MARCUS, Circuit Judge:
Plaintiffs appeal the district court's orders dismissing for lack of standing their race discrimination claims against officials of the University of Georgia System. This litigation actually encompasses two distinct claims. One group of Plaintiffs — Tracy, Davis, and Green (collectively, "Tracy Plaintiffs") — is composed of unsuccessful applicants to the University of Georgia; they allege that the Defendants' freshman admissions policies impermissibly favor non-whites over whites in violation of the Equal Protection Clause and federal civil rights statutes. A second group of Plaintiffs — Wooden, Jarvis, and Bratcher (collectively, "Wooden Plaintiffs") — is composed of individuals with ties to three historically black institutions ("HBIs") in Georgia's university system; they allege that operation of the HBIs unlawfully discriminates against non-blacks. In a series of orders, the district court dismissed the claims of all of these Plaintiffs for lack of standing; the court also denied the Plaintiffs' class certification motion, based primarily on its rulings regarding standing.
Because the district court correctly determined that Plaintiffs Davis and Tracy lack standing, we affirm that portion of the district court's orders. In addition, the Wooden Plaintiffs failed to file their notice of appeal in a timely fashion, so we lack jurisdiction to consider their challenge to the district court's orders dismissing their claims. We conclude, however, that the district court erred by finding that Plaintiff
We begin by laying out the undisputed facts of the case, starting with those facts relevant to the Tracy Plaintiffs' challenge to the freshman admission policies at the University of Georgia ("UGA").
UGA is the flagship institution of Georgia's university system. Admission to UGA is competitive, and applications far exceed the number of available freshman seats. To assemble a class, the faculty admission committee, in conjunction with the admissions office, recommends a freshman admission policy each year. This policy is formally presented to UGA's president for approval, and thereafter is implemented by the admissions office.
Between 1990-1995, UGA's freshman admissions policy applied objective academic criteria differently depending upon whether an applicant characterized himself as "black" or "non-black." To be eligible for admission, an applicant had to meet certain pre-set minimums with respect to Scholastic Aptitude Test ("SAT") score, grade point average ("GPA"), and academic index ("AI").
This was the regime when plaintiff Kirby Tracy (who is white) applied for admission to UGA's Fall 1995 Class. Tracy had a GPA of 3.47 and a total SAT score of 830. Because he did not meet the minimum SAT requirement for non-blacks, UGA denied his application. It is undisputed, however, that Tracy would have been eligible for admission under the criteria applied to black applicants.
After his rejection from UGA, Tracy enrolled at Georgia College. Two years later, in 1997, he applied and won admission to UGA as a transfer student. The transfer application was filed shortly after this lawsuit was filed.
Meanwhile, UGA — concerned about the constitutionality of its dual-track admissions
For each applicant placed in the pool for further evaluation, UGA calculates a Total Student Index ("TSI"). The TSI is based on a combination of weighted academic and demographic factors. It is only at this stage that UGA, under its current policy, expressly considers an applicant's race.
Two Plaintiffs in this case sought admission under the post-1995 revised policy (Tracy, as noted above, sought admission under the superseded 1990-95 policy). Plaintiff Ashley Davis, who is white, applied for admission to the 1996 Fall freshman class at UGA. She had a 980 SAT score, a 2.94 GPA, and a 2.21 academic index. Because her academic index was below 2.30 (the cut-off to advance to the TSI stage), UGA denied her application at the initial AI stage. It therefore did not compute a TSI for her, and did not consider race in rejecting her. Davis eventually enrolled as a freshman at the University of Tennessee, where she remained at the time of summary judgment. She has disclaimed any interest in transferring to UGA, and there is no indication that she would re-apply under the freshman admissions policy.
Plaintiff Craig Green, who is white, unsuccessfully sought admission to the Fall 1997 UGA freshman class. For the 1997 freshman class, UGA required an AI of 2.50 or above to be admitted at the initial AI stage, while applicants with an AI below 2.25 were rejected at that stage. Students whose AIs were between 2.25 and 2.50 proceeded to the TSI phase of consideration. Green was among that group of applicants, with an AI of 2.39 and a SAT equivalency score of 1170-90.
In calculating a TSI score for applicants to the 1997 freshman class, UGA awarded 0.5 points under the category "Demographic
After sorting applicants under the TSI process, UGA offered admission to all candidates with a TSI score of 4.40 or higher. Applicants with a TSI score below 3.79 were rejected, while applicants whose TSI scores were between 3.79 and 4.39 proceeded on to the final ER stage. Because of the 0.5 point credit given non-white applicants, however, white applicants were effectively held to a more rigorous standard. In practice, awarding the 0.5 point credit to non-white applicants meant that white applicants needed a TSI score of at least 4.40 to be admitted at this stage, while non-white applicants needed only a 3.90. Similarly, to avoid outright rejection at the TSI phase and proceed on to the ER phase, a white applicant effectively needed a TSI score of at least 3.79, while a non-white applicant — because of the 0.5 point boost — needed only 3.29.
