United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2651

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Daniel Pucket, in his own capacity;

Amy Pucket, in her own capacity;

Luke Pucket, by and through his

parents and guardians, Daniel and

Amy Pucket; Benjamin Pucket, by

and through his parents and

guardians, Daniel and Amy Pucket,

Appellants,

v.

Hot Springs School District No. 23-

2; Hot Springs School Board,

Appellees,

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Lawrence Long; in his official

capacity as Attorney General of

South Dakota,

Intervenor Defendant -

Appellee.

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Appeal from the United States

District Court for the 

District of South Dakota.

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 Submitted: March 14, 2008 

 Filed: May 23, 2008 

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1

The Honorable Karen E. Schreier, Chief Judge, United States District Court

for the District of South Dakota.

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Before RILEY, GRUENDER and SHEPHERD, Circuit Judges. 

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GRUENDER, Circuit Judge. 

The Hot Springs School District 23-2 and Hot Springs School Board (“School

District”) discontinued busing students of Bethesda Lutheran School (“Bethesda”),

a private religious school located within the School District’s boundaries. Daniel,

Amy, Luke and Benjamin Pucket (“Puckets”), parents of students and students

enrolled at Bethesda, filed an action under 42 U.S.C. § 1983, arguing that the School

District’s termination of busing services for Bethesda students violated the First and

Fourteenth Amendments of the United States Constitution. The Puckets argue that the

School District unconstitutionally deprived them of busing services because it relied

on two allegedly unconstitutional provisions of the South Dakota Constitution to

terminate the busing services. South Dakota Attorney General Lawrence Long

(“State”) intervened to defend the state constitution provisions. The district court1

granted the summary judgment motions of the School District and the State. On

appeal we conclude that the Puckets lack standing to bring this lawsuit, and we affirm

the dismissal.

I. BACKGROUND

Prior to the 2002-2003 school year, the School District provided bus

transportation to students attending Bethesda who lived along existing School District

bus routes. On March 21, 2002, the School District received a letter from Linda Joski,

an account executive at Arthur J. Gallagher & Co., the administrator for the School

District’s automobile liability insurance policy. The letter informed the School

District that “[i]t has come to our attention that Hot Springs School District is
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transporting children for a local parochial school.” The letter requested that the

School District discontinue busing as soon as possible and no later than the beginning

of the 2002-2003 school year because “this activity would not be considered ‘school

sponsored’” and thus “create[d] a liability situation which [was] beyond the scope”

of the School District’s insurance policy. Beth Spitzer, Bethesda’s principal, learned

of the insurance problem from a School District employee.

In July 2002, the Association of School Boards (“Association”), of which the

School District was a member, received a letter from its counsel, who was also

counsel for the School District, addressing the issue of insurance coverage for school

districts providing busing for private-school children. In the letter, counsel noted that

in South Dakota Attorney General Opinion 92-04 (“Opinion 92-04”) the Attorney

General determined that a public school district lacked the statutory authority to

provide busing for children attending a religious school and questioned whether such

an arrangement would be constitutional even if statutory authority permitted it.

Counsel concluded that an insurance company could deny coverage to a school district

busing private-school children. The School District also received a copy of this letter.

The School District decided to discontinue busing Bethesda students in

accordance with its insurance administrator’s request by the start of the 2002-2003

school year. On October 31, 2002, the School District’s attorney contacted the South

Dakota Attorney General to request a formal opinion on the question of whether a

school district was authorized to transport private-school children. On November 6,

2002, the Attorney General’s office responded by stating that, “this issue has been

addressed in official Opinion No. 92-04.”

