Wooden v. Board of Regents of the University System of Georgia Brief of Defendant-Intervenor-Appellees
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November 15, 2000
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Brief Collection, LDF Court Filings. Wooden v. Board of Regents of the University System of Georgia Brief of Defendant-Intervenor-Appellees, 2000. 14159572-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/dfb18ad9-d140-4973-b71f-62928a03b39a/wooden-v-board-of-regents-of-the-university-system-of-georgia-brief-of-defendant-intervenor-appellees. Accessed April 06, 2025.
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No. 00-14322A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
MICHAEL C. WOODEN, et al.,
Plaintiffs-Appellants,
V.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
AND DR. STEPHEN R. PORTCH
Defendants-Appellees.
GEORGIA STATE CONFERENCE, NAACP, et al.
Defendant-Intervenor-Appellees
On Appeal from the United States District Court
for the Southern District of Georgia
BRIEF OF DEFENDANT-INTERVENOR-APPELLEES
I. KENNETH DIOUS
Kenneth Dious & Associates
115 Sycamore Drive, Suite IB
Athens, GA 30606
JOHN M. CLARK
P.O. Box 752
Elberton, GA 30635
ELAINE R. JONES
Director-Counsel
THEODORE M. SHAW
DENNIS D. PARKER
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street
Suite 1600
New York, NY 10013
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Wooden et al. v. Board of Regents Docket No. 00-14322A
The undersigned counsel of record for Defendant-Intervenor-Appellees, in
compliance with Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, certifies that the
following listed persons and parties have an interest in the outcome of this case. These
representations are made so that the Judges of this Court may evaluate possible
disqualification or recusal pursuant to the local rules of this Court:
1.
2 .
K. Lee Adams, counsel for Appellants
Thurbert E. Baker, Attorney General of the State of Georgia,
and counsel for Appellees
3. Kenmta Bell, Appellee-Defendant-Intervenor
4.
5.
6 .
7.
8 .
9.
10.
Chadafi Betterson, Appellee-Defendant-Intervenor
Board of Regents for the University System of Georgia, Appellee
Elise C. Boddie, counsel for Appellee-Defendant-Intervenors
Victor A. Bolden, counsel for Appellee-Defendant-Intervenors
Terry Bratcher. Appellant
Lauretha Butler, Appellee-Defendant-Intervenor
John Mell Clark, counsel for Appellee-Defendant-Intervenors
C-l of 4
11.
12. William Deale, Appellee-Defendant-Intervenor
13. I. Kenneth Dious, counsel for Appellee-Defendant-Intervenors
14. Dennis R. Dunn, counsel for Appellees
15. Hon. B. Avant Edenfield, United States District Court Judge for
the Southern District of Georgia, Savannah Division
16. Alfied L. Evans, counsel for Appellees
17. Deborah Fanning, Appellee-Defendant-Intervenor
18. Tracey Ford, Appellee-Defendant-Intervenor
19. Georgia State Conference of the National Association for the
Advancement of Colored People (NAACP), Appellee-Defendant-
Intervenor
20. Derrick Gervin, Appellee-Defendant-Intervenor
21 David T Goldberg, counsel for Appellee-Defendant-Intervenor
22. Craig Green, Appellant
23. Ruth Harris, Appellant
24. Tom Jarvis, Appellant
25. Neshanta Johnson, Appellee-Defendant-Intervenor
26. Elaine R. Jones, counsel for Appellee-Defendant-Intervenors
Ashley Davis, Appellant
C-2 of 4
27. Adane Kwakye, Appellee-Defendant-Intervenor
28. Samuel Kwakye, Appellee-Defendant-Intervenor
29. NAACP Legal Defense & Educational Fund., Inc., counsel for
Appellee-Defendant-Intervenors
30. Dennis D. Parker, counsel for Appellee-Defendant-Intervenors
31. A. Lee Parks, counsel for Appellants
Natalie Plowden, Appeilee-Defendant-Intervenor
33. Nathaniel Plowden,, Appellee-Defendant-Intervenor
34. Dr. Stephen Portch, Appellee
35. Parks, Chesin & Miller, P.C., counsel for Appellants
36. Theodore M. Shaw, counsel for Appellee-Defendant-Intervenors
37. Alvin Sheats, Appellee-Defendant-Intervenor
38. Nicole Sheats, Appellee-Defendant-Intervenor
39. Southern Christian Leadership Conference, Appellee-Defendant-
Intervenor
40. Ovita Thornton, Appellee-Defendant-Intervenor
41 Travis Thornton, Appellee-Defendant-Intervenor
42. Kirby Tracy, Appellant
43. Larry Wakefield, Appellee-Defendant-Intervenor
C-3 of 4
44. Valerie Warren, Appellee-Defendant-Intervenor
45. La'Dreca Wells, Appellee-Defendant-Intervenor
46. Nyodemar Wiley, Appellee-Defendant-Intervenor
47. Larie Wilson, Appellee-Defendant-Intervenor
48. Miranda Wilson, Appellee-Defendant-Intervenor
49. Michael C. Wooden. Appellant
50. Caron Yancey, Appellee-Defendant-Intervenor
0 — ^ FL
DENNIS D. PARKER
C-4 o f 4
STATEMENT REGARDING ORAL ARGUMENT
This case involves a straightforward application of the law on Article III
standing. As such, Intervenors believe this matter is capable of resolution without oral
argument. However, to the extent that oral argument will assist the Court in
determining whether there has indeed been any change in the constitutional
requirements of standing and whether this case necessitates a dramatic departure from
the applicable law, Inteivenors respectfully request that an opportunity for oral
argument be granted.