Green received a TSI score of 3.89, which included credits for his parents' educational level, his Georgia residency, his relatively high GPA/SAT equivalency score, and his male gender. On the basis of that score he was neither admitted nor rejected at the TSI stage, but instead went into the Edge Read pool. If Green had designated himself as non-white, his TSI score would have been 4.39 — 0.5 points higher than it was, but still just barely below the 4.40 threshold for automatic admission. Accordingly, Green would have proceeded to the ER stage regardless of whether he received a 0.5 point credit due to his race.
At the ER stage, application files were individually read by at least two members of UGA's admissions office. UGA then offered admission to all applicants with an ER score above -0.5, and denied admission to all applicants with an ER score below -0.5. Each of the two Edge Readers who reviewed Green's application gave him an ER score of -2.0, the lowest possible. Because that score was well below the -0.5 cutoff for admission, UGA denied Green's application.
Green ultimately attended Dalton College in the Fall of 1997, but in 1998 sought to transfer into UGA. UGA denied his application because he lacked the necessary credit hours to transfer to UGA from a junior college. As stated by the district court, Green intends to reapply for admission to UGA as a transfer student once he earns the requisite credit hours.
The claims of the Wooden Plaintiffs relate to an entirely different set of facts. These Plaintiffs object to Defendants' alleged failure to "desegregate" adequately three HBIs: Ft. Valley State University, Savannah State University, and Albany State University. Plaintiff Wooden, who is black, asserts that although he would have liked to enroll his daughter at nearby Savannah State, he refused to allow her to attend a segregated campus. Plaintiff Jarvis, who is white, is a former student at Ft. Valley; he alleges that the school's
Plaintiffs filed their complaint on March 3, 1997. The complaint originally named eleven individuals as Plaintiffs; all but four of those individuals (and six of the seven of the Plaintiffs participating in this appeal) are white. Named as Defendants were the Board of Regents of the University System of Georgia and the Chancellor of the system, Dr. Stephen Portch. Plaintiffs sought damages and injunctive relief on race discrimination theories under the Equal Protection Clause (via 42 U.S.C. § 1983), 42 U.S.C. § 1981, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. The Georgia branch of the NAACP, the Southern Christian Leadership Conference, and various African-American individuals later moved successfully to intervene as Defendants. Green was later added as an additional Plaintiff.
Plaintiffs eventually moved for class certification, seeking certification of an extremely broad class of persons allegedly affected by Defendants' discriminatory practices. Plaintiff Tracy moved separately for partial summary judgment on his claim. Defendants moved for summary judgment in their favor on all claims.
In an order dated January 6, 1996, the district court found that Tracy had established his claim of unlawful past discrimination, and therefore granted his motion for partial summary judgment. The court reserved ruling on the recoverability of compensatory damages, and also reserved ruling on the availability of prospective injunctive relief. In addition, the court granted Defendants' summary judgment motion with respect to Davis, finding that she lacked standing to pursue her claim. Wooden v. Board of Regents of the Univ. Sys. of Ga., 32 F.Supp.2d 1370 (S.D.Ga. 1999). Subsequently, on March 12, 1999, the district court entered summary judgment against the Wooden Plaintiffs on lack of standing grounds. On July 6, 1999, the district court rejected Green's cause of action, finding that he, like Davis, lacked standing to pursue his discrimination claims. 59 F.Supp.2d at 1318-1323. In a separate order entered on that date, the court found that Tracy had not established the prerequisites needed to obtain prospective
All of those rulings were appealed to this Court. While the appeal was pending, the Supreme Court decided a relevant case, Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999). In pertinent part, the Supreme Court explained that:
528 U.S. at 21, 120 S.Ct. at 468-69. Sua sponte, this Court on April 14, 2000, issued a decision vacating the district court's orders. As we explained:
Tracy v. Board of Regents of the Univ. Sys., 208 F.3d 1313, 1313-14 (11th Cir.2000) (per curiam).
On remand, the district court expressly considered Lesage, but eventually reinstated all of its prior rulings. The district court subsequently denied the Tracy Plaintiffs' motion for reconsideration, largely repeating the analysis set out at length in its several prior opinions.
The relevant portions of the district court's rulings may be summarized as follows. With respect to Tracy's request for prospective injunctive relief, the district court initially concluded that this request was moot because Tracy transferred to UGA in 1997 and therefore had no reason to pursue an order compelling his admission to UGA. Subsequently, after this Court's remand, the district court explained that its earlier mootness analysis was incorrect. Nevertheless, the court reinstated
With respect to Davis, the district court found that she did not suffer any injury-in-fact. It reasoned that because she was denied admission outright at the AI stage, without ever proceeding to the TSI stage, she could not establish that race was a factor in the denial of her application, and specifically could not establish that UGA's discriminatory practices made her unable to compete on an equal footing with similarly-situated non-white applicants.
