The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Save Our Schools -- Southeast and Northeast ("SOS"), a community-based nonprofit association, and seven of its individual members, bring this action alleging that Two Rivers charter school and the District defendants*fn1 violated the Fifth Amendment's Equal Protection principles. Defendants have moved for summary judgment, asserting that: (1) plaintiffs do not have standing to prosecute this suit because they have not demonstrated injury; (2) there is no evidence that any defendant acted with discriminatory intent in violation of Equal Protection principles; and (3) to the extent that plaintiffs assert that the District defendants conspired with Two Rivers, plaintiffs have failed to put forth any evidence of a conspiracy [#79, 80, 81]. Upon consideration of the motions, the opposition thereto, and oral argument of counsel, the court concludes that defendants' motions must be granted because plaintiffs do not have standing to pursue this action.
A full explanation of the background of this action may be found in this court's previous Memorandum Opinion and Order, Save Our Sch. -- Se. & Ne. v. D.C. Bd. of Educ., 2006 WL 1827654 (D.D.C. July 3, 2006), which resolved defendants' motions to dismiss. Insofar as is presently pertinent, it is sufficient to recite that plaintiffs allege that Two Rivers was founded by affluent White families who felt that the District of Columbia's public school system ("DCPS") was "too black." Animated by their feeling regarding the racial composition of DCPS, the founders of Two Rivers, plaintiffs assert, sought to limit the number of enrolled Black students at Two Rivers by engaging in discriminatory outreach and recruitment methods, such as by focusing its recruitment in neighborhoods with high concentrations of White and Latino residents and ignoring neighborhoods with high concentrations of Black residents. Plaintiffs also contend that the "inherent structure" of Two Rivers operated to limit the number of enrolled Black students.*fn2 As for the District defendants, plaintiffs allege that they were aware of Two Rivers' discrimination, but nonetheless provided governmental support to the school, such as by helping Two Rivers find space in which it could operate.
As a threshold matter, the court must address the question of whether plaintiffs have standing to pursue this action. Lance v. Coffman, 127 S.Ct. 1194, 1196 (2007) (stating that "[f]ederal courts must determine that they have jurisdiction before proceeding to the merits"). The constitutional requirement of standing has three elements: (1) "injury in fact," which is "a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical"; (2) "causation," a "fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant"; and (3) "redressability," a "likelihood that the requested relief will redress the alleged injury." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998) (internal citations and quotations omitted). At the summary judgment stage, plaintiffs cannot rest on "mere allegations" of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Rather, plaintiffs must demonstrate standing by setting forth "specific facts" by affidavit or other evidence. Id.
As has been noted, defendants previously moved to dismiss this action on several grounds, including their assertion that plaintiffs lack standing. In ruling upon defendants' motions, the court found that plaintiffs' allegations of standing, while conclusory, were sufficient to survive a motion to dismiss. The court determined that plaintiffs "adequately alleged that they were injured by the redirection of funds and resources from their schools to Two Rivers." Save Our Sch., 2006 WL 1827654, at *5. The court, however, cautioned that "[p]laintiffs . . . retain the burden of presenting, during the later stages of this litigation, evidence to establish that they have been injured in fact by defendants' alleged support of Two Rivers." Id. at n.10.
Defendants now assert that plaintiffs have failed to come forward with evidence of injury sufficient to survive summary judgment. Plaintiffs, of course, disagree. Plaintiffs also contend that the recent Supreme Court case, Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S.Ct. 2738 (2007) ("Parents Involved"), demonstrates that they have standing. Lastly, plaintiffs attempt to re-assert their claim that Two Rivers' admissions policy is discriminatory, which this court previously dismissed for lack of standing.*fn3 Plaintiffs' arguments are without merit.
A. Failure to Demonstrate Injury
Defendants contend that plaintiffs do not have standing because they have not demonstrated that they have suffered an injury. To demonstrate injury, defendants assert, plaintiffs must show that their children attend a non-charter school that lost enrollment to Two Rivers (causing a decline in funds allocated to the non-charter school).*fn4 Defendants contend that plaintiffs do not present any evidence that their children attend a non-charter school that lost enrollment to Two Rivers.*fn5
Plaintiffs rejoin that they do show that non-charter schools attended by their children experienced a decline in enrollment due to students leaving for Two Rivers. According to plaintiffs, Two Rivers' own documents show that eight students came from the Peabody School and four from the Watkins School. Plaintiffs further argue that Two Rivers' own documents show that twenty-four students came from other schools on or near Capitol Hill, including Brent, Gibbs, Miner, Noyes, Peabody, Watkins, Wilkerson, and Yorktown. Plaintiffs contend that SOS's members are all represented at these schools, which lost enrollment to Two Rivers.
Defendants' position has merit. Although plaintiffs assert, in their Opposition brief, that SOS's members are all represented at schools that lost students to Two Rivers, plaintiffs fail to cite any exhibits or affidavits to support their assertion. At the summary judgment stage, plaintiffs must present specific facts to demonstrate injury; plaintiffs cannot rely on mere allegations. Lujan,504 U.S. at 561 (requiring plaintiffs to come forward with specific facts regarding injury). The court has searched the exhibits and affidavits attached to plaintiffs' Opposition brief and cannot find any evidence to support plaintiffs' assertion that SOS's members are represented at schools that lost enrollment to Two Rivers.
There is one declaration submitted by Gail Sonneman, a representative of SOS, which attests that SOS's members have "school age children in grades K-6 attending a DCPS school in Ward 6." Sonneman Decl. ¶ 3. This declaration, however, is insufficient. The fact that 20% of its membership has children attending a DCPS school in Ward 6 does not, in itself, prove that the DCPS schools attended by SOS's members in Ward 6 lost enrollment to Two Rivers. Thus, while plaintiffs have alleged that their children attend non-charter schools that lost enrollment to Two Rivers, plaintiffs have failed to present the necessary specific proof that any plaintiff has a child that attends a non-charter school that lost enrollment to Two Rivers. Plaintiffs cannot demonstrate standing through unsubstantiated allegations.
Plaintiffs argue further that, regardless of whether any students left non-charter schools for Two Rivers, the creation of Two Rivers necessarily resulted in fewer available funds for non-charter schools attended by plaintiffs' children. Plaintiffs' argument is confusing. As best the court is able to understand, plaintiffs' argument is as follows: all funds for DCPS schools -- charter and non-charter -- come out of the education line item in the District of Columbia budget. Both charter and non-charter schools receive the same amount of money per student out of this education line item. The amount received per pupil is calculated pursuant to a "Uniform Per Student Funding Formula" ("UPSFF"). In addition to receiving UPSFF funds, charter schools receive a "facilities allowance" out of the education line item because charter schools must pay the cost of their own facilities, such as rent. Non-charter schools do not receive a "facilities allowance" because the D.C. government provides facilities for non-charter schools from ...