Case Information
*1 Before BLACK and MARCUS, Circuit Judges, and HANCOCK [*] , District Judge.
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 Green lacks standing, and by rejecting on that basis Green's request to serve as a class representative. Accordingly, * Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by designation.
we reverse the district court's order entering summary judgment against Green for lack of standing, and vacate the denial of class certification to the extent it was based on the premise that Green lacks standing. The case is remanded to the district court for further proceedings regarding Green's claim consistent with this opinion.
I.
A. 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"). [1]
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"). [2] Under the 1990-95 policy, the minimums for black students were set lower than the minimums for non-black students. Specifically, to be eligible for admission into the Fall 1995 class, a black applicant would have to obtain at least an 800 SAT score, a 2.0 GPA, and a 2.0 academic index. By contrast, a non-black applicant would have to obtain at least a 980 SAT score, a 2.5 GPA, and a 2.4 academic index.
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.
1 The district court in this case has already stated in dicta its view that the UGA admissions policy
discriminates unlawfully to the extent it gives certain applicants preferential treatment based on race at
some stages of the admissions process.
See, e.g., Tracy v. Board of Regents of the Univ. Sys. of Ga.,
59
F.Supp.2d 1314, 1321 (S.D.Ga.1999). The district court reached the same conclusion in related litigation
not before us today.
Johnson v. Board of Regents of the Univ. Sys. of Ga.,
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. [3] At the time of summary judgment in this case, Tracy remained a student at UGA.
Meanwhile, UGA—concerned about the constitutionality of its dual-track admissions policy—revised that policy in 1995 for the 1996 freshman class. With some minor modifications, that revised policy remained in effect at the time of summary judgment and appears to remain in effect today. The revised policy divides the admissions process into three stages. UGA selects the majority of its freshman class at an initial stage which applies objective academic criteria without regard to the applicant's race. At this initial stage (the "AI stage"), UGA admits automatically applicants whose academic indices and SAT scores are above a certain number. From the remaining applications, UGA selects for "further evaluation" a group of applicants whose academic indices are above a certain number and who meet minimum SAT score requirements. Applicants who fall below the minimum academic index or below the minimum SAT score requirement are automatically rejected. To reiterate, race is not a consideration at the AI stage.
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. [4] Applicants whose TSI scores meet a pre-set threshold are admitted automatically, while applicants whose scores fall below a pre-set minimum are rejected. Applicants whose TSI scores fall between those numbers are then passed on to a third stage, where they are evaluated on an individual basis by admissions officers. This is the "edge read" or "ER" stage. At this final stage, all applicants still in the pool start with a score of zero, and ER readers look for qualities that might not have been apparent at the AI and TSI stages. Applicants who receive an ER rating above a certain number are admitted, while those below that number are rejected. Race is not designated as a factor at the ER stage, although the Plaintiffs contend that race is nevertheless taken into account in determining an ER score.
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 3 It is unclear what criteria UGA uses to evaluate transfer applicants, although there is no dispute that those criteria are race-neutral. UGA also considers, among other factors, Georgia residence, alumni relationships, extracurricular
activities, and after-school work hours.
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 Factors" to applicants who self-classified themselves as non-caucasian. [5] Applicants who did not do so, such as Green, did not receive the 0.5 point credit.
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 TSI points, 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 In 1996, the year in which Davis sought admission, bonus points were awarded under a category entitled "Ethnic Diversity." The number of points awarded depended on the particular "ethnic code" (such as "B" for black) specified by the applicant. It appears that black applicants were awarded a larger bonus than Hispanic or other "minority" applicants. That distinction did not exist in 1997, when the awarding of bonus points turned simply on whether the applicant identified himself as "non-caucasian." As shorthand in this opinion, we shall use "white" and "non-white" to refer to "caucasian" and "non-caucasian" when speaking of the 1997 policy.
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.
B.