With respect to Green, the court found that he lacked standing to sue on an "equal footing" theory because even though he went through the race-conscious TSI phase of UGA's admissions process, he would have been rejected regardless of whether UGA had given him racial bonus points. In the words of the district court:
59 F.Supp.2d at 1318-21 (citations omitted).
With respect to the Wooden Plaintiffs, the court found that their alleged grievances were too attenuated to constitute the "injury-in-fact" necessary to have standing. Finally, on the issue of class certification, the district court ruled that Tracy — the only Plaintiff found to have standing in the case — was not an adequate class representative because his individual request for prospective injunctive relief regarding the freshman admissions policy had become moot. The court also concluded that the need for individualized analysis of class members' claims made class treatment inappropriate. The court did not separately consider the ability of Green or any other
There can be no dispute about the proper standard of review of the district court's orders granting Defendants' motions for summary judgment and denying class certification. We review a district court's grant of summary judgment de novo, applying the same legal standards used by the district court. See, e.g., Hilburn v. Murata Elecs. N. America, Inc., 181 F.3d 1220, 1225 (11th Cir.1999). Summary judgment is appropriate where "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We "view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion" and "`all reasonable doubts about the facts [are] resolved in favor of the non-movant.'" See Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999) (quoting Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.1982) (citations omitted)).
We first address our jurisdiction over this appeal. Although Defendants state that they "believe" jurisdiction exists, they nevertheless suggest that some or all of the Plaintiffs may have filed untimely notices of appeal. We must consider our jurisdiction regardless of whether any objection is raised by the parties. See, e.g., Rembert v. Apfel, 213 F.3d 1331, 1333-34 (11th Cir.2000) ("As a federal court of limited jurisdiction, we must inquire into our subject matter jurisdiction sua sponte even if the parties have not challenged it."); University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir.1999) (jurisdiction "cannot be waived or otherwise conferred upon the court by the parties"). Upon doing so in this case, we conclude that although we have jurisdiction over the appeal of the Tracy Plaintiffs, we lack jurisdiction with respect to the Wooden Plaintiffs.
The district court, as noted above, entered its order on remand on June 16, 2000. That order reinstated the district court's prior, vacated decisions and again granted summary judgment to the Defendants on the claims now at issue. On June 30, 2000, the Tracy Plaintiffs moved for reconsideration; the Wooden Plaintiffs, notably, did not so move and did not join in the Tracy Plaintiffs' motion. The district
For a notice of appeal to be timely in a civil case where the United States is not a party, it must be filed within 30 days of the judgment or order appealed from. Fed.R.App.P. 4(a)(1). Absent the filing of a timely notice, this Court does not have jurisdiction over the appeal. See, e.g., Burnam v. Amoco Container Co., 738 F.2d 1230, 1231 (11th Cir.1984). Rule 4(a)(4), however, provides that the time for filing a notice of appeal is tolled by the filing with the district court of a timely motion to alter or amend judgment under Fed.R.Civ.P. 59. See, e.g., Great American Ins. Co. v. Rush, 670 F.2d 995, 996 (11th Cir.1982). Consequently, a notice of appeal filed within 30 days of the disposition of the Rule 59 motion is timely. See id.
Defendants suggest, but do not argue affirmatively, that the Tracy Plaintiffs' reconsideration motion did not extend the time for filing a notice of appeal because it never referred specifically to Fed.R.Civ.P. 59. We have explained, however, that "[w]hether a motion for post-judgment relief can be categorized as a motion under Rule 59 is not determined by whether the movant so labels it. Rather, the court must determine independently what type of motion was before the district court, depending upon the type of relief requested." Wright v. Preferred Research, Inc., 891 F.2d 886, 888 (11th Cir.1990). Moreover, "Rule 59 applies to motions for reconsideration of matters encompassed in a decision on the merits of a dispute." Id. The Tracy Plaintiffs' motion directly challenged the district court's June 16 order and fits within any fair conception of a reconsideration motion. Accordingly, the Tracy Plaintiffs' notice of appeal was timely because it was filed within 30 days of the denial of their motion for reconsideration.
The Wooden Plaintiffs are in a different posture. They did not join in the reconsideration motion, and thus were required to — but did not — file a notice of appeal with respect to the dismissal of their claims within 30 days of the June 16 order. Both the docket sheet and the pleadings themselves indicate that only the Tracy Plaintiffs moved for reconsideration. The first line of the motion reads:
In a footnote, the Tracy Plaintiffs explained that the Wooden Plaintiffs had no part in the motion for reconsideration.
A review of the docket sheet and the record reveals that the Wooden Plaintiffs never
Plaintiffs do not suggest, nor could they, that the Tracy Plaintiffs' motion by definition encompassed the Wooden Plaintiffs. Not only did the motion state specifically that the Wooden Plaintiffs would be moving separately, the claims of the two groups of Plaintiffs were litigated on an individual basis and are analytically distinct.
The appeals of the Tracy Plaintiffs arise out of the district court's rulings dismissing their claims for lack of standing. Article III of the United States Constitution restricts the power of federal courts to adjudicating actual "cases" and "controversies." U.S. Const. art. III, § 2, cl. 1. "This case-or-controversy doctrine fundamentally limits the power of federal courts in our system of government, and helps to identify those disputes which are appropriately resolved through judicial process." Cox, 183 F.3d at 1262 (internal quotation marks omitted) (citing Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), and Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990)).