The South Dakota Attorney General prepared Opinion 92-04 in 1992 in

response to a question by another South Dakota school district regarding the legality

of a public school district’s providing busing to students of a church-operated

preschool. Opinion 92-04 concluded that school districts could not provide
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simultaneous busing to public and nonpublic school students based on South Dakota

statutes that regulate busing, particularly South Dakota Codified Laws §§ 13-24-20

and 13-29-1. Section 13-24-20 states that

The school board may grant the use of school facilities, computers,

motor vehicles, or land belonging to the school district for any purposes

which it considers advisable as a community service for such

compensation as it determines. . . . The use may not interfere with school

activities. Any person or persons or public body using such school

facilities, computers, motor vehicles, or land is responsible to the school

district for any and all damages that may be caused by reason of the use

or occupancy.

Under § 13-29-1

The school board of any school district may acquire, own, operate, or

hire buses for the transportation of students to and from its schools either

from within or without the district or for transportation to and from

athletic, musical, speech, and other interscholastic contests in which

participation is authorized by the school board. 

While Opinion 92-04 noted that “[n]othing on the face of [§ 13-24-20] would prohibit

simultaneous public and private use of a bus,” the Attorney General concluded that

“when the entire scheme on public and private use of school buses is considered, it is

my opinion that simultaneous public and private use of a school bus is not permissible

under the existing statute.” Opinion 92-04 also expressed “serious doubts” as to

whether, even if busing was allowed under South Dakota statutes, it would be

permissible under the South Dakota Constitution Article VI, § 3, which provides that

“[n]o money or property of the state shall be given or appropriated for the benefit of
2

The Puckets refer to these provisions of the South Dakota Constitution as the

“Blaine Amendments,” because they were modeled after a United States constitutional

amendment proposed by Congressman James G. Blaine in the late nineteenth century.

Br. of Appellant at 5-7. The Puckets argue that the Blaine Amendments violate the

United States Constitution because they had a discriminatory purpose, targeting

religious minorities, particularly Catholics and Lutherans. Id. at 42-43. However,

because we conclude that the Puckets lack standing, we do not reach their argument

that the Blaine Amendments unconstitutionally disqualify them from the government

benefit of busing based on their religious status.

3

Both Hagedorn and Spitzer kept their own sets of detailed notes on the events

that occurred regarding the busing, and both referred to these notes as their “busing

logs.”

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any sectarian or religious society or institution” and Article VIII, § 16, which states

that “[n]o appropriation of lands, money or other property or credits to aid any

sectarian school shall ever be made by the state.”2

At a December 9, 2002 meeting and in response to Spitzer’s repeated requests,

the School District’s board passed a motion stating: “The district would not allow

Bethesda Lutheran School students bus service because it was declared

unconstitutional by the South Dakota Attorney General and the loss of the district

catastrophic insurance coverage if bus service is provided.” As directed by the

Puckets’ counsel, Spitzer specifically requested that the School District’s motion

include a statement that the board was relying on the Attorney General’s opinion that

public schools’ busing of private-school children would violate the South Dakota

Constitution.

Following that meeting, on January 22, 2003, Vern Hagedorn, the School

District’s superintendent, recorded in his “busing log”3

 that the School District had

offered to help Bethesda introduce legislation to allow busing for Bethesda students,

“but all she [Spitzer] wanted was a statement that we wouldn’t transport their

students.” The next day Spitzer recorded in her busing log that the counsel for the
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Association and the School District had called her and “want[ed] to pursue legislative

action,” but that she responded by telling him that “there was going to be a lawsuit.”

Shortly thereafter, the South Dakota legislature passed South Dakota Codified

Law § 13-29-1.2, which was effective immediately when the governor signed the bill

on March 3, 2003. It stated in relevant part:

School districts may provide transportation to nonpublic school students

if no additional public funds are expended to provide the transportation.

No school district, however, is required under this section to provide

transportation to nonpublic school students.

On February 28, 2003, the School District learned that, in anticipation of the

enactment of § 13-29-1.2, busing Bethesda students would no longer impact the

School District’s liability insurance. Although the Puckets did not request that the

School District reinstate busing for Bethesda students after § 13-29-1.2 became

effective, the School District did so on May 16, 2003. 

