reporting mechanisms and requirements). The Control Board retains the same ultimate supervisory authority over its delegate, the Board of Trustees, as the Board of Education had over its delegatee, the Superintendent of Schools. That is, if the Control Board is not satisfied with the performance of the Board of Trustees in any or all of the areas over which it gave it control, the Control Board can divest the Board of Trustees of any or all of the powers granted by the November Order. Thus, the Control Board is, in fact, exercising its supervisory authority in the same way that the Board of Education did prior to the November Order. Since, pursuant to FRMAA section 207(d), the Control Board is "standing in the shoes" of the Board of Education, its action is valid.
For all of these reasons, the Court concludes that the Control Board had the statutory authority to issue the November Order.
V. The November Order Did Not Violate the First Amendment Rights of Plaintiffs in their Official Capacities as School Board Members
Plaintiffs challenge the November Order as unconstitutionally infringing their right to vote on matters of public interest as they see fit. See Clarke v. United States, 280 U.S. App. D.C. 387, 886 F.2d 404, 411-12 (D.C. Cir. 1989), vacated as moot, 915 F.2d 699 (1990) (en banc); Stella v. Kelley, 63 F.3d 71, 75 (1st Cir. 1995). Plaintiffs' Amended Complaint asserts that "the Control Board has forced and intends in the future to force the members of the Board of Education" to vote in favor of delegating their authority to the Board of Trustees and the CEO-Superintendent. Compl. P 20. However, Plaintiffs conceded at oral argument that the November Order took effect without any action being required of the Board of Education. Thus, Plaintiffs have not been "forced" to vote in violation of their First Amendment rights.
Plaintiffs complain that they will be harmed if the Control Board requires them to vote to delegate any of their remaining authority (i.e., to act as a chartering authority). Defendant argues that Plaintiffs' claim is not yet ripe, that is, that it is premature because Defendant has not "forced" Plaintiffs to do anything.
The judicial power of the United States extends only to actual cases or controversies. U.S. Const. art. III, § 1. Ripeness is a justiciability doctrine that gives meaning to Article III's case or controversy requirement. See Navegar Inc. v. United States, 322 U.S. App. D.C. 288, 103 F.3d 994, 997-98 (D.C. Cir. 1997); National Treasury Employees Union v. United States, 322 U.S. App. D.C. 135, 101 F.3d 1423, 1427 (D.C. Cir. 1996) ("NTEU "). Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for the court's review. Abbott Labs. v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967).
Ripeness requires "that injury in fact be certainly impending." NTEU, 101 F.3d at 1427 (citations omitted). To establish injury in fact, a plaintiff cannot rely on an injury that is conjectural, hypothetical, speculative or abstract. Id. (citations and quotations omitted). There is simply no evidence on this record that Plaintiffs have suffered, or are certain to suffer, any injury to their First Amendment rights.
Plaintiffs cite Washington Serv. Contractors Coalition v. District of Columbia, 858 F. Supp. 1219, 1224 n.8 (D.D.C. 1994), vacated on other grounds and remanded, 311 U.S. App. D.C. 407, 54 F.3d 811 (D.C. Cir. 1995), for the proposition that they need not allege imminent harm to obtain declaratory relief if the "probability of the future event occurring is real and substantial and of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Id. However, on this record, Plaintiffs cannot even meet that standard, which the courts generally apply in a criminal, rather than civil, context. Such a challenge requires that there be a significant threat of enforcement against the person challenging the statute. See Navegar, 103 F.3d at 998-99 (enumerating cases where pre-enforcement challenges have been allowed).
Here, there is no credible threat that such an action by the Control Board is even on the horizon. The Control Board's November Order was self-executing. There is no reason to believe that the Control Board would not follow the same procedure in the future, and, therefore, would neither force nor require the members of the Board of Education to vote contrary to their beliefs.
For these reasons, the Court concludes that the First Amendment claim raised by Plaintiffs in their official capacities is premature, and therefore must be denied.
