James M. Friery v. Los Angeles Unified School District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JAMES M. FRIERY,
Plaintiff-Appellant,
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT; RUSS THOMPSON;
GENETHIA HUDLEY HAYES; VALERIE No. 01-56016FIELDS; VICTORIA M. CASTRO;
CAPRICE YOUNG; DAVID TOKOFSKY; D.C. No.
JULIE KORENSTEIN; MIKE LANSING; CV-00-06536- 
RUBEN ZACARIAS, in their NM/SH
individual and official capacities; ORDER
UNITED TEACHERS OF LOS ANGELES,
Defendants-Appellees,
and
OFFICE OF CIVIL RIGHTS; DOES 1
through 10, inclusive,
Defendants. 
Appeal from the United States District Court
for the Central District of California
Nora M. Manella, District Judge, Presiding
Argued and Submitted June 5, 2002
Questions Certified to California Supreme Court
August 22, 2002
Certification Denied November 13, 2002
Supplemental Briefing Ordered August 13, 2003
Submission Deferred March 12, 2004
Supplemental Briefing Ordered October 28, 2005
Re-argued and Re-submitted April 6, 2006
Pasadena, California
5731

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Filed May 24, 2006
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
Sidney R. Thomas, Circuit Judges.
COUNSEL
Richard D. Ackerman, United States Justice Foundation,
Temecula, California, argued the cause and was on the brief
for appellant. Gary G. Kreep, United States Justice Founda-
tion, Escondido, California, was on the brief.
Peter W. James, Baker & Hostetler LLP, Los Angeles, Cali-
fornia, argued the cause and was on the brief for appellee Los
Angeles Unified School District. Lisa F. Hinchliffe and Greg-
ory L. Vinson, Baker & Hostetler LLP, Los Angeles, Califor-
nia, were on the brief.
Jesus E. Quinonez, Burbank, California, argued the cause for
appellee United Teachers of Los Angeles.
John D. Findley and Harold E. Johnson, Pacific Legal Foun-
dation, Sacramento, California, were on the brief for amicus
curiae Pacific Legal Foundation.
ORDER
We have been asked to consider whether a school district’s
race-conscious faculty transfer policy violates either the Cali-
fornia or federal constitutions.1 Before we reach the merits of
the claim, we must first consider whether the plaintiff has
standing to bring suit. Because we conclude that the record is
1The Motion to File a Supplemental Brief Amicus Curiae of Pacific
Legal Foundation in Support of Appellant James M. Friery is granted.
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insufficiently developed to determine whether there is Article
III standing, we remand to the district court for the limited
purpose of finding facts and making a determination of the
plaintiff’s standing.2
I
James Friery, the plaintiff-appellant, is a physical education
instructor at Van Nuys High School who sought to transfer to
Van Nuys Math / Science Magnet School (“the Magnet
School”). The Magnet School is located on the same campus
as Van Nuys High School, and both are part of the Los Ange-
les Unified School District (“LAUSD”).
The LAUSD has adopted a Transfer Policy which bars
intra-district faculty transfers that would move the destination
school’s ratio of white faculty to nonwhite faculty too far
from LAUSD’s overall ratio. Versions of the Transfer Policy
have been in place for about 20 years, but LAUSD adopted
the current Transfer Policy in 1997. As its name suggests, the
Transfer Policy applies only to “assignments, displacements
and transfers of teachers,” not to hiring or firing decisions.
Under the Transfer Policy, both ordinary secondary schools
(like Van Nuys High) and magnet schools (like Van Nuys
Magnet) may deviate up to 15 percentage points below or 25
percentage points above the overall percentage of minority
faculty. Thus, because in 1999, 51 percent of LAUSD’s K-12
and magnet school teachers were minorities, the faculty of the
Magnet School could permissibly be as high as 76 percent
2At oral argument the possibility arose of abstention in light of currently
pending state court litigation—in American Civil Rights Foundation v.
