## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILFRED KEYES, individually and on behalf of CHRISTI KEYES, a minor; CHRISTINE A. COLLEY, individually and on behalf of KRIS M. COLLEY, and MARK A. WILLIAMS, minors; IRMA J. JENNINGS, individually and on behalf of RHONDA O. JENNINGS, a minor; ROBERTA R. WADE, individually and on behalf of GREGORY L. WADE, a minor; EDWARD J. STARKS, JR., individually and on behalf of DENISE MICHELLE STARKS, a minor; JOSEPHINE PEREZ, individually and on behalf of CARLOS A. PEREZ, SHIELA R. PEREZ and TERRY J. PEREZ, minors; MAXINE N. BECKER, individually and on behalf of DINAH L. BECKER, a minor; EUGENE R. WEINER, individually and on behalf of SARAH S. WEINER, a minor,

Plaintiffs-Appellants, No. 95-1487-2-

and
CONGRESS OF HISPANIC EDUCATORS, an unincorporated association; MONTBELLO CITIZENS’ COMMITTEE, INC.; ARTURO ESCOBEDO and JOANNE ESCOBEDO, individually and on behalf of LINDA ESCOBEDO and MARK ESCOBEDO, minors; EDDIE R. CORDOVA, individually and on behalf of RENEE CORDOVA, and BARBARA CORDOVA, minors; ROBERT PENA, individually and on behalf of THERESA K. PENA and CRAIG R. PENA, minors; ROBERT L. HERNANDEZ and MARGARET M. HERNANDEZ, individually and on behalf of RANDY R. HERNANDEZ; ROGER L. HERNANDEZ, RUSSELL C. HERNANDEZ, RACHELLE J. HERNANDEZ, minors; FRANK MADRID, individually and on behalf of JEANNE S. MADRID, a minor; RONALD E. MONTOYA and NAOMI R. MONTOYA, individually and on behalf of RONALD C. MONTOYA, a minor; JOHN E. DOMINGUEZ and ESTHER E. DOMINGUEZ,-3-

individually and on behalf of JOHN E. DOMINGUEZ, MARK E. DOMINGUEZ and MICHAEL J. DOMINGUEZ, minors; JOHN H. FLORES and ANNA, individually and on behalf of THERESA FLORES, JONI A. FLORES and LUIS E. FLORES, minors; MOORE SCHOOL COMMUNITY ASSOCIATION, and MOORE SCHOOL LAY ADVISORY COMMITTEE; CITIZENS ASSOCIATION FOR NEIGHBORHOOD SCHOOLS, an unincorporated association, and on behalf of all others similarly situated,

Plaintiffs-Intervenors,

v. SCHOOL DISTRICT NO. 1, Denver, Colorado; THE BOARD OF EDUCATION, SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO; WILLIAM C. BERGE, individually and as President, Board of Education, School District Number One, Denver, Colorado; STEPHEN J. KNIGHT, JR., individually and as Vice President, Board of Education, School District Number One, Denver, Colorado; JAMES C. PERRILL; FRANK K. SOUTHWORTH; JOHN H. AMESSE; JAMES D. VOORHEES, JR. and RACHEL B. NOEL,-4-

individually and as members, Board Education, School District Number One, Denver, Colorado; ROBERT D. GILBERTS, individually and as Superintendent of Schools, School District Number One, Denver, Colorado, Defendants-Appellees,
MR. AND MRS. DOUGLAS BARNETT, individually and on behalf of JADE BARNETT, a minor; MR. AND MRS. JACK PIERCE, individually and on behalf of REBECCA PIERCE and CYNTHIA PIERCE, minors; JANE WALDEN, individually and on behalf of JAMES CRAIG WALDEN, a minor; MR. AND MRS. WILLIAM B. BRICE, individually and on behalf of KRISTIE BRICE, a minor; MR. AND MRS. CARL ANDERSON, individually and on behalf of GREGORY ANDERSON, CINDY ANDERSON, JEFFERY ANDERSON and TAMMY ANDERSON, minors; MR. AND MRS. CHARLES SIMPSON, individually and on behalf of DOUGLAS SIMPSON, a minor; MR. AND MRS. PATRICK McCARTHY, individually and on behalf of CASSANDRA McCARTHY, a minor; RICHARD KLEIN, individually and on behalf of JANET KLEIN, a minor; MR. AND MRS. FRANK RUPERT,-5-

individually and on behalf of MICHAEL RUPERT and SCOTT RUPERT, minors; STATE OF COLORADO, ex rel. Gale Norton,

