                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3242
                         ___________________________

E.L., a minor, by La’Sheika White the Mother, legal guardian, and next friend of E.L.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                    Voluntary Interdistrict Choice Corporation

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                              Submitted: April 5, 2017
                                Filed: July 27, 2017
                                  ____________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       On behalf of E.L., her minor son, La’Shieka White sued the Voluntary
Interdistrict Choice Corporation (VICC), alleging its race-based, school-transfer
policy violates the Equal Protection Clause of the Fourteenth Amendment. The
district court1 granted VICC’s motion to dismiss. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

                                          I.

       E.L. is an African-American boy entering fifth grade. From kindergarten
through third grade, he lived in the City of St. Louis, attending Gateway Science
Academy, a charter school there. During third grade, his family moved to St. Louis
County, in the Pattonville School District. His mother asked Gateway to enroll him
in fourth grade even though they no longer lived in the city limits. Gateway declined,
providing a copy of its policy that African-American students who live outside the
city are not eligible for enrollment.

       E.L. sued, alleging equal protection violations. He did not name Gateway as
a defendant, but sued only VICC, a non-profit corporation created by a 1999
settlement agreement in the long-standing Liddell litigation. The federal lawsuit,
filed in 1972 by African-American parents, alleged St. Louis operated segregated
schools in violation of the Equal Protection Clause. In 1983, a district court approved
a desegregation settlement agreement. See Liddell v. Board of Educ. of City of St.
Louis, State of Mo., 567 F. Supp. 1037 (E.D. Mo. 1983), aff’d in part, rev’d in part,
731 F.2d 1294 (8th Cir. 1984) (en banc). The agreement—funded by the defendants
(the state of Missouri and the City Board of Education)—provided capital
improvements of city schools, establishment of city magnet schools, and a voluntary
interdistrict transfer plan. The transfer plan, at issue here, allowed African-American
students living in the city to transfer to the county, and white students living in the
county to transfer to the city.



      1
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

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       In 1996, the state of Missouri moved for a declaration that St. Louis no longer
operated a segregated, dual public school system. The court appointed a settlement
coordinator to negotiate a resolution. In 1999, the parties settled again. See Liddell
v. Board of Educ. of City of St. Louis, 1999 WL 33314210, at *9 (E.D. Mo. Mar. 12,
1999) (approving settlement agreement). The 1999 agreement established VICC to
administer the voluntary interdistrict transfer program, including: (1) arranging
transportation for students in the transfer program; (2) distributing funding to
participating schools; and (3) disseminating information about eligibility
requirements (taken primarily from the 1983 agreement). The 1999 agreement
permits only the sending and receiving districts to modify the eligibility requirements.

      The district court granted VICC’s motion to dismiss on four alternative
grounds: (1) E.L. lacks standing; (2) he fails to state a claim; (3) the 1999 agreement
precludes his claims; and (4) the 1999 agreement releases VICC from liability. E.L.
appeals.

                                          II.

       This court reviews “a decision dismissing a complaint for lack of standing de
novo, construing the allegations of the complaint, and the reasonable inferences
drawn therefrom, most favorably to the plaintiff.” Miller v. City of St. Paul, 823 F.3d
503, 506 (8th Cir. 2016). “Article III standing is a threshold question in every federal
court case.” United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1013 (8th
Cir. 2003). Standing requires three elements: (1) “injury in fact”; (2) “a causal
connection between the injury and the conduct complained of”; and (3) the likelihood
“that the injury will be ‘redressed by a favorable decision.’” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992), quoting Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 38 (1976).




                                          -3-
                                           A.

       An injury in fact requires that a plaintiff demonstrate he or she is “able and
ready” to apply for an educational opportunity and “a discriminatory policy prevents
[them] from doing so on an equal basis.” Gratz v. Bollinger, 539 U.S. 244, 262
(2003), quoting Northeastern Fla. Chapter, Associated Gen. Contractors of Am. v.
Jacksonville, 508 U.S. 656, 666 (1993). “It is well established that intent may be
relevant to standing in an equal protection challenge.” Id. at 261. Under Gratz,
individuals must show that they intend to apply to a school in order to have standing
to challenge a discriminatory admissions policy. See id. at 260-61. See also Shea v.
Kerry, 796 F.3d 42, 50 (D.C. Cir. 2015) (“Gratz controls our inquiry. Like [the Gratz
plaintiff], [the plaintiff here] alleges that he possessed an intent to apply to the
position in question.”); Carroll v. Nakatani, 342 F.3d 934, 942 (9th Cir. 2003)
(applying Gratz to require “a legitimate intention to apply”).