However, on April 23, 2003, prior to the reinstatement of busing, the Puckets

filed this lawsuit against the School District under 42 U.S.C. § 1983 for its failure to

bus Bethesda students. The Puckets claimed that the decision not to bus Bethesda

students violated the First and Fourteenth Amendments of the United States

Constitution. Their complaint, which was served on the School District on May 8,

2003, alleged that the School District violated the Equal Protection and Free Exercise

Clauses of the Constitution by denying Bethesda students busing based on their

religion, that the School District violated the Free Speech Clause of the Constitution

by denying Bethesda students busing because it teaches from a religious viewpoint,

and that the School District violated the Establishment Clause of the Constitution by

denying Bethesda students busing based on the South Dakota Constitution provisions,

which it claimed was “applied to disfavor all faiths deemed ‘sectarian.’” The State

intervened to defend the constitutionality of the South Dakota Constitution provisions.

The School District and the State filed motions for summary judgment.
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Granting the motions for summary judgment of the School District and the

State, the district court found that the Puckets lacked standing to sue prior to March

3, 2003, when § 13-29-1.2 became effective, because school districts did not have

legal authority to bus private-school children under §§ 13-24-20, 13-29-1 and 13-29-

1.1. Because the School District lacked legal authority to bus private-school children,

the district court determined that the Puckets could not show that the School District’s

actions caused an injury-in-fact. While the district court held that the Puckets had

standing after March 3, 2003, it also concluded that no reasonable jury could find that

the School District’s failure to reinstate busing between March 3 and May 16, 2003,

was based on the South Dakota Constitution provisions. Therefore, the court declined

to decide whether the South Dakota Constitution provisions violated the United States

Constitution. The court, however, did find that the School District’s policy of refusing

to bus Bethesda students did not violate the First and Fourteenth Amendments to the

Constitution.

The Puckets appeal the district court’s decision, arguing the district court erred

in concluding that they did not have standing before March 3, 2003; that no

reasonable jury could find that the School District’s failure to reinstate busing between

March 3 and May 16, 2003, was based on the South Dakota Constitution provisions;

and that the School District’s policy did not violate the First and Fourteenth

Amendments. The Puckets also urge us to find that the South Dakota Constitution

provisions violate the United States Constitution. We conclude that the Puckets did

not have standing either before or after March 3, 2003. 

II. DISCUSSION

The district court granted summary judgment, which we review de novo “and

may affirm on any basis supported by the record.” Wilson v. Spain, 209 F.3d 713, 716

(8th Cir. 2000). Standing, however, is a jurisdictional requirement, and thus “can be

raised by the court sua sponte at any time during the litigation.” Delorme v. United

States, 354 F.3d 810, 815 (8th Cir. 2004).
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Under Article III of the United States Constitution, federal courts may only

adjudicate actual cases and controversies. DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 342 (2006). “Article III standing . . . enforces the Constitution’s case-orcontroversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11

(2004). “The core component of the requirement that a litigant have standing to

invoke the authority of a federal court is an essential and unchanging part of the caseor-controversy requirement of Article III.” DaimlerChrysler, 547 U.S. at 342 (internal

quotations omitted).

“To show Article III standing, a plaintiff has the burden of proving: (1) that he

or she suffered an ‘injury-in-fact,’ (2) a causal relationship between the injury and the

challenged conduct, and (3) that the injury likely will be redressed by a favorable

decision.” Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2005) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). To have standing a plaintiff must

demonstrate more than simply a “generalized grievance.” United States v. Hays, 515

U.S. 737, 743 (1995). The injury must be “concrete,” not “conjectural” or

“hypothetical.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).

“Typically . . . the standing inquiry requires careful judicial examination of a

complaint’s allegations to ascertain whether the particular plaintiff is entitled to an

adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737, 752

(1984). We must view these requirements in light of the Article III “notion that

federal courts may exercise power only in the last resort, and as a necessity, and only

when adjudication is consistent with a system of separated powers and the dispute is

one traditionally thought to be capable of resolution through the judicial process.” Id.