Defendants-Intervenors,

________________________________ SUSAN TARRANT, WADE POTTER, DEBORAH POTTER, DANIEL J. PATCH, MARILYN Y. PATCH, CHRIS ANDRES, RONALD GRIEGO, DORA GRIEGO and RANDY FRENCH,
Intervenors.

Appeal from the United States District Court for the District of Colorado (D.C. No. 69-M-1499)

Gordon G. Greiner, Holland & Hart, Denver, CO, (Den nis D. Parker, NAACP Legal Defense and Education Fund, Inc., New York, N Y, on the briefs), for Plaintiffs-Appellants. Michael H. Jackson, Semple & Jackson, Denver, CO (P hil C. Neal, Neal, Gerber & Eisenberg, Chicago, IL, on the briefs), for Defen dants-Appellees. Timothy M. Tymkovich, Solicitor General, State of C olorado, Denver, CO (Gale A. Norton, Attorney General of Colorado, Denver, CO , and William E. Thro, Assistant Attorney General of Colorado, Denver, CO, on the briefs), for Defendant-Intervenor-Appellee State of Colorado.

Before ANDERSON, HENRY, and MURPHY, Circuit Judges.1 The district court removed the claims of the Congre ss of Hispanic

Educators to a separate and independent civil actio n under the Equal Educational Opportunities Act of 1974. See Keyes v. Congress of Hispanic Educators , 902 F. Supp. 1274, 1275 (D. Colo. 1995). MURPHY , Circuit Judge.

Since 1969 the United States District Court for the District of Colorado has maintained jurisdiction over School District No. 1, Denver, Colorado (“the School District”), for the purpose of eliminating de jure segregation in the Denver schools. This appeal arises from the district court’s 1995 decision to terminate its jurisdiction over the School District, finding the School District had eliminated the vestiges of de jure discrimination to the extent practicable. Appella nts Wilfred Keyes and others 1 (”Appellants”) do not appeal the termination of jurisdiction, but rather appeal the district court’ s decision insofar as it opined upon the constitutionality of Article IX, Section 8 of the Colorado Constitution (“the Busing Clause”) and two Colorado statutory pr ovisions. See Colo. Rev. Stat. §§ 22-36-101(3), 22-30.5-104(3). Those issue s, however, are not justiciable. As a consequence, there is no case or controversy a s required by Article III, Section 2 of the United States Constitution, and th is appeal is dismissed for lack of jurisdiction.2 See Keyes v. School Dist. No. 1, 303 F. Supp. 279 (D. Colo. 1969) (“Keyes

I ”), modified, 303 F. Supp. 289 (D. Colo. 1969) (“ Keyes II ”), order reinstated, 396 U.S. 1215 (1969) (Brennan, J., in chambers) (“ Keyes III ”); Keyes v. School Dist. No. 1, 313 F. Supp. 61 (D. Colo. 1970) (“Keyes IV ”); supplemented, Keyes v. School Dist. No. 1 , 313 F. Supp. 90 (D. Colo. 1970) (“ Keyes V ”), aff’d in part and rev’d in part , 445 F.2d 990 (10th Cir. 1971) (“ Keyes VI” ), cert. granted, 404 U.S. 1036 (1972) and cert. denied sub. nom. School Dist. No. 1 v. Keyes , 413 U.S. 921 (1973), modified and remanded, 413 U.S. 189 (1973) (“Keyes VII ”), reh’g denied, 414 U.S. 883 (1973), on remand, 368 F. Supp. 207 (D. Colo. 1973) (“Keyes VIII