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 continued segregation adversely affected his educational experience and undermines the reputational value of his degree. Plaintiff Bratcher, who is white, is on the faculty at Ft. Valley; she contends that the school's hostility to whites adversely affects her work and makes the school inferior. None of these Plaintiffs is a current student at an HBI, which all parties concede remain predominantly black today and Plaintiffs contend are de facto bastions of segregation (for example, they observe that there are separate student unions for white and black students). [6]
C.
The only Wooden Plaintiffs before us today are Wooden, Jarvis, and Bratcher. In their brief Plaintiffs discuss a fourth Wooden Plaintiff, Marie McConnell, but McConnell was voluntarily dismissed from the case on October 14, 1998, and is not a party to the appeal. Plaintiffs also discuss a fifth Wooden Plaintiff, Ruth Harris, but make no argument about her and do not even mention her, let alone argue on her behalf, in their brief.
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. [7]
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.,
7 Plaintiff Davis also moved for leave to amend her complaint to add allegations of sex discrimination. The district court denied that motion. Although Plaintiffs state that they seek review of that decision, they do not address the district court's ruling in their brief, and instead simply argue that Davis has standing. For the same reasons that Davis lacks standing to pursue her allegation that the UGA admissions process unlawfully gives preferential treatment to non-white applicants, she lacks standing to challenge UGA's allegedly preferential treatment of males at the TSI stage. No party has appealed the district court's finding of liability on Tracy's claim or the district court's
decision to award only nominal damages on that claim. Accordingly, we shall not review those rulings.
All of those rulings were appealed to this Court. While the appeal was pending, the Supreme Court
decided a relevant case,
Texas v. Lesage,
[W]here a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983.
Of 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. The relevant injury in such cases is "the inability to compete on an equal footing." Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville,508 U.S. 656 , 666,113 S.Ct. 2297 ,124 L.Ed.2d 586 [ ] (1993). See also Adarand Constructors, Inc. v. Pena,515 U.S. 200 , 211,115 S.Ct. 2097 ,132 L.Ed.2d 158 [](1995). But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government's conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability.
Appellants brought related challenges to the University of Georgia's use of race in its admissions process and to the maintenance of historically black colleges within the state's university system. The district court granted summary judgment to appellees on all but one claim on standing and mootness grounds. After the appeal was filed in this case, the Supreme Court in the case of Texas v. Lesage,528 U.S. 18 ,120 S.Ct. 467 ,145 L.Ed.2d 347 [ ] (1999), clarified the standing requirements for plaintiffs challenging race-based admissions policies. It is therefore ORDERED that the judgment of the district court is VACATED and the case is REMANDED to that court for further consideration in light of Lesage.
Tracy v. Board of Regents of the Univ. Sys.,
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 its prior decision on the ground that Tracy lacked standing to obtain any form of prospective relief regarding UGA's freshman admissions policy, given that Tracy would never again be subject to that policy and accordingly could not establish the prospect of imminent harm necessary for him to have standing to seek a prospective injunction.
With respect to Davis, the district court found that she did not suffer any injury-in-fact. It reasoned *8 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:
[T]he parties focus on whether Green suffered an "injury-in-fact." While they agree that UGA took the ethnic/racial status of applicants into account through its TSI computation, they disagree on whether that amounted to a constitutionally sufficient injury in Green's case. Defendants insist that, because Green's race was not a factor in the ultimate decision to deny his application, he lacks standing to challenge UGA's admission policy. Even if Green had received the .5 bonus for "non-white" ethnic status at the TSI stage, they point out, his application still would have been relegated to the final (ER) admissions stage. [A]lthough UGA may have affirmatively considered his race at some point in the admissions process, the unrebutted evidence shows that its final decision to reject his application was not based on race. Nor did Green reach the final stage (i.e., had his file "edge read") because of his race.... Green argues that he nevertheless has standing because UGA's admissions process (as opposed to its denial of admission) inflicted a constitutional injury upon him. Just having his application threaded through a process which employed race-counting (at the TSI stage), he contends, is enough.... [The] cases require Green to show that the system prevented him from competing on an equal footing. Green fails in this regard because he has not shown that he was otherwise qualified and then had his "bid" for admission subjected to a "tainted" admissions process.... [He] cannot say that he was prevented, because of his race, from competing "on an equal footing" with non-whites. Accordingly, Green has not suffered an "injury-in-fact" sufficient to have standing to challenge UGA's admission policy on equal protection grounds.