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS................................................. Cl of 4
STATEMENT REGARDING ORAL ARGUMENT..................... ■
TABLE OF CONTENTS ......................................................................................... 11
TABLE OF CITATIONS
..................... IV
STATEMENT OF JURISDICTION......................................
STATEMENT OF THE ISSUES....................................................
STATEMENT OF THE CASE................................... 2
A. Statement of Facts........................................ 1
B. Course of Proceedings and Dispositions Below..................... \ \
C. Standard of Review ..................................................................................................to
SUMMARY OF THE ARGUMENT............................................... ]g
ARGUMENT.................................................................
I. TEXAS V. LESAGE DID NOT MODIFY OR REDUCE THE
FUNDAMENTAL REQUIREMENTS OF ARTICLE III
STANDING.............................................................. 9?
A Fundamental Standing Requirements 99
B Special Standing Rules For Challenges to Affirmative Artinn
^ ................................................................................................ 26
II. THE DISTRICT COURT DID NOT ERR IN EXAMINING THE
INDIVIDUAL STANDING CLAIMS OF PLAINTIFFS TRACY
GREEN AND DAVIS................
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS....................
STATEMENT REGARDING ORAL ARGUMENT...........
TABLE OF CONTENTS........................................................
TABLE OF CITATIONS...................... .................................
STATEMENT OF JURISDICTION.......................................
STATEMENT OF THE ISSUES.............................................
STATEMENT OF THE CASE.............................................
A. Statement of Facts...................................
B. Course of Proceedings and Dispositions Below
C. Standard of Review.......................................
SUMMARY OF THE ARGUMENT.......................................
ARGUMENT.................
Cl o f4
........... i
..........ii
.........iv
.........ix
..........1
.........2
.........2
......11
......16
......18
...... 22
I. TEXAS V. LESAGE DID NOT MODIFY OR REDUCE THE
FUNDAMENTAL REQUIREMENTS OF ARTICLE III
STANDING........................................................
A. Fundamental Standing Requirements...............
B Special Standing Rules For Challenges to Affirmative Art,An
Plans...........................................
II. THE DISTRICT COURT DID NOT ERR IN EXAMINING THE
INDIVIDUAL STANDING CLAIMS OF PLAINTIFFS TRACY
GREEN AND DAVIS.....................
ii
A- Ih e District Court Correctly Held that Plaintiff Tracy Lacked
Standing to Seek Prospective R e lie f........................................... 44
B Ih e District Court Correctly Held that Plaintiff Tracy I .ar.k-pH
Standing to Seek Prospective Relief and Immediate Admission
to UGA................................................................ 45
c - Ih e District Court Correctly Held that Plaintiff Davis T arkprt
Standing to Seek Prospective Injunctive Relief or to Bring a
Claim of Gender Discrimination........................... 4g
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DENYING CLASS CERTIFICATION............................................... 49
IV. 1 HE DISTRICT COURT CORRECTLY HELD THAT PLAINTIFFS
LACK STANDING TO OBTAIN COURT-ORDERED
RESTRUCTURING OF GEORGIA’S PUBLIC HISTORICALLY
BLACK INSTITUTIONS.......................................................... 52
CONCLUSION......... , n
................................................................................................................................