(internal quotations and citation omitted) (alteration omitted). 
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A. August 2002 to March 3, 2003

The district court concluded that the Puckets lacked standing to assert a claim

based on the period from August 2002, when the School District discontinued busing,

until March 3, 2003, when § 13-29-1.2, which specifically gave school districts

discretion to bus private-school children, became effective. The district court

concluded that prior to the enactment of § 13-29-1.2, public school districts were not

authorized to bus private-school children under South Dakota law. Thus, the court

concluded that the Puckets lacked standing to sue as they suffered no injury-in-fact

based on the School District’s decision to discontinue busing Bethesda students,

because the School District did not have statutory authority to do so. On appeal the

Puckets argue that the district court erred by misinterpreting the South Dakota statutes

at issue and by failing to consider the legislative history of § 13-29-1.2.

“[S]chool boards are creatures of statute with limited powers. Therefore, a

school board cannot exercise power unless it is expressly granted or necessarily

implied by statute.” In re Writ of Certiorari as to Wrongful Payments of Attorney

Fees Made by Brookings Sch. Dist. Sch. Bd., 668 N.W.2d 538, 542 (S.D. 2003).

“[A]ny power sought to be exercised must be found within the four corners of the

statute under which they proceed.” Sunnywood Common Sch. Dist. No. 46 of

Minnehaha County v. County Bd. of Educ. of Minnehaha County, 131 N.W.2d 105,

110 (S.D. 1964). When powers are necessarily implied from a statute, the implication

“should be clear and undoubted, and the party claiming through [it] should be able to

point [it] out with certainty and precision. . . . Implications spring from the necessities

of some power actually conferred, and not from notions of what would be convenient

or expedient under particular circumstances.” State ex rel. Bell v. Bd. of County

Comm’rs of Beadle County, 300 N.W. 832, 834 (S.D. 1941) (quotation omitted).

When determining the scope of a school board’s authority, we must examine

the statutes that govern school boards. We begin with the plain language of each
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statute and try to “ascertain the intent of the legislature by looking at the language of

the statute itself and giving it its plain, ordinary and commonly understood meaning.”

In re M & S Grading, Inc., 457 F.3d 898, 901 (8th Cir. 2006) (quotation omitted). It

is well established that “courts do not interpret statutes in isolation, but in the context

of the corpus juris of which they are a part.” Branch v. Smith, 538 U.S. 254, 281

(2003). “The correct rule of interpretation is, that if divers statutes relate to the same

thing, they ought all to be taken into consideration in construing any one of them.”

United States v. Freeman, 44 U.S. 556, 564 (1845).

As the district court correctly explained, § 13-29-1 does not provide authority

for the School District to bus Bethesda students. Under § 13-29-1, school districts

may bus students “to and from its schools” or for “athletic, musical, speech, and other

interscholastic contests.” (Emphasis added). Bethesda is not one of the School

District’s schools, and Bethesda students are not being bused to athletic, musical,

speech or other interscholastic contests. Thus, we conclude that the plain language

of § 13-29-1 does not authorize the School District to bus Bethesda students.

The Puckets also argue that the district court erred in its interpretation of §§ 13-

24-20 and 13-29-1.1. Section 13-24-20 states, in relevant part, that “[t]he school

board may grant the use of school facilities, computers, motor vehicles, or land

belonging to the school district for any purposes which it considers advisable as a

community service for such compensation as it determines. . . . The use may not

interfere with school activities.” Section 13-29-1.1 provides that “[a] school board

may allow nonprofit civic organizations or other government entities to use vehicles

owned by the school district to transport persons to various activities deemed by the

school board to be in the public interest.” 

Both statutes authorize school boards to grant or allow others, including

nonprofit organizations, to “use” a school district’s vehicles. “Use” is defined as “to

put or bring into action or service.” Webster’s New World Dictionary of the American
4

We note that here we are discussing a school district’s ability to provide busing

for private-school children from their homes to their schools. We are not discussing,

or deciding, a school district’s ability to provide busing for private-school children to

and from interscholastic contests.

