Wilson v. Glenwood Intermountain Properties, Inc.

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 10/21/96
TENTH CIRCUIT

MARK WILSON and ANNE WALKER,

Plaintiffs-Appellants,

v. No. 95-4056

GLENWOOD INTERMOUNTAIN
PROPERTIES, INC.; BRANBURY
PARK, INC.; DATA-PROP
MANAGEMENT, INC.; D. ROGER
CONRAD, BONNIE L. CONRAD;
DAVID E. NAGEL, BARBARA K.
NAGEL; KENT S. GILBERT; LANA R.
GILBERT; TAPP/SORENSEN
PARTNERSHIP; ELAINE M. MILLER;
JOHN E. KNUDSEN, GLEN C.
ROWLAND; KELLY W. ROMNEY
PARTNERSHIP,

Defendants-Appellees.

BRIGHAM YOUNG UNIVERSITY, a
Utah corporation,

Intervenor-Appellee.

Appeal from United States District Court
for the District of Utah
(D.C. No. 94-CV-745)

Bruce Plenk (Jensie L. Anderson with him on the brief), of American Civil Liberties
Union of Utah Foundation, Inc., of Salt Lake City, Utah, for the appellants.

Rex E. Lee, of Sidley & Austin, of Los Angeles, California (Mary Anne Q. Wood and
Kathryn O. Balmforth, of Wood, Quinn & Crapo, L.C., of Salt Lake City, Utah; Richard
M. Hymas of Nielsen and Senior, of Salt Lake City, Utah; Eugene H. Bramhall and David
B. Thomas, of Brigham Young University, Salt Lake City, Utah, with him on the brief),
for the appellees.

Before BALDOCK, EBEL, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs Mark Wilson and Anne Walker appeal from the district court's summary

judgment order denying their claims that the defendant landlords violated the Fair

Housing Act (42 U.S.C. §§ 3601-3631) by providing and advertising gender-segregated

housing to students of Brigham Young University (BYU). Although the district court

reached the merits after finding plaintiffs had standing to assert their gender

discrimination claims, we conclude they do not have standing, vacate the district court's

judgment on those claims, and remand with directions to dismiss plaintiffs' gender

discrimination claims for lack of jurisdiction.

Brigham Young University requires unmarried students under 25 years of age to

live in BYU-approved housing either on or off campus. All of the defendant landlords

have been certified by BYU to provide BYU off-campus housing to unmarried BYU

students. As a part of that certification, defendant landlords agreed (1) to rent their BYU-

approved units only to unmarried BYU students, married BYU students, or student

families; (2) to segregate students from non-students by buildings or wings of buildings if

they are certified to rent to both students and non-students; (3) to rent only to unmarried

male or unmarried female students or to separate unmarried male students from

unmarried female students by buildings or wings of buildings if the landlords are certified

to rent to both male and female BYU students; and (4) to use the most recent version of

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the BYU-approved Student-Landlord Rental Agreement with all of their student renters.

All of the defendant landlords own, operate, and advertise gender-segregated apartment

buildings and wings for unmarried BYU students. Apartments in those buildings and

wings are rented only to students, and none of the landlords segregate non-student renters

by gender.

Wilson, an unmarried man under 25 years old who was not a BYU student, was

denied apartments in off-campus BYU-approved student housing that was reserved for

women. Walker, an unmarried woman under 25 years old who was not a BYU student,

was denied apartments in off-campus BYU-approved student housing that was reserved

for men. Plaintiffs brought this action against the defendant landlords for declaratory and

injunctive relief, alleging defendants violated the Fair Housing Act by discriminating on

the basis of religion, family status, and gender. BYU intervened as a defendant to defend

its off-campus housing program.

The district court entered summary judgment in favor of defendants on all claims.

