Wilfred Keyes, Individually and on Behalf of Christi Keyes,a Minor; Christine A. Colley, Individually and on Behalf Ofkris 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 Ofgregory L. Wade, a Minor; Edward J. Starks, Jr.,individually and on Behalf of Denise Michelle Starks, Aminor; Josephine Perez, Individually and on Behalf Ofcarlos 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 Onbehalf of Sarah S. Weiner, a Minor, Plaintiffs-appellants,andcongress of Hispanic Educators, an Unincorporatedassociation; Montbello Citizens' Committee, Inc.; Arturoescobedo and Joanne Escobedo, Individually and on Behalf Oflinda Escobedo and Mark Escobedo, Minors; Eddie R. Cordova,individually and on Behalf of Renee Cordova, and Barbaracordova, Minors; Robert Pena, Individually and on Behalf Oftheresa K. Pena and Craig R. Pena, Minors; Robert L.hernandez and Margaret M. Hernandez, Individually and Onbehalf of Randy R. Hernandez; Roger L. Hernandez, Russellc. 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 Onbehalf of Ronald C. Montoya, a Minor; John E. Dominguez Andesther E. Dominguez, Individually and on Behalf of John E.dominguez, Mark E. Dominguez and Michael J. Dominguez,minors; John H. Flores and Anna, Individually and on Behalfof Theresa Flores, Joni A. Flores and Luis E. Flores,minors; Moore School Community Association, and Mooreschool Lay Advisory Committee; Citizens Association Forneighborhood Schools, an Unincorporated Association, and Onbehalf of All Others Similarly Situated, Plaintiffs-intervenors, v. School District No. 1, Denver, Colorado; the Board Ofeducation, School District Number One, Denver, Colorado;william C. Berge, Individually and As President, Board Ofeducation, 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,individually and As Members, Board Education, Schooldistrict Number One, Denver, Colorado; Robert D. Gilberts,individually and As Superintendent of Schools, Schooldistrict Number One, Denver, Colorado, Defendants-appellees,mr. and Mrs. Douglas Barnett, Individually and on Behalf Ofjade Barnett, a Minor; Mr. and Mrs. Jack Pierce,individually and on Behalf of Rebecca Pierce and Cynthiapierce, Minors; Jane Walden, Individually and on Behalf Ofjames 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 Ofgregory Anderson, Cindy Anderson, Jeffery Anderson and Tammyanderson, Minors; Mr. and Mrs. Charles Simpson,individually and on Behalf of Douglas Simpson, a Minor; Mr.and Mrs. Patrick Mccarthy, Individually and on Behalf Ofcassandra Mccarthy, a Minor; Richard Klein, Individuallyand on Behalf of Janet Klein, a Minor; Mr. and Mrs. Frankrupert, Individually and on Behalf of Michael Rupert Andscott Rupert, Minors; State of Colorado, Ex Rel. Galenorton, Defendants-intervenors,susan Tarrant, Wade Potter, Deborah Potter, Daniel J. Patch,marilyn Y. Patch, Chris Andres, Ronald Griego,dora Griego and Randy French, Intervenors, 119 F.3d 1437 (10th Cir. 1997)

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. Appellants Wilfred Keyes and others¹  ("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 provisions. See Colo.Rev.Stat. §§ 22-36-101(3), 22-30.5-104(3). Those issues, however, are not justiciable. As a consequence, there is no case or controversy as required by Article III, Section 2 of the United States Constitution, and this appeal is dismissed for lack of jurisdiction.

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 stages of litigation during which this and other courts have rendered numerous opinions.²  A brief summary of the history of the case provides necessary context.

From 1960 through 1969, the School District established and maintained de jure segregation in the Denver public schools. Keyes v. Congress of Hispanic Educators, 902 F. Supp. 1274, 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 Hill neighborhood. See Keyes, 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 consequence, it ordered a desegregation plan for the Park Hill area schools in 1970. Keyes V, 313 F. Supp. 90, 96-99 (10th Cir. 1970).