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Language 1564 (2d College ed. 1984). Riding as a passenger in a vehicle does not

constitute putting the vehicle into action or service. Accordingly, applying the

ordinary meaning of “use,” we conclude that §§ 13-24-20 and 13-29-1.1 merely

authorize the School District to allow a nonprofit organization actually to operate the

School District’s motor vehicles.

The Puckets argue that “use” by a nonprofit, nonpublic school includes students

enrolled at that school riding on buses operated by drivers employed by the School

District. However, this broad interpretation of “use” is not consistent with the

command that any power sought to be exercised by a school district must be either

expressly granted or necessarily implied by the statute. See In re Writ of Certiorari

as to Wrongful Payments of Attorney Fees Made by Brookings Sch. Dist. Sch. Bd., 668

N.W.2d at 542. Such a reading also is inconsistent with the language of other South

Dakota statutes regulating busing. Section 13-29-1 authorizes school districts to

provide “transportation” of students to and from its schools and interscholastic

contests, and § 13-29-1.2 now authorizes school districts to provide “transportation”

to nonpublic school students to and from their schools. Neither of those statutes

employ the word “use.” When intending to enable a school district to provide busing

services to its students,4

 the South Dakota legislature notably chose the phrase

“provide transportation.” If the legislature intended § 13-24-20 or § 13-29-1.1 to

authorize school districts to provide busing services to private-school children, it

would have expressed that intent by using the word “transportation.” The fact that the

legislature instead chose the word “use” indicates that the legislature did not intend

for either of these statutes to permit school districts to provide busing services for

private-school children. Rather, the plain language of §§ 13-24-20 and 13-29-1.1
5

We believe that the South Dakota Supreme Court would agree with our

analysis of the South Dakota busing statutes. See Brown v. Egan Consol. Sch. Dist.

#50-2, 449 N.W.2d 259, 261 (S.D. 1989) (noting that “use by the school district to

transport students to and from school and interscholastic activities” was not the same

as “the granting of use of buses” to nonprofit organizations and that § 13-29-1

authorized the school district’s use of buses to transport its own students to and from

school or for interscholastic contests”) (emphasis added).

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authorizes a school district to allow other nonprofit groups to “use” its buses,

employing their own drivers.5

Finally, the Puckets argue that we should consider the legislative history of §

13-29-1.2, which they claim supports their argument. The Puckets rely on statements

of two legislators regarding the passage of § 13-29-1.2 to support their claim that the

legislature passed § 13-29-1.2 only to clarify and confirm that school districts already

had the authority to bus private-school children. However, when “statutes are

straightforward and clear, legislative history and policy arguments are at best

interesting, at worst distracting and misleading, and in neither case authoritative.” N.

States Power Co. v. United States, 73 F.3d 764, 766 (8th Cir. 1996). As the district

court noted, if school districts had the authority to transport private-school children

to and from school, the legislature would not have needed to enact § 13-29-1.2. See

Nat’l Farmers Union Prop. & Cas. Co. v. Universal Underwriters Ins. Co., 534

N.W.2d 63, 65 (S.D. 1995) (“The legislature does not intend to insert surplusage in

its enactments.”). Accordingly, South Dakota law did not authorize the School

District to bus Bethesda students until § 13-29-1.2 became effective on March 3,

2003.

The Puckets cannot show that the School District’s alleged discrimination

caused their injury because the School District did not have the statutory authority to

bus the Puckets or any other Bethesda students before March 3, 2003. See, e.g.,

Donaghy v. City of Omaha, 933 F.2d 1448, 1455 (8th Cir. 1991) (holding that police
6

The district court disregarded Opinion 92-04 because some of the statutes upon

which the Opinion was based were subsequently repealed or amended. The Puckets

contend that the district court erred by disregarding Opinion 92-04 and argue that

Opinion 92-04 compels us to interpret § 13-24-20 as authorizing busing because it

noted that “[n]othing on the face of that statute would prohibit simultaneous public

and private use of a bus.” However, South Dakota Attorney General opinions are not

binding. See Brim v. South Dakota Bd. of Pardons & Paroles, 563 N.W.2d 812, 816

(S.D. 1997). Moreover, even if we were bound or chose to consider Opinion 92-04,

it ultimately concluded that a public school was not authorized by statute to bus

private-school children, which supports our conclusion.