”) and 380 F. Supp. 673 (D. Colo. 1974) (“ Keyes IX ”), aff’d in part and rev’d in part , 521 F.2d 465 (10th Cir. 1975) (“ Keyes X ”), cert. denied, 423 U.S. 1066 (1976); Keyes v. School Dist. No. 1 , 474 F. Supp. 1265 (D. Colo. 1979) (“Keyes XI

”); Keyes v. School Dist. No. 1 , 540 F. Supp. 399 (D. Colo. 1982) (“Keyes XII

”); Keyes v. School Dist. No. 1 , 576 F. Supp. 1503 (D. Colo. 1983) (“Keyes XIII

”); Keyes v. School Dist. No. 1 , 609 F. Supp. 1491 (D. Colo. 1985) (“Keyes XIV

”); Keyes v. School Dist. No. 1 , No. C-1499 (D. Colo. Oct. 29, 1985) (“Keyes XV

”) (Order for Further Proceedings); Keyes v. School Dist No. 1 , 653 F. Supp. 1536 (D. Colo. 1987) (“Keyes XVI ”); Keyes v. School Dist. No. 1 , 670 F. Supp. 1513 (D. Colo. 1987) (“Keyes XVII ”), aff’d, 895 F.2d 659 (10th Cir. 1990) (“Keyes XVIII

”), cert. denied, 498 U.S. 1082 (1991); Keyes v. Congress of Hispanic Educators , 902 F. Supp. 1274 (D. Colo. 1995) (“ Keyes XIX ”). -7- I. BACKGROUND This case originated in June of 1969, when children in the Denver public schools challenged the School District’s deliberate policy of racial segregation. See Keyes v. School Dist. No. 1 , 303 F. Supp. 279 (D. Colo. 1969). Since that challenge, this case has evolved through several st ages of litigation during which this and other courts have rendered numerous opinio ns. 2 A brief summary of the history of the case provides necessary context. From 1960 through 1969, the School District establi shed and maintained de jure segregation in the Denver public schools. Keyes XIX , 902 F. Supp. 1274,3 The Supreme Court stated: “[W]here plaintiffs prove that the school

authorities have carried out a systematic program o f segregation affecting a substantial portion of the students, schools, teach ers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual system.” Keyes VII, 413 U.S. at 201. On remand, the district court conducted a second trial and concluded: “The Supreme Court’s viewpoint based on the record before it is that the Denver school system is a dual system. There can be no doubt as to its view . . . .” Keyes VIII, 368 F. Supp. at 210. -8- 1276 (D. Colo. 1995). In 1969 and 1970, the district court found that the School District had engaged in seven specific de jure segregative acts by attempting to maintain predominantly white schools in the Park Hi ll neighborhood. See Keyes
XIX , 902 F. Supp. 1274, 1278 (D. Colo. 1995) (citing Keyes I, 303 F. Supp. 279, 282-85 (D. Colo. 1969); Keyes II, 303 F. Supp. 289, 295 (D. Colo. 1969); Keyes
IV , 313 F. Supp. 61 (D. Colo., 1970)). As a conseque nce, it ordered a desegregation plan for the Park Hill area schools i n 1970. Keyes V , 313 F. Supp. 90, 96-99 (10th Cir. 1970). On appeal, the United States Supreme Court broadene d the scope of the district court’s jurisdiction. Instead of limiting the desegregation plan to the Park Hill area, the Supreme Court determined that the en tire Denver school system was a dual system 3 requiring desegregation. Keyes VII, 413 U.S. 189, 201-02 (1973). Thus, in 1974, the district court ordered a city-wi de desegregation plan. See Keyes XIX