Perhaps the most important of the Article III doctrines grounded in the case-or-controversy requirement is that of standing. See Allen, 468 U.S. at 750, 104 S.Ct. at 3324. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). A plaintiff seeking to invoke a federal court's jurisdiction must demonstrate three things to establish standing under Article III.
These three elements are the "`irreducible minimum' required by the Constitution" for a plaintiff to proceed in federal court. Jacksonville, 508 U.S. at 664, 113 S.Ct. at 2302 (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)). "In determining whether a plaintiff has established standing, we keep in mind the Art[icle] III notion that federal courts may exercise power only in the last resort, and as a necessity, and when the dispute is one traditionally thought to be capable of resolution through the judicial process." Cox, 183 F.3d at 1262-63 (internal quotation marks omitted) (citing Allen, 468 U.S. at 752, 104 S.Ct. at 3325).
The Tracy Plaintiffs' arguments for standing draw heavily on the Supreme Court's recent opinion in Lesage. To understand Lesage, however, it is essential to examine earlier Supreme Court decisions discussing standing in connection with a party's challenge to a competitive state-sponsored selection process that allegedly discriminates based on race. The Court in Lesage relied upon those decisions, and we think it is those decisions — rather than merely Lesage — that ultimately answer the questions now before us.
The first of those decisions is Northeastern Florida Chapter, Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). That case involved a challenge to a municipal ordinance which effectively set aside a portion of all city contracts for bidding only by minority-owned firms. The plaintiff was an association which included many non-minority firms that bid regularly on city contracts, but were barred from bidding on the set-aside contracts. The city argued that the plaintiff lacked standing because it failed to show that any of its members would have bid successfully on any of the contracts as to which they were precluded from bidding. The Supreme Court rejected that argument, emphasizing that it was immaterial for standing purposes whether any of the non-minority firms would have obtained the contracts were it not for the city's discrimination:
508 U.S. at 666, 113 S.Ct. at 2303. Having defined the relevant "injury-in-fact" as "the inability to compete on an equal footing," the Court explained that it "follows from our definition ... that petitioner has sufficiently alleged both that the city's ordinance is the `cause' of its injury and that a judicial decree directing the city to discontinue its program would `redress' the injury." Id. at 666 n. 5, 113 S.Ct. at 2303 n. 5.
In support of its holding in Jacksonville, the Supreme Court cited its "analogous" earlier decision in Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). In Bakke, an unsuccessful white applicant to a state medical school claimed that the school's admissions program, which reserved 16 of 100 places in the entering class for minority applicants, was inconsistent with the Equal Protection Clause. Addressing the argument that the applicant lacked standing to challenge the admissions program, Justice Powell (in a portion of his opinion joined by a majority of the Court) concluded that the "constitutional requirements of Art[icle] III" had been satisfied because the requisite "injury" was the school's "decision not to permit Bakke to compete for all 100 places in the class, simply because of his race." Id. at 281 n. 14, 98 S.Ct. at 2743 n. 14. Thus, "even if Bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing." Id.
Subsequent to Jacksonville, the Court decided Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Adarand, like Jacksonville, arose out of a contract bidding process. The plaintiff, a non-minority subcontracting firm, was the low bidder for a subcontracting job on a federal highway project. The job was awarded to a minority-owned firm, however, because a federal law effectively awarded financial incentives to general contractors hiring minority subcontractors. The defendant argued that the plaintiff lacked standing to seek prospective injunctive relief. The Court rejected that argument, and in so doing, also rejected the notion that the plaintiff was required to show it was likely to be the low bidder on future government contracts and hence likely to be awarded future contracts absent the discriminatory incentive system:
515 U.S. at 210, 115 S.Ct. at 2104-05 (quoting Jacksonville, 508 U.S. at 667, 113 S.Ct. at 2304).
Adarand plainly reinforced the principle adopted in Jacksonville and Bakke: when a plaintiff competing for a government-sponsored benefit has been treated differently because of race, he has standing to challenge that differential treatment because his application has not been considered "on an equal footing" with applications from members of the favored racial group. This Court, in standing-related opinions subsequent to Jacksonville and Adarand, has likewise focused on the injury caused by direct exposure to unequal treatment, without regard to whether the plaintiff ultimately may obtain the sought-after benefit. In Cone Corp. v. Hillsborough County, 5 F.3d 1397 (11th Cir.1993) (per curiam), for example, we explained that when an affirmative action plan subjects the plaintiff to "competition on an uneven playing field, ... [s]uch unequal competition ... can cause harm whether or not those forced to compete on less advantageous terms gain the benefit sought." Id. at 1398 (citing Jacksonville). Similarly, in Engineering Contractors Association of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895 (11th Cir.1997), we reasoned that where bidders for county construction contracts "do not compete on an equal basis," that alone gives them standing to challenge the provisions causing the unequal treatment. Id. at 906 (citing Jacksonville).