On appeal, plaintiffs challenge only the denial of their gender discrimination claims. On

these claims, the district court ruled that plaintiffs failed to establish a prima facie case of

gender discrimination because, as non-students, they were not otherwise qualified for

apartments reserved for students. The court also ruled that in any case defendants'

practices were permitted under Title IX, 20 U.S.C. § 1686, which provides in pertinent

part: "[N]othing contained herein shall be construed to prohibit any educational

institution receiving funds under this Act, from maintaining separate living facilities for

the different sexes." As regards defendants' advertising of gender-segregated student

apartments, the district court held if such gender segregation is lawful, then truthful

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advertising which describes that practice cannot be unlawful.

We do not reach the merits because we conclude that plaintiffs lacked standing to

bring the gender discrimination claims. Standing is a jurisdictional issue that may be

raised by the court at any time. See National Organization for Women v. Scheidler, 114

S. Ct. 798, 802 (1994); FW/PBS v. City of Dallas, 493 U.S. 215, 229-32 (1990). The

district court's finding that defendants conceded plaintiffs had standing to raise their

gender discrimination claims is not determinative; parties cannot confer subject matter

jurisdiction on the courts by agreement. See Laughlin v. Kmart Corp., 50 F.3d 871, 873

(10th Cir.); cert. denied 116 S.Ct. 174 (1995) (amount in controversy); Barhold v.

Rodriguez, 863 F.2d 233, 234 (2d Cir. 1988) (standing). We review the standing issue de

novo because standing is a question of law. See Mountain Side Mobile Estates

Partnership v. Secretary of Housing and Urban Development, 56 F.3d 1243, 1249 (10th

Cir. 1995).

Standing under the Fair Housing Act is as broad as permitted by Article III of the

Constitution. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982);

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). To satisfy the

Article III standing requirement, a party must establish three elements: (1) injury in fact,

(2) a causal relationship between the injury and the challenged conduct, and (3) likelihood

that the injury will be redressed by a favorable decision. Northeastern Florida Chapter of

Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 663-64

(1993). Plaintiffs have not shown the required causal relationship or the likelihood that a

favorable decision would redress the injury.

Plaintiffs claiming discrimination in the denial of a benefit need not show they

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would have obtained the benefit in the absence of the discrimination to establish standing;

it is enough to show the discrimination deprived them of the ability to compete for the

benefit on an equal footing. Northeastern Florida, 508 U.S. at 666-68. See Adarand

Constructors v. Pena, 115 S. Ct. 2097, 2104-05 (1995). However, a person who fails to

satisfy lawful, nondiscriminatory requirements or qualifications for the benefit lacks

standing to raise claims of discrimination in the denial of the benefit. The discrimination

does not deprive the person of the ability to compete because he or she is disqualified

from competing for other, legitimate reasons. A favorable decision on the discrimination

claim could not redress the injury because the person would still be disqualified from

competing. See Brunet v. City of Columbus, 1 F.3d 390, 398-99 (6th Cir. 1993), cert.

denied 510 U.S. 1164 (1994) (male applicants who ranked too low to be eligible for

hiring as firefighters lacked standing to challenge hiring of female applicants out of rank

order); Donaghy v. City of Omaha, 933 F.2d 1448, 1455 (8th Cir. 1991), cert. denied 502

U.S. 1059 (1992) (white applicant for promotion to police lieutenant had standing to

challenge promotion of minority officers out of rank order only after he would have

ranked high enough to be considered for promotion if strict rank order had been

followed); Bashir v. Supreme Court of Ohio, 652 F.2d 641 (6th Cir. 1981) (Pakistani

attorney who sought admission to Ohio bar by motion lacked standing to challenge

requirement of U.S. citizenship because he failed to satisfy requirement of admission to

bar in another state); Doherty v. Rutgers School of Law-Newark, 651 F.2d 893, 899-902

(3d Cir. 1981) (unsuccessful white applicant for admission to law school lacked standing

to challenge minority admissions program because he was not qualified for admission

even in the absence of the minority admissions program). See also Harris v. McRae, 448