       E.L. claims two injuries in fact by denials of the opportunity to attend Gateway
and city magnet schools. The first—denial of the opportunity to attend Gateway—is
an injury in fact. E.L. attended there for four years while living in the city. See §
160.410.1(1) RSMo (requiring charter schools to enroll “[a]ll pupils resident in the
district in which it operates”). The complaint alleges that after moving to the county,
he sought to continue his enrollment, but was denied. He is thus “able and ready” to
enroll, but prohibited from doing so by an allegedly “discriminatory policy.” Gratz,
539 U.S. at 262.

       The second—denial of the opportunity to attend city magnet schools—is not
an injury in fact. While the complaint references magnet schools and VICC’s transfer
policy for them, it does not allege E.L. is interested in enrolling. To the contrary, his
complaint suggests that he is interested in attending only Gateway. His motion for
a preliminary injunction confirms this, seeking “to permit E.L. to continue his
academic success at Gateway.” Citing Gratz, E.L. argues that whether he “‘actually

                                          -4-
applied’ for admission as a transfer student [to a magnet school] is not determinative
of his ability to seek injunctive relief in this case.” See id. at 260-61. This court
agrees. However, he must still show some “intent to apply.” Id. at 261. The
mention of magnet schools and the generalized grievance about VICC’s transfer
policy for them is insufficient to allege an injury in fact.

                                           B.

       “[T]here must be a causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not before
the court.” Lujan, 504 U.S. at 560 (alterations incorporated) (internal quotation
marks omitted). “When the injury alleged is the result of actions by some third party,
not the defendant, the plaintiff cannot satisfy the causation element of the standing
inquiry.” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 935 (8th Cir.
2012).

      E.L.’s complaint alleges VICC denied him the opportunity to attend Gateway
on an equal basis.2 This allegation is insufficient to confer standing because it
erroneously assumes VICC’s policy, not Gateway’s, was the reason he was denied
admission. Throughout briefing and argument, E.L. states: “Because VICC’s transfer
policy is the only one that discriminates on the basis of race, it logically follows that
VICC’s policy causes E.L.’s injury—unequal treatment on the basis of race.” But
Gateway’s policy also differentiates based on race: “If address is not found on the


      2
       E.L.’s brief states: “Gateway administrators told La’Shieka that VICC’s
transfer policy prevented E.L. from attending the school because of his race.” This
statement is not supported by the complaint. It states only that he was denied
admission “because of his race” and “Gateway officials gave La’Shieka a handout
explaining the enrollment requirements.”

                                          -5-
city site or the zip code is not listed above and the student identifies as African-
American, you cannot enroll the student.” And Gateway provided a copy of this
policy, not VICC’s, to support the denial of admission. VICC’s policy—which was
never cited by Gateway as a reason for denying admission—does not apply to charter
schools, which are “independent public school[s],” governed by statute. See §§
160.400-160.425 RSMo. Thus, VICC has no administrative or supervisory authority
over them.

       Still, E.L. argues VICC caused his injury because state law requires charter
schools to enroll any student eligible to transfer under the voluntary transfer program.
See § 160.410.1(2) RSMo (requiring charter schools to enroll “Nonresident pupils
eligible to attend a district’s school under an urban voluntary transfer program.”).
Stated differently, E.L. thinks § 160.410.1(2) legally imposes VICC’s policy on
charter schools. See Bennett v. Spear, 520 U.S. 154, 168-70 (1997).

         Even if VICC’s policy applies to charter schools under § 160.410.1(2), VICC
still would not cause E.L.’s injury. VICC does not make or adopt rules or regulations
for charter schools; Gateway and the state of Missouri do. The state of Missouri tells
Gateway it must admit “[n]onresident pupils eligible to attend a district’s school
under an urban voluntary transfer program.” § 160.410.1(2) RSMo. Assuming §
160.410.1(2) incorporates VICC’s policy into state law governing charter schools, the
state of Missouri, not VICC, causes the injury. See Miller, 688 F.3d at 935-36
(holding plaintiff lacked standing to sue a toxicology lab for “erroneous probation
violation reports” because the State of Minnesota, not the lab, caused the injury
because it “chose the particular test, ultimately established and implemented the
cut-off levels for the probationers it tested, and interpreted the test results”).
Similarly, Gateway, not VICC, decided to follow § 160.410.1(2) rather than §
160.410.3, which prohibits charter schools from limiting admission based on race.
See RSMo § 160.410.3 (“A charter school shall not limit admission based on race
. . . .”). And Gateway, not VICC, denied E.L. admission. E.L.’s argument—that

                                          -6-
VICC’s transfer policy, by operation of § 160.410.1(2), prevents charter schools from
enrolling African-American county residents—is without merit. See Bennett, 520
U.S. at 168-69 (holding that where the injury complained of results from the
“independent action of some third party not before the court,” standing can still exist,
but only if the injury is “produced by determinative or coercive effect” of the party
sued).

     E.L.’s alleged injury is not “fairly traceable” to VICC. Lujan, 504 U.S. at
560-61.

                                  *******
      E.L. lacks standing. The judgment is affirmed.
                      ______________________________




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