We come, then, to the Supreme Court's recent decision in Lesage. In that case, a white plaintiff named Lesage brought an action under § 1983 for money damages and prospective injunctive relief after unsuccessfully applying to a Ph.D. program at the University of Texas. The university admitted that race was a factor at some stages of the admissions process (although the record did not establish whether Lesage's application ever reached one of those stages). The district court granted summary judgment to the university, on the ground that Lesage would have been denied admission even if race had not been a factor in the admissions process. Reversing the district court, the Fifth Circuit held that Lesage's chances under a color-blind admissions scheme were irrelevant because, if Lesage could prove that his application was treated differently because of race, then he would be entitled to prevail on the merits under the logic of the "equal footing" standing cases.
The Supreme Court reversed the Fifth Circuit, holding that "[i]nsofar as the Court of Appeals held that summary judgment was inappropriate on Lesage's § 1983 action seeking damages for the school's rejection of his application ... even if petitioners conclusively established that Lesage would have been rejected under a race-neutral policy, its decision is inconsistent with this Court's well-established framework for analyzing such claims." 528 U.S. at 20, 120 S.Ct. at 467. The crux of the Court's concern was the Fifth Circuit's failure to take sufficient account of the merits defense created by Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and its progeny. Under Mt. Healthy, explained the Court, "even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration.... Simply put, where a plaintiff challenges a discrete governmental decision as being
The Court went on, however, to distinguish between the requisite injury for seeking damages and that necessary to seek prospective injunctive relief. In the course of that discussion, the Court referred to its earlier standing-related decisions defining the relevant injury in cases challenging an affirmative action policy:
Lesage, 528 U.S. at 21, 120 S.Ct. at 468-69. The court went on to remand Lesage's claim for prospective injunctive relief, because it could not determine whether that claim had been abandoned.
As Defendants observe, Lesage does not specifically address standing (indeed, the opinion does not refer to standing at all). Nevertheless, we agree with our decision vacating the district court's original judgment, in which we described Lesage as "clarif[ying] the standing requirements for plaintiffs challenging race-based admissions policies." 208 F.3d at 1313-14. Whether or not the opinion expressly discusses standing, it plainly bears on that inquiry because it further defines the kind of injury that would support relief in a case challenging the process of awarding benefits under a government affirmative action plan. "Injury-in-fact" is the touchstone of standing, see, e.g., Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, and it is to Supreme Court decisions such as Lesage that we must look in defining the relevant injury in these types of cases.
Defendants, unsurprisingly, take a different view. As they see it, for a white applicant to claim that he has been denied an opportunity to compete on an equal footing with non-white applicants, he necessarily must show that he is, in fact, able to compete equally. The upshot of this position is that regardless of whether a candidate's application was treated less favorably because of his race, if the candidate is unable to show that the fate of his application was altered due to race, then he would not be able to show that he was in a position to compete equally and therefore would lack standing. Consequently, not only is mere participation in a race-conscious admissions program insufficient to confer standing, actual dissimilar treatment of an application at some stage of the process is not enough unless the candidate could show that he was knocked out because of race.
A third view would strike a middle ground between the conflicting positions of the parties. According to that view, the critical inquiry for standing purposes would be whether the plaintiff's application has actually been treated differently at some stage in the admissions process on the basis of race. If so, then the plaintiff has not competed on an equal footing with other applicants outside his racial classification, and standing should be conferred regardless of whether race is ultimately a factor in the decision to reject the application. Conversely, if the plaintiff's application is never actually treated differently because of race, then the fact that race may be a consideration in assessing other applicants at a different stage of the process should not by itself confer standing. As discussed below, it is this approach which we find most consonant with binding Supreme Court precedent.
We think Green's standing presents the most difficult question in the appeal. It is undisputed that UGA's post-1995 freshman admissions policy made race a factor in evaluating applicants. It is also established, on this record, that race was a factor only at the TSI stage, and was not an express consideration at the initial AI
We think Defendants take too narrow a view of the significance of UGA's decision to consider race at the TSI stage. As set forth above, the Supreme Court has explained repeatedly that "[t]he `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." Jacksonville, 508 U.S. at 666, 113 S.Ct. at 2303. The Court's decisions establish that when an applicant competing for a government benefit has been exposed to unequal treatment, it is the exposure to unequal treatment which constitutes the injury-in-fact giving rise to standing. See Adarand, 515 U.S. at 211, 115 S.Ct. at 2104-05 ("The injury in cases of this kind is that a `discriminatory classification prevent[s] the plaintiff from competing on an equal footing.'") (quoting Jacksonville). In this case, the undisputed record shows that Green's application was denied equal treatment at the TSI stage — he did not receive the 0.5 bonus awarded to non-white candidates. He therefore was not allowed to compete on an equal footing with non-white candidates at the TSI stage.