iii
TABLE OF AUTHORITIES
FEDERAL CASES
Adams v. Richardson,
480 F.2d 1159 (D.C. Cir. 1973)........................................................... 54 55
Adarand Contractors, Inc. v. Pena,
515 U.S. 200(1995)v ................................................................................ passim
Adler v. Duval County School Board,
112 F.3d 1475 (11th Cir. 1997) ................................ s?
Allen v. Wright,
468 U.S. 737 (1984).................................................................... 23 26 58
Allison v. C.itgo Petroleum Corp.,
151 F.3d 402 (5th Cir. 1998) ....................................... 50
Arits v. Board o f Regents,
1981 U.S. Dist. LEXIS 18152 (S.D. Ga. 1981) ................................. 55
Arizonans for Off. Eng. v. Arizona,
520 U.S. 43 (1997)............................................................. ?4
Balfour Beatty Bahamas, Ltd. v. Bush,
170 F.3d 1048 (11th Cir. 1999) ........................................... ]6
Bender v. Williamsport Area School District,
475 U.S. 534 (1986)...................... ’.................................. 5?
Brown v. Board of 'Educ.,
347 U.S. 483 (1954).............. ............................................. 54
C heffer v. McGregor,
6 F.3d 705 (1 1th Cir. 1993) .......................................................... 16
IV
City o f Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283 (1982).................’.................................................... 27 78 31
Cuban American Bar Association v. Christopher,
43 F.3d 1412 (11th Cir. 1995) ............. ’.............................................. 26 45
Diamond v. Charles,
476 U.S. 54 (1986).......................................................... ' ?5
Florida Association o f Rehabilitation Facilities, Inc. v. State o f Fla. Department o f
Health and Rehabilitative Services,
225 F.3d 1208 (11th Cir. 2000) ....’.......................................... 17
Gollust v. Mendell,
501 U.S. 115 (1991)................................................................. 23
Hale Container Line v. Houston Sea Packing,
137 F.3d 1455 (11th Cir. 1998) .... ’............................................ 16
Heckler v. Matthews,
465 U.S. 728 (1984).............................................................. 5g
Jackson v. Motel 6, Multipurpose Inc.,
130 F.3d 999 (11th Cir. 1997) .................................................. 50 5 ,
Knight v. Alabama,
14 F.3d at 1534 ... ... 54, 57
Lewis v. Casey,
518 U.S. 343 (1996)............................................................ 49
Los Angeles v. Lyons,
461 U.S. 95 (1983) passim
Lucero v. Operation Rescue o f Birmingham,
954 F.2d 624 (11th Cir. 1992) ..... 17
Lujan v. Defenders o f Wildlife,
504 U.S. 555 (1992)
Milliken v. Bradley,
418 U.S. 717 (1977) ..
Motorcity o f Jacksonville v. Southeast Bank N.A.,
120 F.3d 1140(11th Cir. 1997)
Mt. Healthy City Board O f Ed. V. Doyle,
429 U.S. 274 (1977)
NOW v. Scheidler,
510 U.S. 249, 127 L. Ed. 2d 99 (1994)
Northeastern Fla. Chapter, Associated General Contractors o f America v
Jacksonville,
508 U.S. 656 (1993)
O 'Shea v. Littleton,
414 U.S. 488........
Prado-Steiman ex rel. Prado v. Bush,
221 F.3d 1266 (11th Cir. 2000)
Raines v. Byrd,
521 U.S. 811 (1997) ..
Regents o f Univ. o f California v. Bakke,
438 U.S. 265 (1978).
Rodriguez De Ouijas v. Shearson American Express,
490 U.S. 477 (1989)
Sierra Club v. Morton,
405 U.S. 727 (1972)
VI
25
Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26 ................................