LAUSD, Los Angeles Superior Court Case No. BC341341 (filed Oct. 12,
2005)—involving novel state law questions identical to those presented
here. See, e.g., R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).
Similarly, the parties questioned the propriety of supplemental jurisdiction
under 28 U.S.C. § 1367(c), in light of the novel and complex state law
issue presented. If either issue is pursued before the district court, we
would consider these issues to be within the scope of the limited remand.
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minority or as low as 36 percent minority. The Transfer Pol-
icy also provides that “the goals may be modified as a result
of the qualifications of available applicants or to meet the
instructional needs of students, the school’s instructional pro-
gram or other specific and demonstrable requirements of the
school.”
On or about June 17, 1999, Friery approached Russ
Thompson, formerly the principal of Van Nuys High School,
and inquired about the possibility of applying to transfer to a
then-vacant position as the physical education teacher at the
Magnet School. Thompson told Friery that he would not be
eligible for the transfer because he was—in Thompson’s
words—of “the wrong ethnic origin.” Friery did not file a for-
mal application to transfer, in light of Thompson’s representa-
tion. Friery’s claims against the defendants are based solely
on his challenge to the Transfer Policy.
As a result of Thompson’s representation that he would not
be eligible for the transfer, Friery filed suit in federal court,
alleging violations of the Equal Protection Clause of the
United States Constitution, U.S. Const. amend. XIV, § 1, and
the Equal Protection Clause of the California Constitution,
Cal. Const. art. I, § 31. Friery named as defendants Thomp-
son; the LAUSD, its superintendent, and the members of its
governing board; the union representing the district’s teach-
ers, with whom the district had negotiated the Transfer Policy;
and a federal agency that was later dismissed from the action
(collectively, “the defendants”).
The district court, apparently assuming without deciding
that Friery had established standing, granted summary judg-
ment to the defendants, concluding that the Transfer Policy
violated neither the California nor federal constitutions. Fol-
lowing submission after oral argument in June 2002, we certi-
fied various state law questions to the California Supreme
Court. See Friery v. L.A. Unified Sch. Dist., 300 F.3d 1120
(9th Cir. 2002). The California Supreme Court denied the
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request for certification. Friery v. L.A. Unified Sch. Dist.,
S109751 (filed Nov. 13, 2002). In August 2003, we invited
the parties to file supplemental briefing discussing the impact
of the Supreme Court’s decisions in Grutter v. Bollinger, 539
U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003).
We subsequently stayed proceedings pending Parents
Involved in Community Schools v. Seattle School District, No.
1, 426 F.3d 1162, 1173 (9th Cir. 2005) (en banc). Those pro-
ceedings having concluded, the parties were invited to file
supplemental briefing discussing Parents Involved in October
2005. Having received the supplemental briefing, we heard
further oral argument and took this case under submission
again.
II
Friery challenges the constitutionality of the LAUSD’s
transfer policy. Despite the advanced stage of this litigation,
the LAUSD questioned Friery’s standing in its supplemental
briefing. As standing implicates Article III limitations on our
power to decide a case, we must address it before proceeding
to the merits. See Arizonans for Official English v. Arizona,
520 U.S. 43, 64 (1997) (“Standing to sue is an aspect of the
case-controversy requirement.”); see also Fed. R. Civ. P.
12(h)(3) (“Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject mat-
ter, the court shall dismiss the action.”).
It is a long-established rule “that a plaintiff lacks standing
to challenge a rule or policy to which he has not submitted
himself by actually applying for the desired benefit.” Madsen
v. Boise State Univ., 976 F.2d 1219, 1220-1221 (9th Cir.
1992) (per curiam) (citing, inter alia, Moose Lodge No. 107
v. Irvis, 407 U.S. 163, 166-71 (1972) (plaintiff who did not
apply for membership in a fraternal organization lacked stand-
ing to challenge its discriminatory membership policies); and
Lehon v. City of Atlanta, 242 U.S. 53, 56 (1916) (non-resident
who did not apply for a permit lacked standing to challenge
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allegedly discriminatory licensing ordinance)). In Madsen, the
plaintiff sued the university alleging discrimination because
the university did not offer free handicap parking permits.
