NAACP, INC. v. Florida Bd. of Regents

• Decision Date: 26 February 2002
• Docket Number: No. 1D00-3138.,1D00-3138.
• Citation: 822 So.2d 1
• Parties: NAACP, INC., through its Florida Conference of Branches of NAACP, Mattie Garvin, on her own behalf and as mother of Keith Garvin and Keith Garvin, Appellants/Cross-Appellees, v. FLORIDA BOARD OF REGENTS and the State Board of Education, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

822 So.2d 1

NAACP, INC., through its Florida Conference of Branches of NAACP, Mattie Garvin, on her own behalf and as mother of Keith Garvin and Keith Garvin, Appellants/Cross-Appellees, v. FLORIDA BOARD OF REGENTS and the State Board of Education, Appellees/Cross-Appellants.

No. 1D00-3138.

District Court of Appeal of Florida, First District.

February 26, 2002.

Opinion on Limited Grant of Certification July 26, 2002.

John D.C. Newton, II, and Daniel H. Thompson of Berger Singerman, Tallahassee; Mitchell W. Berger of Berger Singerman, Fort Lauderdale, for Appellants/Cross-Appellees.

Carol A. Licko of Hogan & Hartson, L.L.P., Miami, for Appellees/Cross-Appellants.

WEBSTER, J.,

NAACP, Inc., through its Florida Conference of Branches of NAACP, Mattie Garvin, individually and as mother of Keith Garvin, and Keith Garvin, individually, seek review of a final order entered by an administrative law judge (ALJ) in a rule challenge proceeding. In that order, the ALJ rejected appellants' challenge to all but one of several rule amendments adopted by the Florida Board of Regents and approved by the State Board of Education in response to a request made by the Governor in an executive order "that the Board of Regents implement a policy prohibiting the use of racial or gender setasides, preferences or quotas in admissions to all Florida institutions of Higher Education." By cross-appeal, the Board of Regents and the State Board of Education seek review of those portions of the order holding that appellants had standing to bring the rule challenge, and that the amendment that repealed Florida Administrative Code Rule 6C-6.001(10)(e)6 was "an invalid exercise of delegated legislative authority." We conclude that no competent, substantial evidence was presented to establish that any of the appellants had standing to bring the rule challenge. Accordingly, we reverse, and remand with directions that the ALJ dismiss the rule challenge for lack of standing.

I.

On November 9, 1999, Governor Bush signed Executive Order 99-281, which outlined his "One Florida Initiative." Section 3 of that Executive Order was titled "Non Discrimination in Higher Education." In paragraph (b) of that section, the Governor "request[ed] that the Board of Regents implement a policy prohibiting the use of racial or gender set-asides, preferences or quotas in admissions to all Florida institutions of Higher Education, effective immediately." On February 17 and 18, 2000, in an effort to comply with the Governor's request, the Board of Regents adopted amendments to its rules setting general requirements for student admissions (Fla. Admin. Code R. 6C-6.001), admission requirements for entering freshmen (Fla. Admin. Code R. 6C-6.002), and admission requirements for entering or transferring graduate and professional students (Fla. Admin. Code R. 6C-6.003). The Board of Education approved the amendments on February 22, 2000.

Appellants immediately filed a petition pursuant to section 120.56, Florida Statutes (1999), challenging seven of the amendments that modified the existing rules by (1) reaffirming the state's commitment to increasing diversity in university admissions, but repealing language stating that universities may use alternative admission methods to increase enrollment of a diverse student body; (2) establishing the "Talented 20 Program" which guaranteed university admission to students in the top 20 percent of their high school graduating class as determined by the Florida Department of Education; (3) prohibiting the use of racial and gender preferences in the admissions process, but allowing for the consideration of various race and gender-neutral factors as part of an applicant's "profile assessment"; and (4) repealing the rule providing for alternate admissions to limited access programs, i.e., upper level programs with competitive admissions due to limited space or resources. They claimed that (1) all seven amendments were "an invalid exercise of delegated legislative authority" because there was no specific statutory authority authorizing the Board of Regents to prohibit consideration of factors that a university deemed relevant in the admissions process (such as race, national origin, or gender), to limit alternative admissions, or to guarantee admissions to a defined class of students; (2) the amendment to rule 6C-6.002(5), which provided that class rankings under the "Talented 20 Program" would be determined by the Department of Education, was "arbitrary and capricious" because the Department of Education relied on class ranks provided by individual school districts, which used different ranking systems, pending development of a uniform methodology; and (3) the amendment to rule 6C-6.002(7), which guaranteed university admission to students in the top 20 percent of their high school graduating class, usurped the appropriations power of the legislature by committing the Board of Regents and the Board of Education to expend state funds prior to their appropriation by the legislature.