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officer lacked standing to challenge city’s race-conscious employment decisions

because, even if the city had only promoted based on rank order, he would not have

been promoted based on his rank); Grahek v. City of St. Paul, 84 F.3d 296, 299 (8th

Cir. 1996) (citing Donaghy in finding that the plaintiff lacked standing to sue because

he would not have been referred for openings for which he applied even if the police

chief had not applied an affirmative-action plan); Wilson v. Glenwood Intermountain

Props., 98 F.3d 590, 593 (10th Cir. 1996) (“[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.”); see also 13 Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, §

3531.5, at 452 (2d ed. 1984) (“Causation is most easily rejected when a plaintiff

challenges the denial of a benefit on one ground, and it is shown that the plaintiff is

in any event ineligible for the benefit on some other ground.”). Therefore, we agree

with the district court that the Puckets lack standing to challenge the School District’s

decision to discontinue busing Bethesda students prior to March 3, 2003.6
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B. March 3, 2003 to May 16, 2003

After March 3, 2003, § 13-29-1.2 specifically authorized the School District to

bus Bethesda students, but it did not require the School District to do so. The law

stated that “[s]chool districts may provide transportation to nonpublic school students

if no additional public funds are expended to provide the transportation.” S.D.

Codified Law § 13-29-1.2 (emphasis added). 

As noted above, a plaintiff may not simply allege a generalized grievance, but

he or she must instead demonstrate a concrete injury. In analyzing standing, the

Supreme Court has repeatedly found that a plaintiff lacks standing to sue when the

plaintiff cannot demonstrate specific injuries. See, e.g., Lujan, 504 U.S. 555; Warth

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

In Warth, various plaintiffs, including a home builders’ association, challenged

allegedly discriminatory zoning ordinances. 422 U.S. at 495. The Supreme Court

held that members of the home builders’ association lacked standing because “[t]he

complaint refer[red] to no specific project of any of its members that [was] currently

precluded either by the ordinance or by respondents’ action in enforcing it.” Id. at

516. The complaint did not claim that any member had applied for a building permit

or variance for any current project, and there was “no indication that respondents . .

. delayed or thwarted any project currently proposed by Home Builders’ members, or

that any of its members . . . [took] advantage of the remedial processes available under

the ordinance.” Id. The Court concluded that “insofar as the complaint [sought]

prospective relief, Home Builders . . . failed to show the existence of any injury to its

members of sufficient immediacy and ripeness to warrant judicial intervention.” Id.

The Court also rejected the claims of another plaintiff when “neither the complaint nor

any materials of record indicate[d] that any member of Housing Council . . . [took]

any step toward building housing in Penfield.” Id. at 517. Thus, the Court concluded
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that the plaintiffs lacked standing when they failed to demonstrate even a mere

application for a building permit or zoning variance. Id. at 516.

Likewise in Lujan, the Supreme Court held that simply demonstrating past

travels to certain international destinations and the desire to return there without

specific travel plans failed to support standing for two members of the Defenders of

Wildlife who were challenging a rule promulgated by the Secretary of the Interior.

