Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 C 813-Rudolph T. Randa, Chief Judge.
The opinion of the court was delivered by: Manion, Circuit Judge
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
Disability Rights Wisconsin, Inc. ("DRW") is a non-profit corporation created under Wisconsin law in order to "[p]ursue legal, administrative and other appropriate remedies to ensure the protection of the rights of persons with developmental disabilities or mental illness." Wis. Stat. § 51.62(3)(a)(1). DRW filed suit against the Walworth County Board of Supervisors ("Board of Supervisors") alleging that the Board of Supervisors' operation of a separate educational facility for disabled children violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. The Board of Supervisors moved to dismiss, arguing that DRW lacked standing to bring suit. The district court granted the motion. DRW appeals the district court's dismissal arguing that it has both standing to sue on its own behalf and associational standing to sue on behalf of its members. We affirm.
When reviewing the grant of a motion to dismiss "we take as true all well-pleaded factual allegations in the complaint and make all plausible inferences from those allegations in the plaintiffs' favor." Levy v. Pappas, 510 F.3d 755, 764 (7th Cir. 2007). The allegations set forth in DRW's First Amended Complaint present the following facts. Walworth County, Wisconsin has a publicly funded program known as the Walworth County Children with Disabilities Education Board ("Disability Board") which has as its purpose educating children with disabilities. The Disability Board, which undertakes such responsibilities as designing and administering curricula, was created by the Board of Supervisors according to Wisconsin Statute § 115.817,*fn1 and acts under the Board of Supervisors' supervision and control. One of the means by which the Disability Board fulfills its mandate is by operating the Lakeland School, described by DRW as "a restrictive, segregated educational environment that exclusively educates disabled students." The Lakeland School opened in 1950 with fourteen students, and currently enrolls 260, or eleven percent, of the 2,300 students receiving special education services in Walworth County. DRW points out that Wisconsin's statewide county average of disabled children educated in a separate school is less than one percent, and alleges that the Lakeland School is a major factor in the higher rate at which children are separately educated in Walworth County. According to DRW, the Disability Board has stated that only a small number of Lakeland's students have "significant needs," and DRW therefore believes that a "large majority" of Lakeland students would be able to be educated in a more integrated environment. DRW alleges, however, that because of the Disability Board's funding and contract agreements, virtually all of the special education employees in Walworth County are employed by the Disability Board, and there is a disincentive for the school districts to fund and staff special education programs at their "non-segregated" schools.
The incident that finally led DRW to file suit was the Board of Supervisors' approval of Resolutions 84-02/06 and 83-02/06 which provided for bonding in the amount of twenty-two million dollars. The Board of Supervisors endorsed the use of these funds to construct a new Lakeland School. DRW alleges that the Board of Supervisors intends to construct a bigger facility, and that when the new building is completed, the number of disabled students able to attend the Lakeland School will increase significantly.
To prevent this action by the Board of Supervisors, DRW brought suit on August 2, 2006, under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 and 12132 ("ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. DRW alleged that the effect of directing resources to the Lakeland School is that a disproportionate number of disabled children end up educated there, and they are therefore not educated "in the most integrated environment to the maximum extent appropriate." The Board of Supervisors moved to dismiss, claiming that DRW lacked standing to pursue these claims, or in the alternative, that it had failed to exhaust its administrative remedies. On March 14, 2007, the district court granted the motion, concluding that DRW lacked associational standing and declining to reach the exhaustion argument. DRW appeals this dismissal, arguing that it has both standing to sue on its own behalf, as well as associational standing to pursue claims on behalf of its members.
Whether a party has standing to bring suit is a question of law we review de novo. Winkler v. Gates, 481 F.3d 977, 982 (7th Cir. 2007). The party seeking to invoke federal jurisdiction, here DRW, has the burden of establishing that it meets the requirements of standing. DH2, Inc. v S.E.C., 422 F.3d 591, 596 (7th Cir. 2005). The standing requirements under Article III of the Constitution are well settled: "injury in fact, a causal connection between the injury and the defendant's conduct, and likely redressability through a favorable decision." Winkler, 481 F.3d at 979 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-61 (1992)). Prudential standing, on the other hand, "embodies 'judicially self-imposed limits on the exercise of federal jurisdiction.' " Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).*fn2 Because the prudential standing analysis assumes satisfaction of the Article III requirements, we turn first to the requirements set out in Lujan.
