitutional standing considerations, and we decline to give
them such effect. The requirement that a plaintiff allege an
injury in fact has as its source Article III of the Constitution.
No statutory regime can override a constitutional requirement
in order to repair insufficient allegations of injury.
8 No. 07-1755
Walworth County. An organization has associational
standing, and may bring suit on behalf of its members,
when (1) its members would otherwise have standing
to sue in their own right, (2) the interests it seeks to pro-
tect are germane to the organization’s purpose, and
(3) neither the claims asserted, nor the relief requested,
requires the participation of individual members in the
lawsuit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S.
333, 343 (1977). The third requirement does not derive
from the Constitution. Instead, it is a judicially imposed
limitation, United Food and Commercial Workers Union
Local 751 v. Brown Group, Inc., 517 U.S. 544, 556-57 (1996),
which may be overridden by Congress. Family & Children’s
Ctr., Inc. v. School City of Mishawaka, 13 F.3d 1052, 1059 (7th
Cir. 1994). The Board of Supervisors concedes both that
Congress eliminated the third requirement in enacting
the Developmental Disabilities Act, 42 U.S.C. § 15043(a),
and that the interests DRW seeks to protect fit within the
Act’s purpose. Accordingly, the dispute between the
parties regarding associational standing boils down to the
first factor set out in Hunt, namely whether any DRW
members have standing to sue in their own right.
The first Hunt factor satisfies Article III standing con-
cerns by “requiring an organization suing as representative
to include at least one member with standing to present,
in his or her own right, the claim (or the type of claim)
pleaded by the association.” United Food, 517 U.S. at 555.
This requirement, however, still allows for the member
on whose behalf the suit is filed to remain unnamed by
the organization. Doe v. Stincer, 175 F.3d 879, 882 (11th
Cir. 1999). Even taking that allowance into considera-
tion, we do not find any allegations made by DRW suf-
ficient to establish that any of its members have sus-
No. 07-1755 9
tained their own injury in fact, caused by the Board of
Supervisors’ conduct, and able to be redressed by a
favorable decision. Rather, DRW describes the high rates
of separate education in Walworth County, states that the
presence there of the Lakeland School is “a major factor”
contributing to those higher rates, and then alleges that
“the number of potential students with disabilities who
can enroll at Lakeland School will increase significantly”
upon the new school’s completion. Based on this “poten-
tial” enrollment increase and the funds that go to the
Lakeland School, DRW alleges that the Board of Super-
visors fails to educate disabled students in the most
integrated environment to the maximum extent appropri-
ate, and discriminates against these students based upon
their disability.
As noted above, we must take these allegations as true,
and draw the plausible inferences from them in DRW’s
favor. Levy, 510 F.3d at 764. Even employing this stand-
ard, however, we do not see how the allegations set
forth above establish that any DRW member has standing.
As an initial matter, no disabled child will be placed in the
Lakeland School simply because there is more room there.
This fact is even alluded to by DRW when it speaks of
increased enrollment as a “potential” outcome of enlarging
the Lakeland School. As pointed out by the Board of
Supervisors in its brief, placement of disabled students
takes place according to the detailed procedure set forth
in the Individuals with Disabilities Education Act, 20
U.S.C. § 1400, et seq. (“IDEA”). Under the IDEA, states
are responsible for providing “a free appropriate public
education” to disabled children. 20 U.S.C. § 1412(a)(1)(A).
They should seek to do this, however, in the “least re-
strictive environment,” meaning, “[t]o the maximum
10 No. 07-1755
extent appropriate, children with disabilities . . . [should
be] educated with children who are not disabled.” 20
U.S.C. § 1412(a)(5)(A).4 This placement is achieved by
devising an Individualized Education Program (“IEP”) for
each disabled child. 20 U.S.C. § 1412(a)(4). An IEP is
developed by an “IEP Team,” consisting of no less than
five people, made up of the child’s parent and a host
of educators. 20 U.S.C. § 1414(d)(B)(i)-(vii). If a parent
feels proper procedures were not followed in devising an
IEP, a challenge may be filed. 34 C.F.R. § 300.507(a)(1).5
Taking this process into account, we cannot see that any
student has sustained, or imminently will sustain, the
injury of not being educated in the least restrictive en-
vironment based simply upon the Board of Supervisors’
decision to fund construction of the new Lakeland
School facilities. Moreover, if disabled students are being
improperly placed, that injury may be redressed through
the statutory challenge process set forth above, not by
stopping construction of the new facility. This is particu-
larly so when the people of Walworth County, through
their elected representatives, not only decided to build
the new Lakeland School, but decided to fund its con-
struction to the tune of twenty-two million dollars.