Steel Co. v. Citizens fo r a Better Environment,
523 U.S. 83 (1998)...........................’
Texas v. Lesage,
528 U.S. 18 (1999).............................
Tracy , et al. v. Board o f Regents,
208 F.3d 1313(11th Cir. 2000) ........
Tracy v. Board o f Regents,
59 F. Supp. 2d 1314 (S.D. Ga. 1999)
United States v. Fordice,
505 U.S. 717 (1992)...........................
United States v. Hays,
515 U.S. 737 (1995)............................
United States v. Richardson,
418 U.S. 166 (1974)............................
Valley borge College v. Americans United,
454 U.S. 464 (1982)...................
Worth v. Seldin,
422 U.S. 490 (1975).............................
Wooden, et al. v. Board o f Regents,
32 F. Supp. 2d 1370 (S.D. Ga. 1999)
24, 25, 50
passim
15
. passim
. passim
passim
.......56
...... 58
.......30
passim
vii
DOCKETED CASES
Wooden et al. v. Board o f Regents,
Docket No. 00-14322A ..................................
FEDERAL STATUTES
28 U.S.C. § 1291 .... : ..................................
11th Cir. R. 26.1-1 ...........................................................
Fed R. App. P. 26.1 .........................................................
Fed. R. App. P. 4(a)(4)(A)...............................................
Fed. R. Civ. P. 23 ..............................................................
Fed. R. Civ. P. 24(a) .........................................
MISCELLANEOUS
1
........viii
........ Cl
....... Cl
...... viii
. passim
. passim
C.B. Whitman, An Essay on Texas v. Lesage, 51 Mercer L. Rev. 621 (2000)
s - ah mod, Mt. Healthy and Causation-in-Fact: The Court Still Doesn't Get It!,
51 Mercer L. Rev. 603 (2000) .................................
viii
Intervenors concur with the statement of jurisdiction set forth by Defendants
m their brief See Appellees’ Brief at xii-xv. Although we believe that the District
Court s June 16, 2000 Order is a final decision and order from which jurisdiction
may be conferred pursuant to 28 U.S.C. § 1291, we agree with Defendants that a
question exists as to whether the Motion for Reconsideration filed by Plaintiffs on
June 30, 2000 qualifies as a post-judgment motion under Fed. R. App. P.
4(a)(4)(A)-which would have extended the deadline for the filing of Plaintiffs’
Notice of Appeal. [R. 19-266]; [R. 19-267], If, given the substance of Plaintiffs’
Motion for Reconsideration, it is not deemed a post-judgment motion, then the filing
of their Notice of Appeal on August 17, 2000 would be untimely-since it was filed
approximately two months after the June 16, 2000 Order from which they now
appeal. [R. 19-275], If, however, this Court determines that Plaintiffs’ Motion for
Reconsideration qualifies as a post-judgment motion under Fed R. App. P.
4(a)(4)(A), then this Court properly has appellate jurisdiction pursuant to 28 U.S.C.
§ 1291.
STATEMENT OF JURISDICTION
IX
Whether the Supreme Court’s per curiam decision m Texas v. Lesage
modified or reduced the constitutional minimum for Article III
standing?
Whether the District Court erred in holding that Appellants Tracy,
Green and Davis lacked standing to pursue prospective injunctive relief
against the University of Georgia’s freshman admissions policy which
no longer applied to them; and in holding that Appellant Green lacked
standing to obtam damages and immediate admission to the University?
WTiether the District Court abused its discretion in denying class
certification to Appellants Tracy and Green?
Whether the District Court erred in holding that Appellants Wooden,
Hams, Bratcher and Jarvis lacked standing to obtam court-ordered
restructuring of Georgia’s public historically black institutions?
STATEMENT OF THE ISSUES
STATEMENT OF THE CASE
This case concerns an appeal of the District Court’s June 16, 2000 and July
24, 2000 decisions and orders reinstating its previous grant of summary judgment
against five of the six Plaintiffs on standing grounds and denying Plaintiffs’ motion
for class certification. [R. 19-266]; [R. 19-274], Although the facts and procedural
history of this case have been adequately detailed in prior orders of the District
Court, see Wooden, et al. v. Board o f Regents, 32 F.Supp.2d 1370 (S.D. Ga. 1999)
Tracy v. Board o f Regents, 59 F.Supp. 1314 (S.D. Ga. 1999) and District Court
Order dated March 12, 1999 [R. 17-241], Interveners provide the following
statement for this Court’s convenience:
A. Statement of the Facts
Originally filed by eleven individuals, this suit involved two distinct
-prongs." [R. 1-1], First, two of the Plaintiffs1, Kirby Tracy and Ashley Davis,
contended that they had suffered race discrimination when they were denied
freshman admission to the University of Georgia (hereinafter “UGA”) for Fall 1995
and Fall 1996 respectively. Id at 4-5. More specifically, these Plaintiffs asserted
that UGA's policy of giving *
Throughout this brief, Lntervenors will refer to the opposing parties as
Plaintiffs, and the Defendants Board of Regents of the University System and Stephen
Portch as “ Defendants” or “the Regents”.
affirmative consideration to, among others, applicants from minority backgrounds
violated the Equal Protection Clause and Title VI, 42 U.S.C.§ 2000d. Id. at 14-17.