, 902 F. Supp. at 1279. This court, however, found that plan inadequate. Keyes X

, 521 F.2d 465, 475-79 (10th Cir. 1975). Finally i n 1976, the-9-

parties agreed to a remedial plan which was approve d and implemented. See Keyes XIX, 902 F. Supp. at 1279. The remedial plan required, among other things, pairing elementary schools, changing attend ance zones, establishing percentage ratios of Anglo to minority students, an d transporting students by bus to implement the plan. Id. Following the implementation of the remedial plan, the School District passed Resolution 2233 to direct continued desegreg ation efforts. In 1984, the School District moved to terminate the court’s juri sdiction. Keyes XIV, 609 F. Supp. 1491, 1518-20 (D. Colo. 1985). The district court denied the motion, finding the School District had not yet achieved un itary status and that Resolution 2233 was too vague. Id. In an effort to remedy the vagueness of Resolution 2233, the School District passed Resolution 2314 in 1987. Resolutio n 2314 called for continuing teacher assignment and student transfer policies th at enhanced integration and required annual reports of progress toward achievin g a unitary school district. The School District again sought to terminate juris diction and the court again refused. Instead, the court authorized existing pl ans to remedy the vestiges of past discrimination and ordered a meeting with coun sel to issue a permanent injunction against the School District. Keyes XVI, 653 F. Supp. 1536, 1539-40, 42 (D. Colo. 1987). Still later that same year, th e court entered an Interim4 Appellants argued the district court should not completely terminate its

jurisdiction. Although Appellants agreed that “the indicia of de jure segregation ha[d] been removed from student assignments, faculty, staff, transportation, extra curricular activities and facilities,” they request ed the court retain residual control over the School District on the ground that vestige s of the dual system remained in the form of racial disparity in discipline, drop -out rates, and gifted and talented programs. -10- Decree, superseding all prior remedial actions. Keyes XVII, 670 F. Supp. at 1516- 17. That decree diminished the court’s jurisdictio n by freeing the School District to make changes in its existing plans to accommodat e new situations. Id. On appeal, this court affirmed the denials of the m otions to terminate jurisdiction, but invalidated some portions of the Interim Decree which merely required the School District to obey the law. See Keyes XIX , 902 F. Supp. at 1281; Keyes XVIII, 895 F.2d 659, 666-69 (10th Cir. 1990). The Schoo l District thus remained under the district court’s jurisdicti on to remedy past discrimination, but could develop its own plans to do so. See Keyes XIX , 902 F. Supp. at 1281. In 1992 the School District moved again to terminat e the district court’s jurisdiction. See id. at 1275. This time Appellants requested the courtto rule on the constitutionality of Colorado’s Busing Clause b efore it decided whether to terminate jurisdiction. 4 The Busing Clause, Article IX, Section 8 of the C olorado Constitution, provides in pertinent part that no sc hool pupil shall “be assigned or transported to any public educational institution f or the purpose of achieving racial balance.” Appellants asserted that after te rmination of the court’s-11-

jurisdiction, the Busing Clause would impede the Sc hool District’s ability to implement Resolutions 2233 and 2314 and other polic ies adopted to change pupil assignments. Keyes XIX , 902 F. Supp. at 1275. The School District agreed with that claim and stip ulated that the School District’s plans would conflict with the Busing Cla use. Id. at 1275, 1283. Appellants also requested a determination of the co nstitutionality of certain sections of two Colorado statutory provisions: The Colorado Public Schools of Choice Act, Colo. Rev. Stat. § 22-36-101(3)(d), and the Colorado Charter Schools Act, Colo. Rev. Stat. § 22-30.5-104(3). The Attorn ey General of the State of Colorado was allowed to intervene and defend the va lidity of the Busing Clause. Keyes XIX

, 902 F. Supp at 1275. In a comprehensive opinion based on evidence receiv ed during hearings on August 23-25, 1994, the district court granted the School District’s motion to terminate jurisdiction, stating the School Districthad complied with the desegregation decrees and that past de jure segregation had been eliminated to the extent practicable. Id. at 1275, 1285, 1308-09. Additionally, the distric t court found that the School District’s existing policies did not conflict with the Busing Clause. Id. at 1285. In dicta, the court passed upon the issu e of the constitutionality of the Busing Clause itself, indi cating that it is consistent with the 14th Amendment. Id. The district court stated that its consideration of the5 After the district court’s decision was issued in 1 995, Appellants made a