504 U.S. at 562-64. In the Endangered Species Act of 1973 (“ESA”), Congress

passed a “citizen-suit” provision, allowing a private citizen to sue to enjoin anyone

alleged to be in violation of the ESA. Id. at 571-72. The members of the Defenders

of Wildlife were challenging a rule promulgated by the Secretary of the Interior

interpreting § 7 of the ESA, which required federal agencies to consult with the

Secretary of the Interior to ensure that projects they funded did not threaten

endangered species. Id. at 557-58. The Secretary interpreted § 7 of the ESA to apply

only to actions taken in the United States or on the high seas, and not to actions taken

in foreign nations. Id. at 559. The two members of the Defenders of Wildlife claimed

that this interpretation would increase the rate of extinction of endangered and

threatened species. Id. at 562. The members stated in affidavits that they had

previously visited Egypt and Sri Lanka and intended to do so again with hopes of

observing the native endangered animals in their natural habitats. Id. at 563-64. The

Court found that these two members’ profession of their intent to return “without any

description of concrete plans, or indeed even any specification of when the some day

[would] be [did] not support a finding of the ‘actual or imminent injury’ required to

establish standing.” Id. at 564.

Other courts also have found that if a plaintiff is required to meet a precondition

or follow a certain procedure to engage in an activity or enjoy a benefit and fails to

attempt to do so, that plaintiff lacks standing to sue because he or she should have at

least taken steps to attempt to satisfy the precondition. See, e.g., T.L.J. v. Webster,

792 F.2d 734, 739 n.5, 740 (8th Cir. 1986) (finding that plaintiffs lacked standing to
7

At oral argument, the following exchange occurred:

Q: Why did your clients not just go back after March 3, go back to the

district – to the School District – say, you have statutory authority now,

will you bus? Go in front of a board meeting, do whatever you had to do

to get the issue before the board instead of suing them. Why didn’t you

just go say, are you going to bus?

A: Well, they waited 75 days, waited and waited, and no word came

from the school district.

* * *

Q: Why didn’t they go to the School District and simply ask them, we’d

like you to bus our kids, are you going to do it or not?

A: It was understood, your honor. . . .

Q: Why isn’t it reasonable to just think, well they’re not asking for it,

they must not want it anymore?

A: Well they didn’t ask for it because the board had not reversed their

[sic] decision. (Emphasis added).

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challenge procedures to obtain a bypass to required parental consent for an abortion

when they had never attempted to obtain the judicial bypass); Gilles v. Davis, 427

F.3d 197, 208 (3d Cir. 2005) (holding that a campus speaker lacked standing to

challenge the university’s permit policy because the speaker never applied for a

permit); Interstate Commerce Comm’n v. Appleyard, 513 F.2d 575, 577 (4th Cir.

1975) (concluding that a trucker lacked standing to challenge an injunction against

operating without a certificate or permit from the ICC when he failed to show that he

ever applied for a permit or that he could not obtain one).

Here, there is no evidence that the Puckets actually requested that the School

District reinstate busing after § 13-29-1.2 became effective on March 3, 2003. The

Puckets’ counsel confirmed at oral argument before this court that the Puckets did not

request that busing be resumed after § 13-29-1.2 became effective, instead assuming

that the School District understood what the Puckets wanted without a specific

request.7

 In her deposition, Spitzer acknowledged that she never asked anyone from
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the School District to reinstate busing of Bethesda students after March 3, 2003, and

that she did not have the Puckets request that the School District resume busing either.

Puckets’ App. at 283. 

However, we may find a plaintiff has standing even if he or she has failed to

take steps to satisfy a precondition if the attempt would have been futile. See, e.g.,

Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 944 n.2 (1982) (holding that

plaintiffs had standing to challenge Nebraska water laws even though they had not

applied for a permit because the permit clearly would not have been granted and the

application would have been futile); S.D. Mining Ass’n v. Lawrence County, 155 F.3d

1005, 1008-09 (8th Cir. 1998) (holding that plaintiffs had standing to challenge a

county ordinance that prohibited issuance of new permits for surface metal mining

even though they had not applied for a permit because any application would have

been futile); Bach v. Pataki, 408 F.3d 75, 82-83 (2d Cir. 2005) (finding that a Virginia

resident had standing to challenge a New York statute prohibiting issuance of a

concealed-weapon permit even though he had not applied for a permit because he had

been told that he was ineligible and applying for a permit would have been futile).