The second prong concerned Defendants’ administration of the State’s three
public historically black institutions of higher education (hereinafter “HBIs”)-Fort
Valley State, Savannah State, and Albany State. Although no Plaintiff alleged that
he or she had been denied admission to these institutions on account of race-or that
any white student had been-their Complaint alleged, inter alia, that Defendants’
offering of “developmental studies” (remedial) classes on these three campuses was
itself a violation of the Fourteenth Amendment.2 See id. at 8-13.
Soon after the answer was filed, the Georgia State Conference of the
NAACP, the Southern Christian Leadership Conference and a number of individual
African-Amencan students (collectively, “the Intervenors”) moved to intervene as of
nght under Fed. R. Civ. P. 24(a). [R. 2-24], Intervenors’ basis for seekmg
interv ention was that the inescapable effect of the “remedies” sought by Plaintiffs
would be the reduction of educational opportunity for African Amencans-m a State
where the disparity in college attendance between white and black high school
graduates is already the largest in the Nation. Id at 2. Of at least equal concern
Plaintiffs asked that the Court order the Regents to stop offering these classes
on the HBI campuses, but made no similar request with respect to HWIs.
4
was the posture of those defending the suit: the State’s then-Attorney General-the
sole legal representative for UGA and the Regents-had, prior to the litigation,
publicly advised the University of his view that all consideration of race should
cease. Id. at 3-5. Over Plaintiffs opposition, the Court upheld the groups’ and
individual students’ entitlement to participate as full parties to the case. [R. 3-46],
The Court also ordered Plaintiffs to file an Amended Complaint, identifying
with greater specificity the nature of their claims and the relief they were seeking
[R. 2-40], Plaintiffs complied, producing a long list of “remedies,” mcluding, for
instance, that Defendants fund a special scholarship, that the Court order a merger
of Savannah State and Armstrong Atlantic University, an historically white
institution, that Defendants shift UGA’s agriculture programs to Fort Valley State;
and that goals of 25% white enrollment in graduate programs be attained. [R. 2-43]
In this First Amended Complaint, Plaintiffs also renewed their prayer for damages
and injunctive relief. Id.
While discovery was pending, Plaintiffs filed a motion asking the Court to
certify the case as a class action, naming Ashley Davis, Tom Jarvis, Kirby Tracy,
Ruth Hams, Mane McConnell, Thelma F. Richardson, Elizabeth Scarborough,
Terry Bratcher, and Michael C. Wooden as the appointed representatives [R. 3-
53], Intervenors opposed this Motion on the ground that Plaintiffs had failed to
5
meet the prerequisites of Rule 23, [R. 3-58], in that they themselves lacked Article
III standing, and, therefore, were precluded as a matter of law from being
designated class representatives. In addition, Intervenors argued that even if that
bar were not absolute, many other factors made the case unsuitable for class
treatment, let alone for certification of the omnibus class that Plaintiffs proposed.
Id.
The parties next filed extensive cross-motions for summary judgment.
Plaintiffs argued that UGA’s admissions policies “cried out” for a judicial
invalidation, that the HBIs were “shameful,” and that, m essence, the Court should
not allow fine points of Article III to prevent it from reaching these conclusions and
imposing Plaintiffs’ desired “remedy.” See, e.g., [R. 4-72; R. 4-77; R. 4-79; r 4.