Motion for Clarification pursuant to Fed. R. Civ. P . 52(b). Specifically, Appellants requested clarification regarding whethe r the district court had determined the School District could or could not m aintain its existing plans in light of the Busing Clause. In denying the motion, the district court stated that its opinion “resolved the only question properly presen ted on the record before it regarding the validity of the Busing Clause under t he United States Constitution. To extend the findings and conclusions in the manne r suggested would violate the prohibition against rendering advisory opinions.”

6 The district court was correct to refuse to address the constitutionality of the Public Schools of Choice Act and the Charter Sc hools Act, and we likewise do not address them in this opinion. For the same reason this court does not have jurisdiction to determine the constitutionality of the Busing Clause, we cannot pass upon the constitutionality of the Public Schoo ls of Choice Act or the Charter Schools Act. As is further elucidated below, the o nly justiciable issue before the -12- Busing Clause issue was “to guide the District upon termination of . . . jurisdiction.” Id. at 1275. The district court did not decide whethe r the Colorado Schools of Choice Act and the Charter Schools Act a re valid under the Fourteenth Amendment to the United States Constitution, statin g only: “Comment on each [of the state and federal statutory requirements wh ich the School District must now follow] is inappropriate, and this court may no t give advisory opinions.” Id.
at 1285. It is from the district court’s decision that Appel lants now appeal. Appellants do not, however, appeal the termination of jurisdiction. They instead argue that the district court’s opinion was ambiguo us 5 and, to the extent that the issue was actually decided, appeal any determinatio n that the Busing Clause, the Public Schools of Choice Act, and the Charter Schoo ls Act are constitutional. 6district court was whether or not to terminate juri sdiction. Any additional

discussion of the constitutionality of either the B using Clause or Colorado statutes is merely advisory “to guide the district upon termination of . . . jurisdiction.” Keyes XIX at 1275. Such “guidance” is dicta.

-13- II. ANALYSIS This appeal presents serious issues concerning the court’s jurisdiction. Under Article III, Section 2 of the United States C onstitution, federal courts are courts of limited jurisdiction. Superimposed upon the specified subject matter of federal court jurisdiction is the general limitatio n of that jurisdiction to cases or controversies. See U.S. Const. art. III, § 2; United States National Bank of Oregon v. Independent Insur. Agents of America , 508 U.S. 439, 446 (1993). The constitutional case or controversy requirement for federal court jurisdiction in turn includes the necessity of justiciability, the very issue before the court in this appeal. See Flast v. Cohen , 392 U.S. 83, 95 (1968). The Memorandum Opinion and Order of the district co urt elaborately provides the context for consideration of this court’s jurisdiction under Article III and the referenced restrictions on that jurisdictio n. Both the format and content of the district court’s opinion is instructive. Th e format includes three sections: “History;” “The Future;” and “Findings of Fact,” an alyzing the status of the School District as of the August, 1994 hearing. Keyes XIX , 902 F. Supp. at 1276, 1282, 1286. While there is necessary overlap in th e various sections of the-14-

district court’s opinion, it essentially divides th is case and the desegregation of the School District into the past, the present, and the future. Those time frames are critical in this court’s consideration of juris diction. The district court was charged with the obligation to determine whether the School District had complied in good faith with the court’s various desegregation decrees, had eliminated to the extent practicable t he vestiges and effects of its past discriminatory acts, and had thereby altered t he Denver schools from a segregated dual system to unitary status. See Board of Educ. v. Dowell , 498 U.S. 237, 245-50 (1991). As a consequence, it was neces sary to analyze the present in light of the past. The district court resolved the issues in favor of the School District. The district court further held that the pupil assignment plan in place at the time of the hearing did not violate the Busing Clause. Keyes XIX , 902 F. Supp at 1285. The court held that the School District’s motivation in implementing the plan was the eradication of segregation vestiges, r ather than the achievement of racial balance, which would be prohibited by the Bu sing Clause. Id. Beyond addressing the past and present, the distric t court considered the Busing Clause in the future. Having resolved that the School District’s pupil assignment plan did not conflict with the Colorado Busing Clause, the court nevertheless unnecessarily opined that the clause w as consistent with the7 The district court stated: “The Busing Clause is pr eceded by a prohibition

on the use of race or color in making any distincti on or classification of pupils. That is entirely consistent with the 14th Amendment .” Keyes XIX , 902 F. Supp. at 1285.