Defendants' argument fails to take account of the fit between Green's allegations and the Supreme Court's definition of injury in cases such as Jacksonville. It may well be true that Green's ultimate fate in the UGA admissions process would not have been altered even if he had received the 0.5 point bonus or alternatively if non-white candidates had been denied such a bonus. In either instance, he would have fallen into the middle group of candidates who were neither accepted nor rejected at the TSI stage, and instead were passed on to the ER stage. But the Supreme Court's standing jurisprudence in this area unmistakably turns the focus away from that kind of result-oriented analysis and toward a process-oriented analysis that asks whether the plaintiff has actually been exposed to unequal treatment. Here, there is simply no question that Green's application was treated differently, and less favorably, than the applications of non-white candidates solely because of
The fact that Green's application was subsequently rejected under race-neutral criteria at the ER stage does not support the proposition that Green was not qualified to compete on equal terms with non-white applicants at the TSI stage. Moreover, the fact that Green was eventually rejected under race-neutral criteria does not mean that he suffered no cognizable injury from the unequal treatment.
To reiterate, the injury in these kinds of cases is not the denial of the sought-after benefit, but rather the direct exposure to unequal treatment. See, e.g., Lesage, 528 U.S. at 21, 120 S.Ct. at 468-69 ("[t]he relevant injury ... is `the inability to compete on an equal footing.'") (quoting Jacksonville); Adarand, 515 U.S. at 211, 115 S.Ct. at 2104-05 ("The aggrieved party `need not allege that he would have obtained the benefit but for the barrier in order to establish standing.'") (quoting Jacksonville); Jacksonville, 508 U.S. at 666, 113 S.Ct. at 2303 ("The `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the `injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of a contract.") (citation omitted); Cone, 5 F.3d at 1398 (inability to compete on even playing field "can cause harm whether or not those forced to compete on less advantageous terms gain the benefit sought."). The concern raised by Defendants therefore goes less to standing than it does to Green's ability to succeed on the merits of his claim. A showing that Green was denied admission under race-neutral criteria, and that his application would have been handled in exactly the same way even if race were not a factor at the TSI stage, may well defeat Green's claim or establish a Mt. Healthy defense. But at least in this context the Supreme Court has chosen to define the relevant injury-in-fact without regard to the end result of the defendant's consideration of race.
A finding that plaintiff has standing simply means that the plaintiff is entitled to "walk through the courthouse door" and raise his grievance before a federal court; it is a threshold determination that is conceptually distinct from whether the plaintiff is entitled to prevail on the merits. Standing doctrine has been developed primarily to ensure that the person seeking to litigate a claim is the "right" person to advance the claim. "The requirement that a party seeking review must allege facts showing that he is himself adversely affected [is] at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome." Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368-69, 31 L.Ed.2d 636 (1972). Especially in this area, we cannot read the Court's jurisprudence as conflating the standing inquiry with resolution of the merits of the plaintiff's attack on race-conscious governmental decision-making. Defendants' argument that Green suffered no "injury-in-fact" is unconvincing because, at bottom, it conceives of the standing inquiry as duplicating an inquiry into the merits.
For the foregoing reasons, the district court erred by rejecting Green's claim on the single ground that he lacked standing. In the end, this Court simply cannot square Defendants' logic with the concept of injury-in-fact adopted by the Supreme Court, which has recognized that the injury caused by a race-conscious admissions or bidding process is the fact of unequal treatment, without regard to whether race ultimately costs the plaintiff the desired benefit. This is not to say that Green must, or should, prevail on his cause of action. Defendants may well be correct that Green would not have been admitted to UGA even if race were not a factor, and may eventually defeat Green's claim on that basis or on other grounds. We offer no opinion at this time on Green's likelihood of success, or the remedies he may or may not obtain if indeed he were to prevail. We simply hold that Green established standing to pursue a claim on the merits, and therefore reverse the district court's entry of summary judgment against him on that basis.
We next address the standing of Plaintiff Davis. Davis, as noted above,
We find no support for that strained argument in the Supreme Court's jurisprudence. Plaintiffs' position would virtually abolish the injury-in-fact requirement in this context, conferring a cognizable injury on every unsuccessful applicant for a government contract or admission to a public university where the process at some stage or for some purposes disfavors the applicant's racial group in favor of another, regardless of whether the plaintiff herself was actually treated unequally. The law does not go that far. In Jacksonville, Bakke, and Adarand, the plaintiffs were exposed to race-conscious criteria at the very first step of the selection process, either in the form of a fixed, race-based constraint on eligibility for the benefit (Jacksonville, Bakke) or a race-based incentive system that adversely affected their position relative to other candidates seeking the benefit (Adarand). At no point were the bids or applications of the plaintiffs in those cases either considered without regard to race or unaffected by race-based limitations. Accordingly, we cannot draw from these cases the proposition that merely being exposed to an admissions process which considers race at some but not all stages necessarily creates standing for all applicants who would have been ineligible for special treatment had they proceeded to the race-conscious stage of the process. Nor does Lesage even remotely suggest that conclusion.