87; R. 5-99; R-104;R. 8-119],
Intervenors vigorously opposed Plaintiffs with respect to the legality of both
UGA s admissions policies and the allegations concerning the HBIs. But
Intervenors pointed out, there was an even more basic defect to Plaintiffs’ case-
none of the remaining individuals had satisfied the requirements for Article III
standing. Noting that at the summary judgment stage, “mere allegations” would no
longer suffice, Intervenors rebutted Tracy’s and Davis’s claims to have been
subject to discrimination: an expert statistician who had analyzed UGA’s
6
admissions database testified that neither applicant would have gamed admission
had decisions been made strictly based on an “academic index” which was used to
predict freshman year grades. [R. 5-99 at Exh. B],
As for the seven Plaintiffs challenging the HBIs (“HBI Plaintiffs”) none of
them made the constitutionally mandatory showmgs of injury-m-fact, causation, and
redressability. Plaintiffs Wooden and Harris, who claimed to be suing m their
capacity as “educators”-both taught middle school-had neither shown a concrete
and particularized mjuiy nor pointed to specific facts that could support a claim of
third-party standing.3 [R. 8-119 at 18-22], Although Bratcher and Jarvis made
allegations concerning Fort Valley State - Bratcher that she had been treated
unfairly m connection with her employment and Jarvis that he had been
disappointed by the quality of two classes he had taken there4 * * -neither pointed to
evidence linking these allegations to Defendants’ alleged policies or showing that
On appeal, as he did at the District Court, Wooden attempts to manufacture a
standing argument by use of his children. However, Wooden made no mention of his
children m his Complaint and, at no tune, filed a motion or pleading making any of his
children a party to the lawsuit. [R. 8-119 at 24-25], Even more curious, at the District
Court, Wooden claimed to be bringing this lawsuit on behalf of a minor son id at 25-
26, not a minor daughter, as alleged here on appeal. See Brief of Appellants at 17- id
at 44-46. H ’
4 On appeal, Plaintiffs introduce a new claim on behalf Jarvis, who apparently
has graduated from Fort Valley State - namely, that he is injured by not being able to
support an alma mater that is free of race discrimination. See Appellants’ Brief at 44
7
they would likely be remedied if the court granted relief.5 [R. 8-119, at 26-28; id. at
15-22], On October 14, 1998, the HBI Plaintiffs, Mane McConnell, Thelma
Richardson and Elizabeth voluntarily withdrew their claims.6 [R. 13-168]
On July 24, 1998, Craig Green filed a complaint. According to his Complaint
and accompanying motion to amend, Green had been denied admission in 1997
while other individuals with lower academic credentials were admitted.7 [R. 5-
92], Green’s motion to amend was granted.
Subsequent discovery disclosed that Green had not, in fact, been passed by
minority applicants with lower “scores” than he, and that Green’s failure to gain
admission at the TSI stage was unrelated to the fact that UGA’s policy awarded
minority applicants 0.5 bonus points at that stage.8 [R. 14-197 at 2], Green had a
5 To take an obvious example, Intervenors noted that it would have been hard to
see how Bratcher-who taught developmental studies-would have benefitted from
eliminating those classes at Fort Valley. [R. 9-121 at 31]. As for Jarvis, the fact that
he no longer is enrolled at Fort Valley State, his claim to have standing to demand relief
such as the termination of developmental studies or the transfer of agricultural programs
from UGA becomes even more infinitesimal.
This Motion was granted - although Mane McConnell makes a mystenous
reappearance in Plaintiff-Appellants Brief. See Appellants’ Brief at 17, 44 47
7 Intervenors will leave it to the Defendants to describe the precise mechanics
of the vanous freshman admissions policies at issue. See Appellees’ Brief at 20-32
8 Although it is literally true that black-and white-students with lower academic
indexes were admitted at the TSI stage, that is an inevitable consequence of relymg on
8
TSI of 3.89, which included points for his academic index (2.39); status as a
Georgia resident (1.00); his male gender (.25); the fact that one of his parents had
not attended college (.25). Id. at 7. Green received none of the TSI points available
for extracurricular involvement, work experience, or curriculum, difficulty, as rated
by his high school counselor-nor, of course, non-white ethnicity. Id. at 7. As it
turned out, Green s TSI was not high enough, so UGA’s affirmative consideration
of race vd non would have made no difference. Id. at 8. The uncontested evidence
showed that the lowest-scoring student admitted at the TSI stage received a 4.40,
meaning that Green would not have benefitted had he been given 0.50-or, to put it
another way, every candidate admitted at the TSI stage (including every African-
American applicant then admitted) had more TSI points than Green even without a
plus factor for race.9 Id. at 7.