8 In their Opening Brief, Appellants state: “The dis trict court, over the limited objections of the plaintiffs and plaintiffs -intervenors, granted the School District’s Motion to Terminate Jurisdiction and iss ued a final Judgment dismissing the case. No parties are appealing from that determination.” Appellant Br. at 6 (citation omitted).

9 Rather than specifically appealing the latter deter mination, Appellants argue that it is unclear whether the district courtfound there was a conflict between the School District’s policies and the Busi ng Clause and ask this court to -15- Fourteenth Amendment. Id. 7 The court also opined that the Busing Clause and related education statutes will provide challenges to the School District and will be fodder for future litigation. Id. at 1283. The district court, however, chose not to comment further on the effect or applicability o f federal or state statutes, premising its reticence on the prohibition of advis ory opinions. Id. at 1285.
A. RIPENESS Adhering to the district court’s past, present and future format, we address Appellants’ claims. Specifically, Appellants only challenge the district court’s dicta concerning the future. Appellants do not cha llenge any of the court’s rulings with respect to the present. They neither challenge the district court’s decision to terminate jurisdiction, 8 nor do they appear to challenge the district court’s statement that the School District’s polici es in effect at the time of the August, 1995 hearing did not conflict with the Busi ng Clause. 9 Appellants’ sole“resolve the ambiguity.” Appellant Reply Br. at 12 . We have difficulty

understanding the thrust of this argument, in lightof the district court’s unequivocal statement: “The pupil assignment plan in effect at the time of the August, 1994 hearing does not violate the Busing Cl ause because it was not adopted for the purpose of achieving racial balance .” Keyes XIX , 902 F. Supp. at 1285. -16- request is that this court resolve whether the Busi ng Clause is constitutional, an issue for the future. The case or controversy requirement of Article III admonishes federal courts to avoid “premature adjudication” and to abs tain from “entangling themselves in abstract disagreements.” Abbott Lab. v. Gardner , 387 U.S. 136, 148 (1967). “[T]he doctrine of ripeness is intende d to forestall judicial determinations of disputes until the controversy is presented in clean-cut and concrete form.” Trierweiler v. Croxton & Trench Holding Corp. , 90 F.3d 1523, 1545 (10th Cir. 1996) (quoting New Mexicans for Bill Richardson v. Gonzales , 64 F.3d 1495, 1499 (10th Cir. 1995) (citations and quo tations omitted)). Ripeness is a question of law, reviewed de novo

. See New Mexicans for Bill Richardson v. Gonzalez , 64 F.3d 1495, 1499 (10th Cir. 1995) (citing Powder River Basin Resource Council v. Babbitt , 54 F.3d 1477, 1483 (10th Cir. 1995)). As a jurisdictional prerequisite, ripeness may be e xamined by this court sua sponte

. See Metropolitan Wash. Airports Auth. v. Citizens f or the Abatement of Aircraft Noise, Inc. , 501 U.S. 252, 265 n.13 (1991). The resolution of ripeness10 The School District sought “to remove [the Busing C lause] as a possible