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 Plaintiff to serve as a class representative, apparently because the court had previously decided that those Plaintiffs lacked standing to pursue claims on their own behalf.
II.
There can be no dispute about the proper standard of review of the district court's orders granting
*9
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.,
III.
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,
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
Even outside of summary judgment, questions of standing are reviewed de novo.
See Georgia State
Conf. of NAACP Branches v. Cox,
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 court denied the reconsideration motion on July 24, 2000, and a notice of appeal on behalf of both sets of Plaintiffs was filed on August 17, 2000—less than 30 days after the denial of reconsideration, but over two months after the June 16 order entering summary judgment.
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.,
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.,
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:
COMES NOW the Plaintiffs ASHLEY DAVIS (Davis), KIRBY TRACY (Tracy) and CRAIG GREEN (Green) [collectively the UGA Plaintiffs] and respectfully request that the Court reconsider its June 16, 2000 Order ...
In a footnote, the Tracy Plaintiffs explained that the Wooden Plaintiffs had no part in the motion for reconsideration. [10] The footnote reads:
The remaining Wooden plaintiffs who challenge defendants' continued maintenance of racially segregated "historically black" universities will file a separate motion and brief seeking consideration of their standing, and take no part in this motion.
A review of the docket sheet and the record reveals that the Wooden Plaintiffs never filed any motion or brief seeking reconsideration of the June 16 order.
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.
[11]
At least in this context, the filing of a joint notice of appeal from a final order resolving a group
of individual claims does not relieve each plaintiff of his obligation to file a timely notice of appeal with
respect to his own particular claim; the fact that the notice may be timely for some other plaintiff is
immaterial.
See United States v. One Remington 12 Gauge Shotgun,
IV.
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 10 Moreover, the memorandum in support of the motion for reconsideration focuses only on the claims of the Tracy Plaintiffs. It discusses in detail the need for reconsideration with respect to Tracy, Davis, and Green, but makes no mention of the other Plaintiffs. The district court's order denying reconsideration likewise contains no discussion of the Wooden Plaintiffs' standing. As explained above, the Tracy Plaintiffs challenge the freshman admissions policies at UGA. The
Wooden Plaintiffs do not challenge those policies, but rather challenge the Defendants' alleged perpetuation of the "segregated" HBIs.
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,
Perhaps the most important of the Article III doctrines grounded in the case-or-controversy
requirement is that of standing.
See Allen,
These three elements are the " 'irreducible minimum' required by the Constitution" for a plaintiff to
proceed in federal court.
Jacksonville,
A.
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,
When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. 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. See, e.g., Turner v. Fouche, [396 U.S. 346 , 362,90 S.Ct. 532 , 541 (1970)] ("We may assume that the [plaintiffs] have no right to be appointed to the ... board of education. But [they] do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications") (footnote omitted) (emphasis added). 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.... To establish standing, therefore, a party challenging a set-aside program like Jacksonville's need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.
In support of its holding in
Jacksonville,
the Supreme Court cited its "analogous" earlier decision in
Regents of University of California v. Bakke,
Subsequent to
Jacksonville,
the Court decided
Adarand Constructors, Inc. v. Pena,
Adarand's claim that the Government's use of subcontractor compensation clauses denies it equal
protection of the laws of course alleges an invasion of a legally protected interest, and it does so in
a manner that is "particularized" as to Adarand. We note that, contrary to respondents' suggestion,
[] Adarand need not demonstrate that it has been, or will be, the low bidder on a Government
contract. The injury in cases of this kind is that a "discriminatory classification prevent[s] the
plaintiff from competing on an equal footing." The aggrieved party "need not allege that he would
have obtained the benefit but for the barrier in order to establish standing."