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U.S. 297, 320 (1980) (women who were neither pregnant nor eligible for Medicaid lacked

standing to bring free exercise of religion challenge to legislation limiting use of federal

Medicaid funds to pay for abortions); Fulani v. Bentsen, 35 F.3d 49, 54 (2d Cir. 1994)

(presidential candidate excluded from televised debate co-sponsored by League of

Women Voters and television network lacked standing to challenge League's tax-exempt

status and eligibility to sponsor debate because network would have excluded candidate

even if League lost tax-exempt status and eligibility as sponsor). But see Price v. City of

Charlotte, 93 F.3d 1241, 1245-48 (4th Cir. 1996) (white police officers who would not

have been promoted even if city had not promoted lower-ranked minority officers had

standing to seek damages for emotional distress over racial preference). "[A] mere

abstract denial of equal opportunity does not constitute injury in fact. A general denial of

equal opportunity does not confer standing on a particular individual unless that

individual would have had access to the benefit at stake in the absence of discrimination."

N.A.A.C.P., Boston Chapter v. Harris, 607 F.2d 514, 520 (1st Cir. 1979). Discrimination

cannot be the cause of injury to an applicant who could not have obtained the benefit even

in the absence of the discrimination.

The Fair Housing Act does not make it unlawful for landlords to give preference to

college students over non-students, and plaintiffs have not appealed the district court's

denial of their claims that defendants' refusal to rent apartments to anyone other than

BYU students constituted religious discrimination. Because plaintiffs were not BYU

students, the ownership and/or operation of gender-segregated apartments reserved solely

for BYU students could not have caused plaintiffs to lose the opportunity to rent the

apartments. As non-students, plaintiffs lack standing to bring their gender discrimination

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claims because even in the absence of the challenged gender discrimination they would

not have qualified to rent the student apartments.

Further, a decision that defendants' ownership and/or operation of single-gender

apartment buildings and wings for BYU students violated the Fair Housing Act would not

redress plaintiffs' injury because they would still not be qualified to rent apartments

reserved for BYU students. Plaintiffs lack standing to challenge defendants' rental

practices because they do not "stand to profit in some personal interest" and lack a

"personal stake" in the outcome. See Allen v. Wright, 468 U.S. 737, 766 (1984); Warth

v. Seldin, 422 U.S. 490, 498 (1975).

Whether plaintiffs had standing to challenge defendants' advertising of the gender-

segregated student apartments under 42 U.S.C. § 3604(c) is a closer question. Section

3604(c) makes it unlawful

[t]o make, print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement, with respect to the sale or rental of a dwelling that
indicates any preference, limitation, or discrimination based on race, color,
religion, sex, handicap, familial status, or national origin, or an intention to make
any such preference, limitation, or discrimination.

The record does not disclose the precise text of the advertisements, but the district

court stated the three apartment complexes that rent only to male BYU students

advertised their apartments were available only to male BYU students. The three

complexes that rent only to female BYU students advertised their apartments were

available only to female BYU students. The other seven complexes were approved for

both male and female students, and four of those complexes rented only to BYU students.

It was "undisputed that the Defendant Landlords advertise their apartments as BYU-

approved for male and/or female students."

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 Advertisements for apartments approved for both male and female students do not

indicate a gender preference and do not expressly disclose the apartments were gender-

segregated so they do not clearly violate 42 U.S.C. § 3604(c), although anyone familiar

with BYU housing policies would know the advertised apartments would be gender-

segregated. However, advertisements for apartments available only to BYU students of

one gender do indicate a preference, limitation, or discrimination.

Although these advertisements state the apartments are available only to students,

plaintiffs' non-student status does not by itself determine standing to challenge the

advertisements. The advertisements and not the refusals to rent are the statutory wrongs

at issue. People may be subjected to discriminatory advertisements for apartments

whether or not they are otherwise qualified or eligible to rent the apartments. Two courts

have held that mere receipt of a discriminatory advertisement prohibited by the Fair

Housing Act confers standing. See Ragin v. Harry Macklowe Real Estate Co., 6 F.3d

898, 904 (2d Cir. 1993); Saunders v. General Services Corp., 659 F. Supp. 1042, 1053

(E.D. Va. 1986). However, in Saunders, in addition to receipt of the advertisements,

plaintiff also alleged the advertisements deterred her from considering living in any of

defendant's properties.