On appeal, the United States Supreme Court broadened 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 entire Denver school system was a dual system³  requiring desegregation. Keyes VII, 413 U.S. 189, 201-02, 93 S. Ct. 2686, 2694-95, 37 L. Ed. 2d 548 (1973). Thus, in 1974, the district court ordered a city-wide 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 in 1976, the parties agreed to a remedial plan which was approved and implemented. See Keyes XIX, 902 F. Supp. at 1279. The remedial plan required, among other things, pairing elementary schools, changing attendance zones, establishing percentage ratios of Anglo to minority students, and 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 desegregation efforts. In 1984, the School District moved to terminate the court's jurisdiction. 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 unitary 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. Resolution 2314 called for continuing teacher assignment and student transfer policies that enhanced integration and required annual reports of progress toward achieving a unitary school district. The School District again sought to terminate jurisdiction and the court again refused. Instead, the court authorized existing plans to remedy the vestiges of past discrimination and ordered a meeting with counsel to issue a permanent injunction against the School District. Keyes XVI, 653 F. Supp. 1536, 1539-40, 1542 (D. Colo. 1987). Still later that same year, the court entered an Interim Decree, superseding all prior remedial actions. Keyes XVII, 670 F. Supp. at 1516-17. That decree diminished the court's jurisdiction by freeing the School District to make changes in its existing plans to accommodate new situations. Id.

On appeal, this court affirmed the denials of the motions 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 School District thus remained under the district court's jurisdiction 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 terminate the district court's jurisdiction. See id. at 1275. This time Appellants requested the court to rule on the constitutionality of Colorado's Busing Clause before it decided whether to terminate jurisdiction.⁴  The Busing Clause, Article IX, Section 8 of the Colorado Constitution, provides in pertinent part that no school pupil shall "be assigned or transported to any public educational institution for the purpose of achieving racial balance." Appellants asserted that after termination of the court's jurisdiction, the Busing Clause would impede the School District's ability to implement Resolutions 2233 and 2314 and other policies adopted to change pupil assignments. Keyes XIX, 902 F. Supp. at 1275.

The School District agreed with that claim and stipulated that the School District's plans would conflict with the Busing Clause. Id. at 1275, 1283. Appellants also requested a determination of the constitutionality 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 Attorney General of the State of Colorado was allowed to intervene and defend the validity of the Busing Clause. Keyes XIX, 902 F. Supp. at 1275.

In a comprehensive opinion based on evidence received during hearings on August 23-25, 1994, the district court granted the School District's motion to terminate jurisdiction, stating the School District had 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 district 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 issue of the constitutionality of the Busing Clause itself, indicating that it is consistent with the 14th Amendment. Id. The district court stated that its consideration of the Busing Clause issue was "to guide the District upon termination of ... jurisdiction." Id. at 1275. The district court did not decide whether the Colorado Schools of Choice Act and the Charter Schools Act are valid under the Fourteenth Amendment to the United States Constitution, stating only: "Comment on each [of the state and federal statutory requirements which the School District must now follow] is inappropriate, and this court may not give advisory opinions." Id. at 1285.

It is from the district court's decision that Appellants now appeal. Appellants do not, however, appeal the termination of jurisdiction. They instead argue that the district court's opinion was ambiguous⁵  and, to the extent that the issue was actually decided, appeal any determination that the Busing Clause, the Public Schools of Choice Act, and the Charter Schools Act are constitutional.⁶ 

This appeal presents serious issues concerning the court's jurisdiction. Under Article III, Section 2 of the United States Constitution, federal courts are courts of limited jurisdiction. Superimposed upon the specified subject matter of federal court jurisdiction is the general limitation 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, 113 S. Ct. 2173, 2178, 124 L. Ed. 2d 402 (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, 88 S. Ct. 1942, 1949-50, 20 L. Ed. 2d 947 (1968).

The Memorandum Opinion and Order of the district court elaborately provides the context for consideration of this court's jurisdiction under Article III and the referenced restrictions on that jurisdiction. Both the format and content of the district court's opinion is instructive. The format includes three sections: "History;" "The Future;" and "Findings of Fact," analyzing 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 the various sections of the district court's opinion, it essentially divides this 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 jurisdiction.