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,
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."
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:
Of 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. The relevant injury in such cases is "the inability to compete on an equal footing." Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666,113 S.Ct. 2297 ,124 L.Ed.2d 586 (1993). See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211,115 S.Ct. 2097 ,132 L.Ed.2d 158 (1995). But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government's conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability.
Lesage,
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."
of cases. [14]
The difficulty, of course, is determining the scope of the Court's statement—first made in Jacksonville, reiterated in Adarand, and repeated most recently in Lesage —that "[t]he relevant injury ... is 'the inability to compete on an equal footing.' " Lesage, 528 U.S. at 21, 120 S.Ct. at 468-69 (quoting Jacksonville ). In the context of this case, and holding aside the additional considerations raised by a claim for prospective injunctive relief, see infra Part IV.D, there are at least three possible interpretations. As the Tracy Plaintiffs see it, it is enough to allege that at some stage in the UGA freshman admissions process a white applicant will be disadvantaged because of race. In other words, viewing the admissions process as a whole, white applicants do not compete on an equal footing with non-white applicants, and that fact alone creates an injury sufficient to confer standing on all unsuccessful white applicants. It follows, Plaintiffs say, that mere participation in the race-conscious admissions process is enough to establish injury, regardless of whether the applicant would have been knocked out under race-neutral criteria before or after the particular stage of the admissions process where race was considered.
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 Lesage is also notable because it applies in a university admissions case the "equal footing" principle developed primarily in government contract cases. In both types of cases, the plaintiff is competing against others for a benefit conferred on some, but not all, by the state. After Lesage, Jacksonville and Adarand are not distinguishable simply because they involve the process of awarding government contracts.
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.
B.
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 stage or the final ER stage. [15] Drawing on that distinction, Defendants insist that Green was not injured by UGA's consideration of race as a factor under the 1997 version of the admissions policy because (1) his application would have proceeded to the ER stage regardless of whether he received the 0.5 point bonus given to similarly-situated non-white applicants (i.e., he would not have been admitted automatically at the TSI stage even if he received the bonus); (2) scores from the TSI stage did not carry over to the ER stage; and (3) race was not a factor at the ER stage (the stage at which he was denied admission). Plaintiffs respond that Green's claim fits squarely under Jacksonville: at the TSI stage he was plainly not "on an equal footing" with non-white applicants because those applicants received a bonus that he did not. Defendants counter that even so, Green was not tangibly injured by any "unequal" treatment because he was rejected at a stage of the process which did not consider race.
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,
standing.
See Adarand,
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 race. That is enough to give him standing to challenge the policy.
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,
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,
Our determination that Green has suffered an injury-in-fact based on his exposure to unequal
treatment at the TSI stage of the admissions process does not, of course, wholly end the standing analysis.
To establish standing, a plaintiff must also show that the defendants caused the asserted injury and that a
favorable decision would be likely to redress that injury. Defendants assert that Green cannot make such a
showing because even if Green were to prove that UGA acted unlawfully by considering race in the
admissions process, that determination would not yield any relief for him because he was rejected under
race-neutral criteria and would not have been admitted even if race were excluded as a factor. But once again,
this argument conflates the merits of the case, and particularly the
Mt. Healthy
defense, with standing. To
the extent the injury here is the undisputed fact that Green's application was treated differently and less
Although some overlap may be inevitable, standing doctrine was not intended to provide a vehicle
for resolution at the threshold of fundamentally merits issues. As the Supreme Court has explained,
standing is designed to insure that the judicial process is not transformed into "no more than a vehicle for
the vindication of the value interests of concerned bystanders."