Here, though, there was no allegation or evidence that a request by the Puckets

to reinstate busing of Bethesda students after § 13-29-1.2 became effective would

have been futile. In fact, the record indicates that the School District made it clear that

it was willing to resume busing for the Bethesda students as soon as it was authorized

to do so and as soon as the insurance issue was resolved. Spitzer’s busing log

demonstrates repeated instances of the efforts of Hagedorn and others associated with

the School District to reinstate busing. She recorded that Hagedorn told her that the

majority of the School District’s board wanted to continue busing and that Hagedorn

was working to resolve the insurance issue. Even while passing the official motion

to discontinue busing, which occurred only at Spitzer’s request, the board members

clearly expressed their support for Bethesda students, with one member noting that
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“all of you[] should know that there isn’t a single one of us sitting at this table that

doesn’t want your kids picked up.”

Even after it stopped busing Bethesda students, the School District actively

sought legislation authorizing it to resume busing them. Spitzer noted in her busing

log that Tom Harmon, the School District’s attorney, told her that the School District

was interested in proposing legislation to resolve the issue and thought it could be

resolved by the end of February 2003 and that Hagedorn said he would help support

legislation authorizing busing when it was proposed. At the December 9, 2002 school

board meeting, one board member suggested that those in attendance contact the state

legislature to get the legislation introduced. Hagedorn said that he had told Spitzer

that he would write letters of support and offered to go to a hearing before the

legislature to support any proposed legislation. The School District’s board even

offered to contact specific legislators who could sponsor the bill. The School

District’s expressed support, continuous efforts to resolve the busing issue and

willingness to work to get legislation passed so that it could bus Bethesda’s students

all indicate that a request to resume busing after § 13-29-1.2 became effective almost

certainly would have been successful and would not have been futile.

The Puckets argue that the School District should have known that they still

wanted busing or should have understood that their request was ongoing. In fact, their

counsel claimed at oral argument that “they didn’t ask for it because the board had not

reversed their decision,” but the School District had no reason to believe that the

Puckets wanted busing to resume without a specific request. The Puckets’ counsel

offered that it was “understood” that they wanted busing resumed. However, by

proffering a nebulous claim that the School District should have “understood” that the

Puckets wanted busing resumed without actually requesting it, the Puckets “failed to

show the existence of any injury . . . to warrant judicial intervention.” See Warth, 422

U.S. 516. This is especially true in light of the School District’s ongoing expression

of its desire to resume busing as soon as it was authorized to do so.
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In fact, the evidence leads us to believe that the Puckets may well have

deliberately failed to request that the School District reinstate busing in an attempt to

create a case or controversy for the overriding purpose of challenging the

constitutionality of the South Dakota Constitution provisions. Spitzer, at the behest

of the Puckets’ attorney, requested that the motion terminating busing include a

statement that the School District was discontinuing busing based on the South Dakota

Constitution. Despite being aware of the School District’s willingness to further the

legislative efforts to allow its busing of Bethesda students, neither Spitzer nor the

Puckets even inquired about the School District’s willingness to resume busing after

the new law became effective. In fact, upon hearing that the School District wanted

to pursue legislative action to quickly resolve the busing problem, instead of offering

to work with the School District to get legislation passed, Spitzer responded by stating

that “there was going to be a lawsuit.” On appeal, the Puckets dedicated nearly half

of their argument solely to attacking the South Dakota Constitution provisions. In

light of the strong evidence that the School District would have resumed busing if the

Puckets had requested it, as it ultimately did shortly after being served with this

lawsuit on May 8, 2003, we cannot sanction the Puckets’ attempt to manufacture a

lawsuit designed to challenge the South Dakota Constitution provisions without

having met the essential elements of standing. Therefore, the Puckets lack standing

to challenge the failure to reinstate busing between March 3 and May 16, 2003,

because they failed to take even the simple step of requesting that the School District

resume busing, which we cannot conclude would have been futile.

III. CONCLUSION

Accordingly, we affirm the dismissal of this lawsuit because the Puckets lack

standing.

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