Wilson v. Glenwood Intermountain Properties, Inc., 95-4056

• Decision Date: 21 October 1996
• Docket Number: No. 95-4056,95-4056
• Parties: 113 Ed. Law Rep. 551 Mark WILSON and Anne Walker, Plaintiffs-Appellants, v. GLENWOOD INTERMOUNTAIN PROPERTIES, INC.; Branbury Park, Inc.; Data-Prop Management, Inc.; D. Roger Conrad, Bonnie L. Conrad; David E. Nagel, Barbara K. Nagel; Kent S. Gilbert; Lana R. Gilbert; Tapp/Sorensen Partnership; Elaine M. Miller; John E. Knudsen, Glen C. Rowland; Kelly W. Romney Partnership, Defendants-Appellees. Brigham Young University, a Utah corporation, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 590

98 F.3d 590

113 Ed. Law Rep. 551

Mark WILSON and Anne Walker, Plaintiffs-Appellants, v. GLENWOOD INTERMOUNTAIN PROPERTIES, INC.; Branbury Park Inc.; Data-Prop Management, Inc.; D. Roger Conrad, Bonnie L. Conrad; David E. Nagel, Barbara K. Nagel; Kent S Gilbert; Lana R. Gilbert; Tapp/Sorensen Partnership Elaine M. Miller; John E. Knudsen, Glen C. Rowland; Kelly W. Romney Partnership, Defendants-Appellees Brigham Young University, a Utah corporation, Intervenor-Appellee.

No. 95-4056.

United States Court of Appeals, Tenth Circuit.

Oct. 21, 1996.

Bruce Plenk (Jensie L. Anderson, with him on the brief), of American Civil Liberties Union of Utah Foundation, Inc., Salt Lake City, UT, for plaintiffs-appellants.

Rex E. Lee, of Sidley & Austin, of Los Angeles, CA (Mary Anne Q. Wood and Kathryn O. Balmforth, of Wood, Quinn & Crapo, L.C., Salt Lake City, UT; Richard M. Hymas of Nielsen and Senior, Salt Lake City, UT; Eugene H. Bramhall and David B. Thomas, of Brigham Young University, Salt Lake City, UT, with him on the brief), for intervenor-appellees.

Before BALDOCK, EBEL, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs Mark Wilson and Anne Walker appeal from the district court's summary judgment order denying their claims that the defendant landlords violated the Fair Housing Act (42 U.S.C. §§ 3601-3631) by providing and advertising gender-segregated housing to students of Brigham Young University (BYU). Although the district court reached the merits after finding plaintiffs had standing to assert their gender discrimination claims, we conclude they do not have standing, vacate the district court's judgment on those claims, and remand with directions to dismiss plaintiffs' gender discrimination claims for lack of jurisdiction.

Brigham Young University requires unmarried students under 25 years of age to live in BYU-approved housing either on or off campus. All of the defendant landlords have been certified by BYU to provide BYU off-campus housing to unmarried BYU students. As a part of that certification, defendant landlords agreed (1) to rent their BYU-approved units only to unmarried BYU students, married BYU students, or student families; (2) to segregate students from non-students by buildings or wings of buildings if they are certified to rent to both students and non-students; (3) to rent only to unmarried male or unmarried female students or to separate unmarried male students from unmarried female students by buildings or wings of buildings if the landlords are certified to rent to both male and female BYU students; and (4) to use the most recent version of the BYU-approved Student-Landlord Rental Agreement with all of their student renters. All of the defendant landlords own, operate, and advertise gender-segregated apartment buildings and wings for unmarried BYU students. Apartments in those buildings and wings are rented only to students, and none of the landlords segregate non-student renters by gender.

Wilson, an unmarried man under 25 years old who was not a BYU student, was denied apartments in off-campus BYU-approved student housing that was reserved for women. Walker, an unmarried woman under 25 years old who was not a BYU student, was denied apartments in off-campus BYU-approved student housing that was reserved for men. Plaintiffs brought this action against the defendant landlords for declaratory and injunctive relief, alleging defendants violated the Fair Housing Act by discriminating on the basis of religion, family status, and gender. BYU intervened as a defendant to defend its off-campus housing program.

The district court entered summary judgment in favor of defendants on all claims. On appeal, plaintiffs challenge only the denial of their gender discrimination claims. On these claims, the district court ruled that plaintiffs failed to establish a prima facie case of gender discrimination because, as non-students, they were not otherwise qualified for apartments reserved for students. The court also ruled that in any case defendants' practices were permitted under Title IX, 20 U.S.C. § 1686, which provides in pertinent part: "[N]othing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes." As regards defendants' advertising of gender-segregated student apartments, the district court held if such gender segregation is lawful, then truthful advertising which describes that practice cannot be unlawful.