obstacle to terminating jurisdiction over the Distr ict and to clarify what the District’s duties would be once jurisdiction was te rminated.” The School District acknowledged in its brief that it is now satisfied that by terminating jurisdiction and stating that there was no conflict between any extant policies and the Busing Clause, the district court’s opinion resolved both matters. -17- “requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court co nsideration.” Abbott , 387 U.S. at 149. This court must therefore apply the ripene ss factors of fitness and hardship to the sole issue appealed, the constituti onality of the Busing Clause. Appellants and the School District requested that t he district court resolve the constitutionality of the Busing Clause in orderto guide the School District for the future after the termination of jurisdiction. 10 The parties essentially stipulated to the existence of a conflict between the School D istrict’s policies and the Busing Clause in order to receive a ruling on the c onstitutionality of the clause. The parties, however, cannot create a case or contr oversy simply by agreement. See Wilson v. Glenwood Intermountain Properties, In c., 98 F.3d 590, 593 (10th Cir. 1996) (finding “parties cannot confer subject matter jurisdiction on the courts by agreement”). Appellants did not challenge an extant School Distr ict policy, nor did they claim the Busing Clause caused the School District to refrain from adopting a specific policy. Rather, they requested the distri ct court to render an opinion in a11 During oral arguments, Timothy M. Tymkovich, Solici tor General for the

State of Colorado, acknowledged that the decision t o terminate jurisdiction could have been made without a discussion of the constitu tionality of the Busing Clause: The Court: Could the district court in your view ha ve terminated jurisdiction without passing on the cons titutional questions? Mr. Tymkovich: Yes. In fact we argued--that was ourlead argument below to Judge Matsch. We thought that a future problem of the Busing Clause on Denver School District’s po st- Keyes conduct was a case for another day, so we asked Judge Matsc h not to rule on the constitutionality. We said it was irrelevant t o the finding of unitary status . . . .

. . . . Mr. Tymkovich: I think the court made that clear i n his response on the motion to clarify because he said t hat for him to comment on the post-decree conduct of the school di strict would be advisory--and by that I mean dicta. -18- vacuum. Any statement by the district court in res ponse, however, was necessarily dicta. 11 Constitutional analysis requires the application of the challenged provision in a case or controversy. Appellants’ failure to appeal rulings relevant to the present and failure to reference a conflict between the Busing Clause and an actual or proposed School District policy deprives the analysis of a case or controversy within which to test the clause’s const itutionality. See Wilson , 98 F.3d at 594 (because plaintiffs did not appeal dist rict court’s denial of claims of religious discrimination in housing, a case or cont roversy surrounding gender12 The following colloquy between this court and Mr. T ymkovich occurred

at oral argument:

The Court: Are you then saying on behalf of the State of Colorado that Colorado does not believe that the pr esent programs in effect which involve busing in the Denver School Di strict constitute -19- discrimination claims was lacking). As a consequen ce, the issue is not fit for a judicial resolution and lacks ripeness. See Abbott , 387 U.S. at 149. Appellants argue that the Busing Clause prevents o r has prevented the School District and individual schools from institu ting any potentialvoluntary integration plans based on race. They argue that t his exemplifies a violation of the Equal Protection clause of the Fourteenth Amend ment by interdicting benefits, such as integration plans, to citizens when those b enefits are based solely on race. Appellants, however, make no effort to establish th at any particular school desires to implement voluntary integration plans, let alone that any school has been deterred by the Busing Clause from implementing suc h a plan. This court cannot speculate whether any school will propose an integr ation plan, what the plan might be, and thus whether such a plan is prohibite d by Colorado’s Busing Clause. Appellants have failed to present this cou rt with any specific integration proposal to juxtapose with the Busing Clause. More over, the State of Colorado has expressly and unequivocally conceded that it ha s no plans to challenge the School District’s existing policies, thus confirmin g the absence of a case or controversy. 12busing for the purpose of achieving racial balance? Mr. Tymkovich: Yes, your Honor. I want to be very clear about that because I think what we’re talking aboutis a potential issue for another day as to whether the school dist rict has impermissibly intruded on the commands of the Busin g Clause. . . . We don’t believe that the school district today is violating those provisions of law. . . .