In considering whether DRW has alleged an injury in fact, we recall that "[a]t the pleading stage, general factual allegations of injury resulting from defendant's conduct may suffice . . . ." Lujan, 504 U.S. at 561. DRW asserts in its brief that when Walworth County constructs the new Lakeland School, it will suffer injury because it will have to devote more of its resources to representing disabled children who want to avoid becoming part of the larger group that will be placed at the facility. Presumably this claim anticipates that there will be children assigned to the Lakeland School whose parents object to that placement and turn to DRW for help. Expenditure of additional resources by a disability rights advocacy group in representing disabled members as the result of governmental conduct has been deemed, in some circumstances, to amount to an injury in fact. See Pennsylvania Protection and Advocacy, Inc. v. Houston, 136 F. Supp. 2d. 353, 361 (E.D. Pa. 2001) (finding that a disability rights advocacy group had standing to sue in its own right where it alleged that it spent time, money, and resources advocating for disabled persons affected by Pennsylvania's policies). Likewise, we recently held that the Democratic party had standing to seek an injunction against enforcement of a law requiring voters to present a photo identification before voting because the law would compel "the party to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law . . . ." Crawford v. Marion County Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), cert. granted, 128 S.Ct. 33 (2007).
Despite these court decisions arguably supporting DRW's assertion regarding expenditure of resources, its argument fails because what DRW presents in its brief regarding expenditure of resources is nowhere alleged in its First Amended Complaint. To sufficiently set forth an injury in fact, DRW would need to make allegations that advocating on behalf of children wrongfully placed in the Lakeland School was going to cause it to expend more of its time, money and resources. Instead, DRW alleges how the new Lakeland School will affect the disabled children of Walworth County, and repeatedly claims to bring the suit "on [their] behalf." Furthermore, the only rights DRW claims are infringed by the Board of Supervisors' conduct are those of Walworth County's disabled children. Finally, the only relief DRW seeks on its own behalf in its Prayer for Relief are the attorneys' fees and costs incurred in filing this action. "Ordinarily . . . the allegation [of a reasonable probability of suffering tangible harm] is enough," MainStreet Org. of Realtors v. Calumet City, Ill., 505 F.3d 742, 745 (7th Cir. 2007), however, DRW made no such allegation in its First Amended Complaint. While DRW compares itself to the plaintiff in Pennsylvania Protection and Advocacy, that case provides it no support because the plaintiff there actually alleged its own injury, whereas DRW did not. Pennsylvania Protection and Advocacy, Inc., 136 F. Supp.2d at 361 ("Plaintiff states that it has spent 'its time, money, and resources to advocate for an end to the waiting list for community services for Pennsylvanians with mental retardation, . . . [and] to counsel and assist the families of individuals with mental retardation who have been unable to access services . . . .") (citing plaintiff's complaint). Indeed, DRW's allegations as recounted above are actually inconsistent with any attempt to seek relief on its own behalf. Accordingly, we conclude that it did not meet the constitutional requirements for standing to sue in its own right.*fn3
DRW also argues that it has associational standing to bring suit on behalf of school-aged disabled children in Walworth County. An organization has associational standing, and may bring suit on behalf of its members, when (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization's purpose, and (3) neither the claims asserted, nor the relief requested, requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). The third requirement does not derive from the Constitution. Instead, it is a judicially imposed limitation, United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 556-57 (1996), which may be overridden by Congress. Family & Children's Ctr., Inc. v. School City of Mishawaka, 13 F.3d 1052, 1059 (7th Cir. 1994). The Board of Supervisors concedes both that Congress eliminated the third requirement in enacting the Developmental Disabilities Act, 42 U.S.C. § 15043(a), and that the interests DRW seeks to protect fit within the Act's purpose. Accordingly, the dispute between the parties regarding associational standing boils down to the first factor set out in Hunt, namely whether any DRW members have standing to sue in their own right.
The first Hunt factor satisfies Article III standing concerns by "requiring an organization suing as representative to include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association." United Food, 517 U.S. at 555. This requirement, however, still allows for the member on whose behalf the suit is filed to remain unnamed by the organization. Doe v. Stincer, 175 F.3d 879, 882 (11th Cir. 1999). Even taking that allowance into consideration, we do not find any allegations made by DRW sufficient to establish that any of its members have sus- tained their own injury in fact, caused by the Board of Supervisors' conduct, and able to be redressed by a favorable decision. Rather, DRW describes the high rates of separate education in Walworth County, states that the presence there of the Lakeland School is "a major factor" contributing to those higher rates, and then alleges that "the number of potential students with disabilities who can enroll at Lakeland School will increase significantly" upon the new school's completion. Based on this ...