Our decision in Cone further demonstrates the flaws in Davis's argument. That case involved a challenge brought by general contractors who alleged that a county affirmative action plan governing the award and implementation of public construction contracts impermissibly discriminated against non-minority firms. Most of the specific provisions challenged did not cause the plaintiffs any cognizable injury. Only one provision in the county's plan treated minority and non-minority general contractors differently; as to that single provision, we remanded to the district court to consider whether the plaintiffs suffered any injury as a result of it. 5 F.3d at 1399. Notably, however, we did not suggest that, if the plaintiffs had standing to challenge the one facially-discriminatory provision, they would thereby have standing to challenge the other provisions as well; on the contrary, we dismissed the plaintiffs' challenge to the other provisions for lack of standing. Id. at 1398 (affirming the dismissal of "all claims dealing with provisions of the affirmative action program which treat minority and
Davis's argument is even less compelling than the logic we rejected in Cone. She contends that she has standing to challenge UGA's admissions policy solely by virtue of the fact that one aspect of the 1996 version of the policy — the awarding of bonus points based upon race or ethnicity at the TSI stage — is race-conscious. But like the plaintiffs in Cone, Davis cannot challenge provisions of the policy which did not cause her cognizable injury. And because the one provision that did cause her injury (the AI process) is undisputedly race-neutral, she cannot prove standing to assert a claim of race discrimination.
We therefore agree with the district court that a white applicant knocked out at the first stage of the UGA admissions process based on purely race-neutral criteria — as part of an entirely race-neutral inquiry into objective qualifications — cannot claim to have been denied an opportunity to compete "on an equal footing" with non-white applicants. Davis was not exposed to any unequal treatment, and her application was never actually disadvantaged because of her race. It follows that Davis has failed to prove an injury-in-fact, and therefore necessarily fails to establish the other elements of constitutional standing. Accordingly, we conclude that the district court properly granted summary judgment on standing grounds with respect to Plaintiff Davis.
For different reasons, the district court also did not err in rejecting Tracy's claim for prospective injunctive relief. Simply because a party prevails on the merits of a constitutional claim does not mean that the party is automatically entitled to prospective injunctive relief. Rather, to have standing to obtain forward-looking relief, a plaintiff must show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future.
Id. at 105-06, 103 S.Ct. at 1667. According to the Court, there was no "real and immediate threat" that either of the causes of Lyons' past injury — his illegal conduct that led the police to stop his vehicle and the ensuing police conduct — would recur in the future. Lyons' standing to seek damages for his past injuries, while not questioned by the Court, simply did not establish that he "faced a realistic threat from the future application of the City's policy." Id. at 106 n. 7, 103 S.Ct. at 1668 n. 7.
30 F.3d at 1337 (citations omitted). Invoking that reasoning, this Court has often emphasized that to obtain prospective injunctive relief a plaintiff must show that he faces a substantial likelihood of injury in the future. See, e.g., Bowen, 233 F.3d at 1340 (finding that plaintiff lacked standing to seek prospective injunctive relief where he could not "allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future") (quoting Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1346-47 (11th Cir.1999)).
Tracy is now a student at UGA, and there is no evidence that he intends to re-apply for admission to UGA under any version of the freshman admissions policy.
Plaintiffs make several counter-arguments, none of which is persuasive. First, they cite case law for the proposition that a plaintiff's entitlement to injunctive relief is measured at the time the complaint is filed. See Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir.1993). They contend that at the time the complaint was filed, Tracy had not yet transferred to UGA. As Defendants observe, however, the policy by which UGA allegedly discriminated against Tracy was the 1990-95 policy, which was not the policy in place at the time Plaintiffs filed suit in 1997. The post-1995 policy was not the predicate of Tracy's individual claim in the complaint, and was not likely to affect Tracy at the time he filed his complaint. There is, for example, no persuasive evidence that Tracy intended to re-apply to UGA via the freshman admissions process (on the contrary, he sought admission to UGA through a different route — the transfer process — soon after the complaint was filed). Accordingly, Tracy would not have been entitled to prospective injunctive relief regarding the post-1995 policy at the time he filed his complaint. Moreover, any prospective relief we might award with respect to the post-1995 policy would not redress the injury suffered by Tracy as a result of the 1990-95 policy.
Second, in a related argument, Plaintiffs cite decisions setting forth the proposition that a defendant's voluntary cessation of a challenged practice does not necessarily render a case moot and thereby deprive a federal court of its power to determine the legality of the practice. See, e.g., Jacksonville, 508 U.S. at 662, 113 S.Ct. at 2301. But while the district court occasionally spoke of this issue in terms of mootness, the real obstacle here is standing. In other words, the problem is not that the Defendants rescinded the unlawful 1990-95 admissions policy after the complaint was filed (thereby creating a potential mootness issue), but rather that the original policy had been replaced before Tracy and the other Plaintiffs even filed suit. Tracy never had standing to challenge the revised policy, and accordingly we never reach the question of whether Tracy's
Third, Plaintiffs maintain that the post-1995 policy is essentially the same as the 1990-95 policy that affected Tracy, and therefore Tracy should be entitled to seek prospective relief with respect to the revised policy. This reasoning is no answer to Tracy's inability to satisfy the "likely future injury" requirement of Lyons, however. In any event, the post-1995 policy is materially different than its predecessor. Under the 1996 and 1997 versions of revised policy, race is considered at only one stage of the admissions process, and applicants are not "dual-tracked" (in the sense of being held to different objective standards) based on their race. Under the prior policy, by contrast, black and non-black applicants were treated differently and held to different standards from the very outset of the evaluation process. "[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject." Blum v. Yaretsky, 457 U.S. 991, 999, 107 S.Ct. 2777, 2783, 73 L.Ed.2d 534 (1982) (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-167, 92 S.Ct. 1965, 1968-69, 32 L.Ed.2d 627 (1972)).