United States v. SCRAP,
favorably because of his race ( not the ultimate denial of admission), that injury was unquestionably caused by Defendants and their deliberate use of race as a factor in the admissions process. Moreover, a court could redress that injury by, among other things, declaring that Green's application must be re-considered under an entirely race-neutral admissions process. Although it is possible that the outcome of that process would be exactly the same as it was under the race-conscious process actually applied to Green's application, such a determination cannot be made now under the rubric of standing.
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. [17]
C.
We next address the standing of Plaintiff Davis. Davis, as noted above, was rejected during the
initial IA phase of the admissions process, which focused solely on race-neutral objective criteria and took
place before any race or ethnicity-based considerations entered the picture for those proceeding to the TSI
stage under the applicable 1996 version of the policy. Davis's academic index fell below the minimum
required to advance to the TSI stage—let alone to be admitted automatically—and hence she was rejected
The district court did not discuss separately Green's standing to seek prospective injunctive relief in
the form of an injunction forbidding the use of race as a factor in the UGA freshman admissions process.
It is unclear whether Green desires such relief or can establish the additional elements necessary to have
standing to seek such relief.
See infra
Part IV.D. We note, however, that a request for prospective relief
may proceed differently than a request for retrospective relief (such as damages or an order awarding the
sought-after benefit) based on a completed, past act of discrimination. Among other things, as
Lesage
reinforces, a successful
Mt. Healthy
defense will not necessarily preclude a finding of liability for the
purpose of awarding prospective relief to redress ongoing or likely future injury to the plaintiff.
See
Lesage,
on that basis. Simply put, at the only stage during which Davis's application was considered by UGA, she was plainly on an equal footing with all other applicants, and was deemed unqualified according to entirely race-neutral criteria. [18] Hence, Davis cannot claim to have suffered any cognizable injury on account of race unless we were to find that the injury here is exposure to an overall admissions process that includes a race or ethnicity-based component to which the plaintiff herself is not actually subject.
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.
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 non-minority general contractors alike, because they do not produce competition on an uneven playing field"). In short, the plaintiffs could not use their potential exposure to discrimination pursuant to one provision of the county's plan as a vehicle to assert standing for purpose of challenging other aspects of the plan that did not cause them cognizable injury.
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. [19]
D.
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
Contrary to Plaintiffs' argument, the fact that Green has standing to advance his claim does not
mean that Davis—who presents a materially distinct claim—is relieved from her burden of proving
individual standing.
Compare American Iron & Steel Institute v. OSHA,
unlawful conduct in the future.
[20]
We discussed this requirement and the seminal Supreme Court opinion of
City of Los Angeles v. Lyons,
Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury. [ Lyons, 461 U.S.] at 102,103 S.Ct. at 1665 . Logically, "a prospective remedy will provide no relief for an injury that is, and likely will remain, entirely in the past." Although "past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury," O'Shea v. Littleton,414 U.S. 488 , 496,94 S.Ct. 669 , 676,38 L.Ed.2d 674 [] (1974), "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." Lyons,461 U.S. at 102 ,103 S.Ct. at 1665 (alterations in original) (quoting O'Shea,414 U.S. at 496 , 94 S.Ct. at 676).
In Lyons, police officers had stopped Lyons for a traffic violation. Id. at 97,103 S.Ct. at 1663 . Although he offered no resistance or provocation, the officers applied a chokehold that rendered him unconscious and seriously injured him. Id. at 99,103 S.Ct. at 1664 . Lyons sued for damages and an injunction to bar future police use of chokeholds absent an immediate threat of deadly force. Id. at 98,103 S.Ct. at 1663 . The district court granted a preliminary injunction, the court of appeals affirmed, but the Supreme Court reversed. Id. at 99-100,103 S.Ct. at 1664 . The Supreme Court reasoned that Lyons' standing rested on the mere speculation that the police might stop him again and that, if stopped, the arresting officers might apply an unconstitutional chokehold. The Court concluded:
In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner.