Both Saunders and Ragin relied on Havens, 455 U.S. 363. In Havens, the Court

held that testers working for a fair housing organization who did not intend to rent

apartments for which they applied had standing to sue under 42 U.S.C. § 3604(d) for

misrepresentations that apartments were unavailable when they were in fact available. 42

U.S.C. § 3604(d) makes it unlawful "[t]o represent to any person because of race, color,

religion, sex, handicap, familial status, or national origin that any dwelling is not available

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for inspection, sale, or rental when such dwelling is in fact so available." The Court in

Havens emphasized the statutory phrase "any person," and concluded the testers had

standing because the actual or threatened injury required by Article III "may exist solely

by virtue of 'statutes creating legal rights, the invasion of which creates standing.'" 455

U.S. at 373. The court in Ragin found no significant difference between the statutorily

recognized injury suffered by the testers in Havens and the injury sustained by readers of

discriminatory advertising. 6 F. 3d at 904.

Under Ragin, and arguably Saunders, anyone who receives a discriminatory

housing advertisement would have standing. Even non-students who see advertisements

for apartments available only to students of one gender could have standing under these

cases. However, in Spann v. Colonial Village, 899 F.2d 24, 29, n.2 (D.C. Cir.), cert.

denied 498 U.S. 980 (1990), Judge Ginsburg expressed doubt that mere receipt of a

discriminatory advertisement by plaintiffs could cause sufficient injury to establish

standing under Article III:

[W]e question whether Congress intended 804(c) [20 U.S.C. § 3604(c)] to confer a
legal right on all individuals to be free from indignation and distress. But see
Saunders, 659 F. Supp. at 1053 (mere receipt of preferential advertising violates
statute and thus confers standing). We have no doubt, however, that an individual
plaintiff who alleged and later proved that an advertisement indicating a racial
preference deterred her from seeking housing in the advertised property would
possess standing.1

Here, plaintiffs did not specifically allege they read the advertisements, but that

1
The Fair Housing Act prohibits discriminatory advertising because
"[w]idespread appearance of discriminatory advertisements in public or private media
may reasonably be thought to have a harmful effect on the general aims of the Act; seeing
large numbers of 'white only' advertisements in one part of a city may deter nonwhites
from venturing to seek homes there." United States v. Hunter, 459 F.2d 204, 214 (4th
Cir. 1972).

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can be inferred from the allegations that defendants advertised a gender preference. Cf.

Saunders, 659 F. Supp. at 1053 (fair housing organization lacked representational

standing because there was no evidence of connection between challenged discriminatory

advertisements and any of organization's members). Plaintiffs did not allege any other

injury stemming from the advertisements. They did not allege the advertisements

deterred them from seeking to rent the apartments; in fact, they applied to rent them.

Resolving whether plaintiffs have standing to challenge defendants' discriminatory

advertising therefore will require resolving whether plaintiffs' mere receipt of the

advertisements is sufficient to confer standing. We conclude it is not.

Cases holding that mere receipt of a discriminatory advertisement is a sufficient

injury to establish standing take Havens too far. We note that the Fair Housing Act

provision at issue in Havens was 42 U.S.C. § 3604(d), which the Court concluded gives

all persons a statutory right to truthful information about availability of housing because it

expressly prohibits misrepresentations to "any person." 455 U.S. at 373. The provision at

issue here is 42 U.S.C. § 3604(c), which prohibits discriminatory advertisements, but does

not expressly state that advertisements and statements to "any person" are unlawful; the

subsection does not designate to whom the statements must be made to be unlawful.