Fourth, Plaintiffs maintain that denying standing to Tracy is unfair because otherwise UGA's freshman admissions policy will be effectively unreviewable. They appear to believe that prospective relief could only be sought by someone who, having been rejected, is then prepared to wait out the duration of the litigation without seeking to gain admission to UGA as a transfer student. Moreover, according to Plaintiffs, even if an individual plaintiff seems likely to prove a violation, UGA can — as it has in the past — avoid any risk of far-reaching court-ordered prospective relief with regard to its freshman admissions policy simply by offering admission to that individual. At least on the record before us, we do not share Plaintiffs' concern. Suffice it to say that there has been no showing that the pool of potential plaintiffs able to challenge UGA's freshman admissions policy on these grounds is drying up. We also are confident that, regardless of any prospective relief a court might order, UGA would not ignore the import of a controlling federal court decision holding that its freshman admissions policy is unconstitutional. In any event, as discussed above, Tracy is not in a position to advance these concerns as a reason to grant him standing to seek prospective injunctive relief because he was not affected by the version of UGA's freshman admissions policy now in place.
Finally, Plaintiffs maintain that Lesage somehow entitles Tracy to prospective injunctive relief. But there is no indication in Lesage that the Court intended to alter the well-settled prerequisites to granting such relief. Plaintiffs' argument appears to be based on the Court's statement that "[o]f course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered." 528 U.S. at 21, 120 S.Ct. at 468. But Lesage plainly does not hold that a plaintiff may obtain prospective injunctive relief merely by alleging "an ongoing or imminent constitutional violation," id., arising out of a practice that has not injured him to date and is highly unlikely to injure him in the future.
Nor can Lesage be read to create an exception to Lyons where the discriminatory admissions policy is still in place. If the Supreme Court intended so significant and potentially far-reaching a change in the law of standing, surely it would have
Before closing, we address briefly the district court's denial of class certification. The crux of the district court's ruling was its finding that Tracy — the only Plaintiff with any standing at all in the eyes of the district court — could not represent a class of persons challenging UGA's freshman admissions policy.
The general principles regarding class certification are well-settled.
Thus, it is well-settled that prior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim. "[A]ny analysis of class certification must begin with the issue of standing." Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987); see also Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A, July 1981) (stating that the "constitutional threshold [of standing] must be met before any consideration of the typicality of claims or commonality of issues required for procedural reasons by Fed.R.Civ.P. 23"). "Only after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others." It is not enough that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to one of many claims he wishes to assert. Rather, "each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim."
Prado-Steiman, 221 F.3d at 1280 (citations omitted). Thus, just as a plaintiff cannot pursue an individual claim unless he proves standing, a plaintiff cannot represent a class unless he has standing to raise the claims of the class he seeks to represent.
For the reasons discussed above, the district court did not err by concluding that Tracy lacks standing to pursue forward-looking relief with respect to UGA's revised freshman admissions policy. He therefore cannot represent a class seeking that relief.
On the other hand, having now reversed the district court's ruling that Green lacks standing, we must also vacate the denial of class certification to the extent it turned on the notion that Green could not serve as a class representative because he lacked standing to pursue a claim individually. A district court abuses its discretion when it denies class certification based on an incorrect legal premise. See, e.g., Prado-Steiman, 221 F.3d at 1275 n. 9 (citing SunAmerica Corp. v. Sun Life Assur. Co., 77 F.3d 1325, 1333 (11th Cir.1996) for the proposition that a "court necessarily abuses its discretion if it `has applied an incorrect legal standard'"). Whether Green could serve as representative for a class that would meet the prerequisites of Rule 23(a), and one of the subdivisions of Rule 23(b), is a question for the district court to address in the first instance, not this Court, especially as the district court did not even consider Green as a possible class representative in its ruling denying class certification.
In summary, we dismiss the appeals of Wooden, Jarvis and Bratcher, and affirm the district court's dismissal for lack of standing of the claims brought by Davis and Tracy. We reverse the district court's order entering summary judgment on Green's claim for lack of standing, and vacate the denial of class certification to the extent it was based on the mistaken premise that Green wholly lacked standing. The case is remanded to the district court for further proceedings regarding Green's claim consistent with this opinion.
APPEAL DISMISSED IN PART, AFFIRMED IN PART, REVERSED AND VACATED IN PART, AND REMANDED.
Plaintiffs' Motion for Class Certification, Dec. 1, 1997, at 1. The district court appears to have considered Plaintiffs' motion only from the standpoint of whether Tracy could represent a class of persons challenging UGA's freshman admissions policy.