VI. The November Order Did Not Violate the First or Fifth Amendment Rights of Plaintiffs' in their Individual Capacities as District of Columbia Voters
Plaintiffs challenge the November Order on First and Fifth Amendment grounds, claiming that the action has impermissibly interfered with their voting rights. These challenges are closely intertwined and will be addressed together. Plaintiffs' argument is, essentially, as follows. Plaintiffs themselves are individual voters. The members of the Board of Education for whom they voted now have less power than they had before issuance of the November Order. Thus, Plaintiffs' individual votes have been unconstitutionally "diluted".
The Supreme Court has clearly held that the Constitution does not require that a school board be elected. Sailors v. Board of Education, 387 U.S. 105, 108, 110-111, 18 L. Ed. 2d 650, 87 S. Ct. 1549 (1967). That principle had already been expounded with respect to the District of Columbia when the Board of Education was still appointed by the Supreme Court for the District of Columbia. Hobson v. Hansen, 265 F. Supp. 902, 918 (D.D.C. 1967) (three-judge court). In Hansen, the court specifically held that none of the guarantees of personal liberty were infringed by the appointment, rather than the election, of the Board of Education. Id.
Once the right to vote is granted, the Constitution requires that each citizen be able "to participate in elections on an equal basis with other citizens in the jurisdiction." Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10, 72 L. Ed. 2d 628, 102 S. Ct. 2194 (1982). Here, Plaintiffs have not been denied the right to vote vis-a-vis other residents of the District; nor have they been denied the right to vote because of an impermissible reason (such as race or gender); nor have they been denied outright the right to vote. There is simply no precedent holding that the First Amendment is violated if the powers and responsibilities of an elected office are changed or diminished. Thus, Plaintiffs have no cognizable First Amendment claim that the Control Board has impermissibly infringed their individual voting rights.
With respect to Plaintiffs' Fifth Amendment claim, it is certainly true that the right to vote is a fundamental right protected by the Constitution, Reynolds v. Sims, 377 U.S. 533, 554, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964), and that courts are bound to protect such fundamental constitutional rights. See Franz v. United States, 229 U.S. App. D.C. 396, 712 F.2d 1428, 1438 (1983) (D.C. Cir. 1987) (Bork, J., concurring in part and dissenting in part). Plaintiffs contend that, since Congress granted District of Columbia voters the right to elect the Board of Education, that right cannot be abridged in any way. The distinction, again, that Plaintiffs seem to overlook, is that the Control Board has not taken away or in any way abridged their right to vote for members of the Board of Education.
Plaintiffs' real argument is that the Board of Education for which they are now voting is a body with different powers than the one that they used to elect. However, Plaintiffs can cite to no case which stands for the proposition that a change in the powers of the body for which they are voting affects their right to vote in a constitutionally proscribed manner.
Hansen, 265 F. Supp. at 917. Moreover, since the Fifth Amendment does not require that a school board even be elected, see Sailors, 387 U.S. at 108, 100-111; Hansen, 265 F. Supp. at 918, it logically follows that it does not require that an elected school board have any particular powers. This is especially true in the District of Columbia where the creation of the Board of Education, and its manner of selection, falls squarely within the plenary legislative power exercised by Congress over our nation's capital.
Plaintiffs have presented a serious substantive challenge to the actions of the Control Board. The votes cast for the members of the Board of Education by Plaintiffs, as well as by all other voters in the District of Columbia, may well have less substance than they did before the Control Board promulgated the November Order. However, Congress has the power to create the various governmental bodies in the District of Columbia, to alter their structure and authority, and even to abolish them entirely. Plaintiffs, as well as all District of Columbia residents, may feel profoundly discomfited by the November Order and its implications for "Home Rule" in the District of Columbia, but the Plaintiffs' challenge to the recent changes in our local political process is not constitutionally cognizable under existing case law.
For the reasons discussed above, Defendant's Motion to Dismiss  is granted and Plaintiffs' Motion for Summary Judgment  is denied.
An Order will issue with this Opinion.
April 30, 1997
United States District Judge
This matter is before the Court on Defendant's Motion to Dismiss [# 10] and Plaintiffs' Motion for Summary Judgment [# 11]. For the reasons discussed in the accompanying Memorandum Opinion, it is this 30th day of April, 1997, hereby
ORDERED, that Defendant's Motion to Dismiss  is granted ; and it is further
ORDERED, and Plaintiffs' Motion for Summary Judgment  is denied.
United States District Judge