The Board of Regents and the Board of Education responded with a motion to dismiss for lack of standing. According to the motion, the allegations of the petition were legally insufficient to demonstrate that any of the appellants had standing, either individually or in a representative capacity, because they failed to demonstrate how any of them (or any of NAACP's members) would suffer any injury because of the amendments. Rather, according to the motion, the petition alleged nothing more than speculation regarding what might happen in the future.

Following a hearing on the motion to dismiss for lack of standing, the ALJ held that the petition's allegations were legally insufficient to demonstrate standing as to NAACP in its individual capacity and standing of the Garvins to challenge amendments to rule 6C-6.003, which related to admissions to graduate and professional schools. (Appellants do not challenge those rulings on appeal.) The ALJ denied the motion in all other respects, holding that the allegations were otherwise legally sufficient to demonstrate standing.

A final hearing, at which evidence was presented, was held on April 24-26, 2000. On July 12, 2000, the ALJ entered his final order. In that order, he held that appellants had presented sufficient evidence to establish NAACP's "associational standing... to represent [its] members as persons substantially affected by the proposed amendments," and that the Garvins were "substantially affected by the proposed amendments to [r]ules 6C-6.001 and 6C-6.002." Regarding the merits of the rule challenge, the ALJ held that the repeal of rule 6C-6.001(10)(e)6 (which provided that, "[w]here necessary to achieve established equal access enrollment goals, up to ten percent of the students may be admitted to a limited access program with different criteria") was "an invalid exercise of delegated legislative authority"; but that all of the other challenged amendments were valid. This appeal and cross-appeal follow.

II.

Standing to challenge proposed or existing administrative rules is governed by statute in Florida. Section 120.56(1)(a), Florida Statutes (1999), states that only those who are "substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." To demonstrate that one is or will be "substantially affected by a rule or a proposed rule," one must establish both that application of the rule will result in "a real and sufficiently immediate injury in fact" and that "the alleged interest is arguably within the zone of interest to be protected or regulated." See, e.g., Lanoue v. Fla. Dep't of Law Enforcement, 751 So.2d 94, 96 (Fla. 1st DCA 1999)

; Ward v. Bd. of Trs. of Internal Improvement Trust Fund, 651 So.2d 1236, 1237 (Fla. 4th DCA 1995); All Risk Corp. of Fla. v. State Dep't of Labor & Employment Sec., 413 So.2d 1200, 1202 (Fla. 1st DCA 1982); Fla. Dep't of Offender Rehab. v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). An injury is not "real and sufficiently immediate" if the likelihood of its occurrence rests upon speculation or conjecture. See, e.g., Ward, 651 So.2d at 1237; Jerry, 353 So.2d at 1236.

A.

In Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351, 353-54 (Fla.1982), the court held that trade or professional associations have standing in certain circumstances to challenge, pursuant to section 120.56(1), Florida Statutes, an agency rule on behalf of their members:

To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged rule. Further, the subject matter of the rule must be within the association's general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members.

Without discussing the justification for doing so, we have previously extended this concept of "associational standing" to associations other than trade or professional associations. See, e.g., Friends of the Everglades, Inc. v. Bd. of Trs. of Internal Improvement Trust Fund, 595 So.2d 186 (Fla. 1st DCA 1992)

; Farmworker Rights Org., Inc. v. State Dep't of Health & Rehab. Servs., 430 So.2d 1 (Fla. 1st DCA 1983). As no party to this appeal has questioned those decisions, we assume (without deciding) that the assumption made in them was correct, and that NAACP qualifies as an association for purposes of Florida Home Builders though it is not a trade or professional association.

The ALJ concluded that NAACP had "associational standing" to represent its members because "significant numbers of middle or high school students in [its] Florida Youth Councils and college students in [its] Florida College...