Madsen called the university parking office to inquire about
free permits, but was told that none were available. Id. at
1220. Madsen did not apply for a permit, nor did he seek a fee
waiver. Id. Instead, he immediately filed a complaint with the
U.S. Department of Education, Office of Civil Rights. Id. We
determined, therefore, that Madsen did not have standing to
bring his claim. Id. at 1221-22.
We noted in Madsen that requiring that a party to “have
actually confronted the policy” that he alleges to be discrimi-
natory “has several prudential and practical advantages.” Id.
at 1221. As we explained in the later case of United States v.
Baugh, “A central reason for this requirement is to ensure that
the challenged policy actually affected the person challenging
it.” 187 F.3d 1037, 1042 (9th Cir. 1999).
On the facts before us in this appeal, we share the concerns
expressed in Madsen. In particular, we are uncertain whether
the Transfer Policy would have affected Friery. We know that
Thompson suggested to Friery that any application would be
futile, but we do not know what role Thompson played in hir-
ing or firing decisions themselves. It appears that Thompson
was principal of Van Nuys High School, but not the Magnet
School, so it is unclear what his role would be, if any, in eval-
uating transfer applications. If Thompson’s interpretation of
the Transfer Policy is binding, then Friery’s application would
presumably be futile. However, if the situs of decision-
making power is at the district level, or with some other offi-
cial, then Thompson’s statement might be wholly irrelevant.
Moreover, we note that the Transfer Policy itself may be
“modified as a result of the qualifications of available appli-
cants.” We are uncertain who has the authority to “modif[y]”
the program goals. It may well be that had Friery applied for
a position at the Magnet School, the school might have
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accepted his application on the basis of dire need, excellent
qualifications, or any other reason. Again, despite Thomp-
son’s warning to the contrary, Friery does not appear wholly
without a hope.
Friery claims that a formal transfer application would be
futile, thereby negating that requirement. Taniguchi v.
Schultz, 303 F.3d 950, 957 (9th Cir. 2002) (“We have consis-
tently held that standing does not require exercises in futility.”
(citing Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 499
(9th Cir. 1981)); see also Desert Outdoor Adver., Inc. v. City
of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996). But this
assumes too much: If Thompson correctly interpreted the
Transfer Policy, if Thompson had the authority to deny Friery
the ability to transfer, and if any exceptions in the Transfer
Policy did not apply to Friery, then Thompson’s assurances to
him might make Friery’s application futile. However, these
facts represent the quintessence of conjecture and speculation
—realms where our jurisdiction to entertain suit may cease.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(noting that “the irreducible constitutional minimum of stand-
ing” includes “an injury in fact” that is “actual or imminent,
not conjectural or hypothetical” as well as “a causal connec-
tion between the injury and the conduct complained of”
(internal quotation marks and citations omitted)).
In short, we need more information before we can deter-
mine whether this case falls under Taniguchi—as Friery’s
asserts—rather than Madsen. Because we conclude that the
record requires further factual development before we can be
confident that we have jurisdiction to consider Friery’s com-
plaint, we cannot proceed further. We therefore order a lim-
ited remand to the district court with instructions to develop
the factual record and to determine whether Friery has stand-
ing to bring suit. The district court may entertain any appro-
priate motions. We offer no view on whether abstention or
dismissal of the action (or any individual claim) is appropriate
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at this juncture, but should the district court decide that it is,
it may enter an appropriate order.
This order rests entirely on Friery’s standing (or possibly
lack thereof), and we do not—indeed may not—express any
opinion as to standing or the underlying merits of his com-
plaint.
REMANDED to the district court for further proceedings
consistent with this order. The district court is requested to
respond with its findings and determinations at its earliest
convenience.
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