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 the vestiges and effects of its past discriminatory acts, and had thereby altered the Denver schools from a segregated dual system to unitary status. See Board of Educ. v. Dowell, 498 U.S. 237, 245-50, 111 S. Ct. 630, 635-38, 112 L. Ed. 2d 715 (1991). As a consequence, it was necessary 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, rather than the achievement of racial balance, which would be prohibited by the Busing Clause. Id.

Beyond addressing the past and present, the district 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 was consistent with the 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 of federal or state statutes, premising its reticence on the prohibition of advisory opinions. Id. at 1285.

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 challenge 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 policies in effect at the time of the August, 1995 hearing did not conflict with the Busing Clause.⁹  Appellants' sole request is that this court resolve whether the Busing 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 abstain from "entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967). " [T]he doctrine of ripeness is intended 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 quotations omitted)).

Ripeness is a question of law, reviewed de novo. See New Mexicans for Bill Richardson v. Gonzales, 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 examined by this court sua sponte. See Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n. 13, 111 S. Ct. 2298, 2306 n. 13, 115 L. Ed. 2d 236 (1991). The resolution of ripeness "requir [es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott, 387 U.S. at 149, 87 S. Ct. at 1515. This court must therefore apply the ripeness factors of fitness and hardship to the sole issue appealed, the constitutionality of the Busing Clause.

Appellants and the School District requested that the district court resolve the constitutionality of the Busing Clause in order to 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 District's policies and the Busing Clause in order to receive a ruling on the constitutionality of the clause. The parties, however, cannot create a case or controversy simply by agreement. See Wilson v. Glenwood Intermountain Properties, Inc., 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 District policy, nor did they claim the Busing Clause caused the School District to refrain from adopting a specific policy. Rather, they requested the district court to render an opinion in a vacuum. Any statement by the district court in response, 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 constitutionality. See Wilson, 98 F.3d at 594 (because plaintiffs did not appeal district court's denial of claims of religious discrimination in housing, a case or controversy surrounding gender discrimination claims was lacking). As a consequence, the issue is not fit for a judicial resolution and lacks ripeness. See Abbott, 387 U.S. at 149, 87 S. Ct. at 1515-16.

Appellants argue that the Busing Clause prevents or has prevented the School District and individual schools from instituting any potential voluntary integration plans based on race. They argue that this exemplifies a violation of the Equal Protection clause of the Fourteenth Amendment by interdicting benefits, such as integration plans, to citizens when those benefits are based solely on race. Appellants, however, make no effort to establish that any particular school desires to implement voluntary integration plans, let alone that any school has been deterred by the Busing Clause from implementing such a plan. This court cannot speculate whether any school will propose an integration plan, what the plan might be, and thus whether such a plan is prohibited by Colorado's Busing Clause. Appellants have failed to present this court with any specific integration proposal to juxtapose with the Busing Clause. Moreover, the State of Colorado has expressly and unequivocally conceded that it has no plans to challenge the School District's existing policies, thus confirming the absence of a case or controversy.¹² 

This court may not speculate about future conflicts between the Busing Clause and the School District's policies, but rather must focus its analysis on any controversy as it exists today. See Sierra Club v. Yeutter, 911 F.2d 1405, 1416 (10th Cir. 1990) (holding court must avoid "decision where the harm [is] contingent upon uncertain or speculative future administrative action"). Because Appellants cannot demonstrate a present controversy, we lack jurisdiction to hear this appeal.

For many of the same reasons this case is not ripe for review, Appellants do not have standing to appeal. Standing is a threshold, jurisdictional issue. Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir. 1993). " [A] plaintiff must maintain standing at all times throughout the litigation for a court to retain 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, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)). This injury-in-fact element in turn requires plaintiffs to demonstrate "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S. Ct. at 2136 (citations and quotations omitted).

The impediments to ripeness are equally impediments to standing. This court's focus is on past and present injury; possible future injury is insufficient to create standing. See Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136-37. 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 of the Busing Clause constitutes possible future injury, not past or present injury. Appellants thus lack standing.¹⁴ 

For the foregoing reasons, this appeal is DISMISSED for lack of jurisdiction.