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September 16, 2005.

THE DISTRICT OF COLUMBIA, et al., Defendants.

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.

I. Procedural History

  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. at 17.*fn2

  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 appealed.

  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." Id.

  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." Id.

  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 ...

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