Another reason DRW’s First Amended Complaint does
not establish standing for any of its members is that, as
4
The result of this directive is sometimes referred to as
“mainstreaming.”
5
It is noteworthy that DRW has chosen to avoid this tradi-
tional, albeit tedious, administrative path to challenging an
undesirable IEP. Instead, DRW attempts to bring about a
generalized “least restrictive environment” absent the assis-
tance, or alleged desire, of any individual child or parent.
No. 07-1755 11
stated by counsel for the Board of Supervisors at oral
argument, the Lakeland School is a popular institution. We
doubt the Board of Supervisors could allocate twenty-two
million dollars to it if it were not. The Board of Supervisors’
attorney indicated that the reason the Lakeland School
has so many students is that parents like it, and many
families move to Walworth County to take advantage of
the educational opportunities the Lakeland School presents
their children. While we do not weigh these assertions
against the allegations of DRW’s First Amended Com-
plaint, they make clear why simply funding an enlarged
Lakeland School does not give rise to a reasonable infer-
ence that disabled students are being injured by the Board
of Supervisors. If there are students who have actually
suffered an injury because of the Board of Supervisors’
decision, they remain free to bring suit on their own be-
half, or represented by DRW. We conclude, however,
that DRW’s First Amended Complaint does not allege
the current existence of any such student.
Finally, an organization known as the National Dis-
ability Rights Network (“NDRN”) filed an Amicus Curiae
brief in support of DRW wherein it argued that a cir-
cuit split exists as to whether an association can bring
suit on behalf of unnamed individuals. Specifically,
NDRN asserts that the Ninth and Eleventh Circuits, with
whom they urge us to join, allow an association to bring
such a suit, see Or. Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th
Cir. 2002) and Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999),
while the Fifth Circuit disallows it. See Ass’n for Retarded
Citizens v. Dallas County, 19 F.3d 241 (5th Cir. 1994). Our
review of these cases, however, reveals that the only issue
on which they split is whether disabled persons are
“members” of disability rights advocacy groups for the
12 No. 07-1755
purpose of the first Hunt element. Compare Ass’n for
Retarded Citizens, 19 F.3d at 244 (concluding that the
advocacy group does not have members on whose behalf
it can bring suit), with Or. Advocacy Ctr., 322 F.3d at 1110
(concluding that disabled persons are the functional
equivalent of members for the purpose of an associational
standing analysis) and Doe, 175 F.3d at 885 (same). That
issue is not present in this case. In fact, the Board of
Supervisors expressly concedes that DRW is an advocacy
group able to bring suit on behalf of its members. Nobody
denies that DRW has a role to play as an advocate on
behalf of the disabled. However, advocacy is only appro-
priately—and constitutionally—undertaken on behalf of
another when that other has suffered an injury. Because
DRW’s First Amended Complaint does not identify any
Walworth County disabled student with standing to
bring suit based on the Board of Supervisors’ conduct,
DRW does not satisfy the first requirement of Hunt,
and therefore has not established associational standing.
III.
We conclude that DRW has not alleged any injury in
fact to itself based upon the conduct of the Board of
Supervisors, and therefore has not established that it
has standing to sue on its own behalf. Additionally,
DRW has not identified any member with standing to
sue, and therefore has not established that it has associa-
tional standing to sue on behalf of its members. Accord-
ingly, we AFFIRM the district court’s dismissal of DRW’s
suit.
USCA-02-C-0072—4-14-08