We do not reach the merits because we conclude that plaintiffs lacked standing to bring the gender discrimination claims. Standing is a jurisdictional issue that may be raised by the court at any time. See National Organization for Women v. Scheidler, 510 U.S. 249, 254-55, 114 S.Ct. 798, 802, 127 L.Ed.2d 99 (1994); FW/PBS v. City of Dallas, 493 U.S. 215, 229-32, 110 S.Ct. 596, 606-08, 107 L.Ed.2d 603 (1990). The district court's finding that defendants conceded plaintiffs had standing to raise their gender discrimination claims is not determinative; parties cannot confer subject matter jurisdiction on the courts by agreement. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.); cert. denied --- U.S. ----, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995) (amount in controversy); Barhold v. Rodriguez, 863 F.2d 233, 234 (2d Cir.1988) (standing). We review the standing issue de novo because standing is a question of law. See Mountain Side Mobile Estates Partnership v. Secretary of Housing and Urban Development, 56 F.3d 1243, 1249 (10th Cir.1995).

Standing under the Fair Housing Act is as broad as permitted by Article III of the Constitution. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1120-21, 71 L.Ed.2d 214 (1982); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 366-67, 34 L.Ed.2d 415 (1972). To satisfy the Article III standing requirement, a party must establish three elements: (1) injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) likelihood that the injury will be redressed by a favorable decision. Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993). Plaintiffs have not shown the required causal relationship or the likelihood that a favorable decision would redress the injury.

Plaintiffs claiming discrimination in the denial of a benefit need not show they would have obtained the benefit in the absence of the discrimination to establish standing; it is enough to show the discrimination deprived them of the ability to compete for the benefit on an equal footing. Northeastern Florida, 508 U.S. at 666-68, 113 S.Ct. at 2303-04. See Adarand Constructors v. Pena, --- U.S. ----, ---- - ----, 115 S.Ct. 2097, 2104-05, 132 L.Ed.2d 158 (1995). However, a person who fails to satisfy lawful, nondiscriminatory requirements or qualifications for the benefit lacks standing to raise claims of discrimination in the denial of the benefit. The discrimination does not deprive the person of the ability to compete because he or she is disqualified from competing for other, legitimate reasons. A favorable decision on the discrimination claim could not redress the injury because the person would still be disqualified from competing. See Brunet v. City of Columbus, 1 F.3d 390, 398-99 (6th Cir.1993), cert. denied 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994) (male applicants who ranked too low to be eligible for hiring as firefighters lacked standing to challenge hiring of female applicants out of rank order); Donaghy v. City of Omaha, 933 F.2d 1448, 1455 (8th Cir.1991), cert. denied 502 U.S. 1059, 112 S.Ct. 938, 117 L.Ed.2d 109 (1992) (white applicant for promotion to police lieutenant had standing to challenge promotion of minority officers out of rank order only after he would have ranked high enough to be considered for promotion if strict rank order had been followed); Bashir v. Supreme Court of Ohio, 652 F.2d 641 (6th Cir.1981) (Pakistani attorney who sought admission to Ohio bar by motion lacked standing to challenge requirement of U.S. citizenship because he failed to satisfy requirement of admission to bar in another state); Doherty v. Rutgers School of Law-Newark, 651 F.2d 893, 899-902 (3d Cir.1981) (unsuccessful white applicant for admission to law school lacked standing to challenge minority admissions program because he was not qualified for admission even in the absence of the minority admissions program). See also Harris v. McRae, 448 U.S. 297, 320, 100 S.Ct. 2671, 2689-90, 65 L.Ed.2d 784 (1980) (women who were neither pregnant nor eligible for Medicaid lacked standing to bring free exercise of religion challenge to legislation limiting use of federal Medicaid funds to pay for abortions); Fulani v. Bentsen, 35 F.3d 49, 54 (2d Cir.1994) (presidential candidate excluded from televised debate co-sponsored by League of Women Voters and television network lacked standing to challenge League's tax-exempt status and eligibility to sponsor debate because network would have excluded candidate even if League lost tax-exempt status and eligibility as sponsor). But see Price v. City of Charlotte, 93 F.3d 1241, 1245-48 (4th Cir.1996) (white police officers who would not have been promoted even if city had not promoted lower-ranked minority officers had standing to seek damages for emotional distress over racial preference). "[A] mere abstract denial of equal opportunity does not constitute injury in fact. A general denial of equal opportunity does not confer standing on a particular individual unless that individual would have had access to the benefit at stake in the absence of discrimination." N.A.A.C.P., Boston Chapter v. Harris, 607 F.2d 514, 520 (1st Cir.1979). Discrimination cannot be the cause of injury to an applicant who could...