. . . . . . . The Court: My question now is, under the prac tices and policies now in effect, the State of Colorado, are they committing that they will not challenge those under the state constitutional provision prohibiting busing for the purpose of ach ieving racial balance? Mr. Tymkovich: As we understand those policies today, your Honor, the answer is “no.” -20- This court may not speculate about future conflicts between the Busing Clause and the School District’s policies, but rath er must focus its analysis on any controversy as it exists today. See Sierra Club v. Yuetter , 911 F.2d 1405, 1416 (10th Cir. 1990) (holding court must avoid “decisio n where the harm [is] contingent upon uncertain or speculative future adm inistrative action”). Because Appellants cannot demonstrate a present controversy , we lack jurisdiction to hear this appeal.
B. STANDING For many of the same reasons this case is not ripe for review, Appellants do not have standing to appeal. Standing is a thresho ld, jurisdictional issue. Doyle v. Oklahoma Bar Ass’n , 998 F.2d 1559, 1566 (10th Cir. 1993). “[A] plain tiff must maintain standing at all times throughout the litigation for a court to retain13 Although not reflected in the record, the School Di strict has begun

dismantling aspects of its prior plans which involv ed race-based pupil assignment or transportation. Appellants suggest that the onl y reason the School District has begun dismantling its existing policies is because of a perceived conflict with the Busing Clause. They offer no support for this reas oning, and Michael H. Jackson, counsel for the School District, expressly denied at oral argument any nexus between the Busing Clause and the dismantling of any plan or program: -21- jurisdiction.” Powder River , 54 F.3d at 1485 (finding that when plaintiff no longer has injury, Article III requirements of case or controversy are no longer met). To have standing, plaintiffs “must have suffered an ‘injury-in-fact.’” Clajon Production Corp. v. Petera , 70 F.3d 1566, 1572 (10th Cir. 1995) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992)). This injury-in-fact element in turn requires plaintiffs to demonstrate “an invasion of a legally protected interest which is (a) concrete and partic ularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan , 504 U.S. at 560 (citations and quotations omitted). The impediments to ripeness are equally impediments to standing. This court’s focus is on past and present injury; possib le future injury is insufficient to create standing. See Lujan , 504 U.S. at 560-61. Appellants have failed to demonstrate that the School District or any school has withdrawn policies, instituted policies, or refrained from withdrawing or instituting policies as a result of the Busing Clause. 13 Consequently, any injury flowing from the application ofThe Court: Does the existence of the Busing Clause cause the

district to feel compelled to dismantle any remedia l plan in effect? Mr. Jackson: I do not believe so. The Court: So you’re representing that the distric t feels no compulsion from the presence of the Busing Clause, either on its face or as applied? Mr. Jackson: That’s correct. The Court: So any fears that Mr. Greiner or his cl ients have would not be fears based on the present, they would be fears based upon the as yet, inchoate, future? Mr. Jackson: I believe that’s true and I believe t hat the arguments of Mr. Greiner and Mr. Tymkovich this mor ning confirm that.

14 Appellants’ final argument in their attempt to create standing is indeed creative. They argue that any statements about the constitutionality of the Busing Clause in the district court’s opinion could be use d by the State of Colorado and the School District under the doctrines of claim pr eclusion or issue preclusion to prevent further litigation over the Busing Clause. Claim preclusion bars claims when “the prior action involved identical claims an d the same parties or their privies.” Frandsen v. Westinghouse Corp. , 46 F.3d 975, 978 (10th Cir. 1995). On the other hand, issue preclusion can bar future litigation even when the parties are not identical. Id. It is true that the district court’s opinion contai ns a discussion regarding the constitutionality of the Busing Clause. That discu ssion, however, was not essential to any issue properly before the districtcourt. Because the court’s statements regarding the constitutionality of the B using Clause were not essential to the decision to terminate jurisdiction, the sole issue before the court, that language was dicta. See Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1184 (10th Cir. 1995). As such, it presents no threat under t he doctrines of claim or issue preclusion. -22- the Busing Clause constitutes possible future injury, not past or present injury. Appellants thus lack standing. 14-23- III. CONCLUSION For the foregoing reasons, this appeal is DISMISSED for lack of jurisdiction.