Subsection (c) therefore does not give all persons an express statutory right to be free

from discriminatory advertising.

Discriminatory advertising stigmatizes the discriminated-against group, and it is

true that the stigmatizing injury often caused by racial discrimination can be sufficient in

some circumstances to support standing. Allen, 468 U.S. at 755. In Smith v. City of

Cleveland Heights, 760 F.2d 720 (6th Cir. 1985), cert. denied 474 U.S. 1056 (1986), the

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defendant engaged in racial "steering" of black home buyers away from the city to

maintain integrated neighborhoods. The plaintiff, a black resident of the city who was not

himself subjected to steering, alleged the city's steering policies stigmatized him as a

member of the group deemed undesirable by the city. The court concluded this was a

sufficient injury to confer standing. 760 F.2d at 726-28. Arguably, the stigmatizing

effect of gender discrimination in housing advertisements could be a sufficient injury to

confer standing on persons who merely see the advertising.

However, we conclude that mere receipt by plaintiffs of the discriminatory

advertisements in this case could cause only the kind of "abstract stigmatic injury" held

insufficient to establish standing in Allen, 468 U.S. 737. In Allen, parents of black public

school children contended IRS failed to carry out its obligation to deny tax-exempt status

to racially discriminatory private schools. They asserted they were harmed by the mere

fact of government aid to discriminatory private schools. The Court concluded stigmatic

injury must be suffered as a direct result of having personally been denied equal treatment

in order to confer standing. The Court explained that if the stigmatic injury were

cognizable, standing would extend nationwide to all members of a racial group claiming

unequal treatment, regardless of the location of the discriminatory school. "Recognition

of standing in such circumstances would transform the federal courts into 'no more than a

vehicle for the vindication of the value interests of concerned bystanders." 468 U.S. at

756 (quoting United States v. SCRAP, 412 U.S. 669, 687 (1973)).

Similarly here, if the stigmatic effect of a discriminatory advertisement were a

sufficient injury, members of the discriminated-against group who read a discriminatory

advertisement in the New York Times for example would have standing regardless of

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whether they lived in New York City or on the West Coast, whether they had any interest

in living in the advertised housing, and whether they met legitimate, nondiscriminatory

qualifications for the housing. Persons who merely see a discriminatory advertisement

are "concerned bystanders" who are not personally subjected to discrimination.

This is particularly true here because the advertising indicated the gender

discrimination was directed only at students, and plaintiffs were not students. Plaintiffs

were at most "concerned bystanders." Although a party may establish standing by raising

claims of non-economic injury, "claims of injury that are purely abstract, even if they

might be understood to lead to 'the psychological consequence presumably produced by

observation of conduct with which one disagrees,' [citation omitted] do not provide the

kind of particular, direct, and concrete injury that is necessary to confer standing to sue in

the federal courts." ASARCO v. Kadish, 490 U.S. 605, 616 (1989) (quoting Valley Forge

Christian College v. Americans United for Separation of Church and State, 454 U.S. 464,

485 (1982)).

By contrast, in Smith, the city's racial steering practices had a more concrete and

personal effect on the plaintiff than mere receipt of discriminatory advertisements. As

the court explained in Smith,

Smith's relationship to the source and situs of his injury is far from attenuated or
generalized. The source of his injury is a local governmental policy tailored
expressly to shape the racial composition of his community. The situs is the very
community in which he lives. These direct and concrete connections demonstrate
that Smith's injury is "peculiar to himself or to a distinct group of which he is a
part," [citation omitted], and that he is "personally subject to the challenged
discrimination."

760 F.2d at 723. Accordingly, we conclude plaintiffs lacked standing to bring their

claims that the discriminatory advertisements for BYU student housing violated the Fair

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Housing Act.

The district court's entry of summary judgment in favor of defendants on the

gender discrimination claims is VACATED, and this case is REMANDED to the district

court with directions to dismiss plaintiffs' gender discrimination claims for lack of

jurisdiction.

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