The opinion of the court was delivered by: LOUIS OBERDORFER, Senior District Judge
This case involves constitutional challenges to various
conditions imposed by the District of Columbia's Board of Zoning
Adjustment ("the Board") on the development of George Washington
University's campus in the District's Foggy Bottom and West End
neighborhoods ("Foggy Bottom"). Currently pending is
defendants'*fn1 motion for summary judgment on four of the
University' claims: unconstitutional taking/unconstitutional
conditions (Claims I and II); denial of equal protection (Claim
VI); and violation of the University students' right to equal
protection and due process (Claim VIII). As explained below, the
D.C. Circuit's opinion requires that defendants' motion should be
granted on all four counts.
Pursuant to D.C. zoning laws, in 1999 the University submitted
to the Board for its review and approval a "campus plan" for the
years 2000-2010. The Board approved the plan, but issued an Order ("Initial Order") imposing several conditions, including
particularly Condition 9. This condition imposed a cap on student
enrollment to the number admitted as of February 13, 2001, and it
imposed this cap after the University had already admitted a
substantial number of its students for the immediately
forthcoming semester. See George Washington Univ. v. District
of Columbia, et al., 148 F. Supp. 2d 15, 16 (D.D.C. 2001). The
Initial Order also imposed a sanction on the University if it
failed to meet its requirement to house 70% of its students
on-campus, by barring the University from building any
non-residential buildings on campus while out of compliance.
Id. at 18. The University filed suit, seeking to enjoin
enforcement of the Initial Order.
On June 15, 2001, I granted the University's motion for a
preliminary injunction, finding that the University was
substantially likely to succeed in demonstrating that Condition 9
of the Initial Order was so arbitrary and capricious as to
violate the University's right to substantive due process. Id.
On January 23, 2002, the Board issued its corrected Final
Order, which differed in some respects from the Initial Order.
Whereas the Initial Order required the University to house 70% of
its undergraduates and capped student enrollment to the number
enrolled as of February 13, 2001, the Final Order imposed a "soft
cap" of housing 5,600 (or 70%) of its 8,000 undergraduates, and
additionally required the University to house every undergraduate
above the 8,000 threshold either on campus or outside Foggy Bottom.*fn3 The Final Order also
provided a six-month grace period for the University to comply.
In addition, it allowed the University to house the students
either on-campus or outside of Foggy Bottom until August 2006.
Thereafter, it was required to use only on-campus housing.
After the Board issued its Final Order, the University amended
and supplemented its complaint. The parties then cross-moved for
summary judgment on all claims, including particularly Claims III
(substantive due process) and XII (substantive due process and
separation of powers). An April 12, 2002 Order granted summary
judgment in favor of the University on Claims III and XII
concluding that the Board Order violated the University's due
process rights on the theory that, while the government's purpose
was legitimate, the government's regulations were not rationally
related to its legitimate purpose. George Washington Univ. v.
District of Columbia, 2002 U.S. Dist. LEXIS 26729, at *17-18,
26-27 (D.D.C. 2002);*fn4 see id. at *24 ("`the
touchstone of due process is protection of the individual against
arbitrary action of government, whether the fault lies in a
denial of fundamental procedural fairness, or in the exercise of
power without any reasonable justification in the service of a
legitimate governmental objective.'") (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)) (emphasis
added) (internal quotations omitted); id. ("legislative acts violate
the guarantee of substantive due process if they are `arbitrary
and irrational,' without more.") (quoting, inter alia, Eastern
Enters. v. Apfel, 524 U.S. 498, 537 (1998)). Both parties
II. The D.C. Circuit's Opinion
The court of appeals affirmed in part and reversed in part, and
held that the Final Order was not unconstitutional in all
respects. George Washington Univ. v. District of Columbia,
318 F.3d 203 (D.C. Cir. 2003). Although the court's decision did not
directly address the remaining claims specified above (Claims I,
II, VI, and VIII) (see supra slip op. at 1), the clear
implication of the court's ruling is that the University's
remaining claims cannot succeed.
In its ruling, the court noted that the Final Order found that
the property purchased by the University in the Foggy Bottom
neighborhood for undergraduate housing, and undergraduates'
"informal" off-campus housing, "threatened the `livability and
residential character' of the Foggy Bottom neighborhood." Id.
at 206. The court concluded that "on average [students] pose a
risk of behavior different from that generally preferred by
non-student residents and legally relevant." Id. at 209.
The University argued that the on-campus or outside Foggy
Bottom housing requirements rendered the University's off-campus
student housing in Foggy Bottom "duplicative," which was
plainly irrational. The court disagreed, concluding that "nothing
in the transitional housing plan forces the University to give up
its off-campus Foggy Bottom dorms or prevents it from continuing
to house students there. If it chooses, it can continue supplying
that housing in addition to the 5600 beds required by
Conditions 9(a)-(c)." Id. at 210 (emphasis in original).
The court then turned to Condition 9(e) of the Final Order,
which prohibited "the issuance of any new `permit to construct or occupy buildings for
nonresidential use on campus' whenever `a semiannual report
reveals that [the University] is not in compliance' with the
conditions of [the Final] Order." Id. at 211. The court held
without extensive discussion that this condition "clearly
serves two important functions that advance the District's
goals." Id. This condition "strengthens the University's
incentive to comply with the housing provisions" and it generally
"keeps housing and non-housing growth proceeding in parallel."
The court also held that Condition 10 which required freshmen
and sophomores to live on campus "to the extent such housing is
available" was not problematic, in part because the University
proposed it as part of its own plan (although it was tied to
another proposal that the Board rejected). Id. Morever, "the
condition seems readily to meet the latitudinarian standards of
substantive due process. A city might reasonably consider the
youngest college students to be the ones most likely to disturb
residents in the surrounding communities, as well as most likely
to need whatever shreds of parietal rules may subsist on campus."
Finally, the court affirmed that the District's zoning
regulations were not unconstitutional as violative of the equal
protection element of Fifth Amendment due process rights. Because
universities are not a protected class, the legislation need only
"classify the persons it affects in a manner rationally related
to legitimate governmental objectives." Id. at 212 (citation
and internal quotations omitted). The court found that the
regulations meet this standard: "As universities are larger, make
more intensive use of their land, and have greater spillover
effects on neighboring communities ...