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.
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. There is no likelihood, therefore, that he will ever again be exposed to UGA's allegedly discriminatory freshman admissions process. As Lyons makes clear, the fact that others may be exposed to that process in the future is not sufficient for Tracy to obtain prospective relief that will not benefit him in conjunction with his individual claim.
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,
In
Robidoux,
the Second Circuit explained that "[f]or a plaintiff to have standing to request
injunctive or declaratory relief, the injury alleged must be capable of being redressed through injunctive
relief 'at that moment.' The plaintiff may meet this standard by alleging that the defendant was engaging
in the unlawful practice against the plaintiff at the time of the complaint."
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,
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,
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 *27 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."
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 said so directly, or at least cited
Lyons.
To reiterate, standing,
qua
standing,
was not even an issue in
Lesage,
and no question of prospective relief arose there because it appeared that
the plaintiff had abandoned his claim that the defendant university was still administering a discriminatory
admissions policy.
E.
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. [22] The Plaintiffs' class allegations were sweeping. Plaintiffs purported to represent: [A]ll present and future students of any four-year or university-level public institution of higher education in Georgia; parents of minor students of such institutions; applicants for admission at such institutions; parents of minor applicants for admission at such *28 court explained that Tracy's own claim had become moot by virtue of his admission to UGA as a transfer student, and that additionally there were too many questions requiring individualized analysis for class treatment to be acceptable. The court did not expressly consider whether Green could represent a viable class. On appeal, Plaintiffs argue that both Tracy and Green should be permitted to serve as class representatives, and that the class issue should be revisited with that point established.
The general principles regarding class certification are well-settled. [23] Among other things, as a prerequisite to certification, it must be established that the proposed class representatives have standing to pursue the claims as to which classwide relief is sought. The standing requirement is a function not only of Article III, but also the requirement in the class action rule—Fed. R. Civ. P. 23—that the representative's individual claim be typical of those belonging to the class members he seeks to represent. See Fed.R.Civ.P. 23(a)(3) ("the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class"). As we have explained:
It should be obvious that there cannot be adequate typicality between a class and a named representative unless the named representative has individual standing to raise the legal claims of the class.... [T]ypicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large. Without individual standing to raise a legal claim, a named representative does not have the requisite typicality to raise the same claim on behalf of a class. As the Supreme Court has explained, "[w]e have repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." [ General Telephone Co. of Southwest v. Falcon,457 U.S. 147 , 156,102 S.Ct. 2364 , 2370,72 L.Ed.2d 740 (1982)]. This rule makes especially good sense when we consider that one of the core purposes of conducting typicality review is to ensure that "the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented."
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. institutions; faculty and administrative employees at such institutions; applicants for faculty and administrative employment at such institutions; and applicants for promotion at such institutions; who have been denied admission, employment, promotion, or monies based on their race, within the two year period preceding the filing of this complaint.
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. Plaintiffs sought class treatment under Fed.R.Civ.P. 23(b)(2) (which governs claims for injunctive
relief) and 23(b)(3) (which governs damages claims).
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,
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,
We note, however, that the district court is not required to resolve Green's class certification request before resolving a challenge to Green's individual claim. If the district court were to resolve a summary judgment motion in Defendants' favor and in so doing dismiss Green's individual claim before ruling on class certification, then Green would not be an appropriate class representative. Again, however, we leave those matters to the district court. We simply hold that the district court's denial of class certification must be vacated to the extent it was premised on the incorrect assumption that Green lacked standing to pursue a claim Defendants do not argue that we could affirm the denial of class certification even if we were to find that one or more of the Plaintiffs has standing. Although the district court based its denial of class certification partially on concerns beyond standing, we shall not reach out to address those concerns now. The district court, of course, may well conclude that some or all of its earlier concerns still exist even with Green as the proposed class representative.
individually.
V.
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.