But it also turned out that UGA’s consideration of Green’s application had
nor stopped at the TSI stage Because Green’s TSI was among the 500 highest not
any measure other than AI to make admissions decisions. Cf Shapiro Deck
(comparable). The critical facts are (1) that at each stage of the process-AI, TSI, and
Edge Read, UGA admitted students in strict order of their AI, TSI, and Edge Read
scores; and (2) that every minority candidate admitted at each stage had a higher AI
TSI (even subtracting for the “plus” factor for race), and Edge Read score than Green’
[R. 14-197 at 2],
The obverse was also true: a black candidate with exactly the same credentials
as Green would have received precisely the same treatment.
9
admitted on that basis, UGA submitted his application to an “Edge Read,” a process
whereby two admissions officers (and a third, if necessary) reviewed candidates
with an eye toward identifying those whose individual achievements or potential
were not fully or accurately reflected in their. AI and TSI scores. Id. at 5-6. In that
process, Green’s application received a unanimous rating of minus two, the lowest
possible score, reflecting both readers’ decision to recommend “strongly against”
his admission. Id. at 8. Although students with neutral or even slightly negative
ratings were offered admission, the applications of those with average ratings of-
1.00 and below were denied. Id.
Without seeking the Court’s leave to amend-and notwithstanding grave
reservations expressed by Defendant parties-Green embarked on an eleventh-hour
search for some evidence that might support a claim that anti-white bias had
infected his Edge Read. To that end, Green was able to persuade the Defendants to
provide him not only with his own file and the names of the individuals who had
reviewed it (along with the written instructions they were given), but also with the
personal data for the numerous candidates whose files had been reviewed by Anne
Allen, one of Green’s edge readers, and ultimately with redacted versions of those
candidates actual applications for admission. In the end, much of Green’s
summary judgment pleadings were devoted to a claim that he had been
10
discriminated agamst on the basis of his race at the Edge Read stage -o r had at least
raised a triable question on that pomt. [R. 15-205 at 2], Evidence that the District
Court rejected. [R. 18-254 at 6],
B. Course of Proceedings and Dispositions in the Court Below
On January 6, 1999, the District Court issued its first order in Tracy’s and
Davis’s cases. See Wooden v. Board o f Regents, 32 F.Supp.2d 1370 (S.D. Ga
1999) [R. 14-191], The Court granted summary judgment against Davis on standing
grounds. Because the undisputed evidence showed that her application had been
eliminated from consideration entirely on academic grounds, at a stage before race
was even taken into account, the Court held, Davis had no standing to raise a
discrimination claim. Id. at 11 (“Had a black applicant presented the same GPA
and test scores, the result . . . would have been the same”).
The Court reached a different conclusion with respect to Tracy’s claim.
Because it had been conceded that a black candidate with Tracy’s academic
credentials would have been offered admission under the 1995 “dual track” policy,
Judge Edenfield explained, Tracy had standing to sue. Id at 17-18. The judge then
considered the constitutionality of the 1995 policy-and found it wanting.
Accepting for purposes of the decision the vitality of the legal standard announced
in Justice Powell’s opinion in Bakke, the District Court concluded that UGA’s two-
at 10-11. And while Bratcher and Jarvis had some contact with an HBI-the former
as a developmental studies instructor, the latter as a part-time graduate student at
FVSU-the District Court explained, they had failed to come forward with the sort of
specific evidence with respect to injury, causation, and redressability that Article III
and Rule 56 require. Id. at 13-15. Finally, the District Court held that none of the
four individuals had third-party standing because, inter alia, even in cases where
standing is claimed to litigate another’s legal rights, concrete, particularized injury
remains an indispensable requirement. Id. at 11, 13-14; see id. at 14-15.
On July 6, 1999, the District Court issued a third senes of decisions in this
case. See Tracy v. Board o f Regents, 59 F.Supp.2d 1314 (S.D. Ga. 1999); [R 18-
253]; [R. 18-255], First, the District Court ruled that, as a matter of law, Tracy was
not entitled to compensatory damages. [R. 18-255 at 5-6], Although the 1995
policy had been held unconstitutional, the Distnct Court explained, the Intervenors’
had presented unrebutted expert testimony that Tracy would not have be^n admitted
under a race-neutral plan: while 51 black students with lower grades and/or test
scores than Tracy had been offered admission that year, Intervenors had shown,
there were 584 applicants denied admission who had academic credentials
unambiguously superior to Tracy’s (all of whom would have been admitted ahead of
him under a race-neutral system). Id. at 5. The District Court also cited Tracy’s
13
deposition testimony, to the effect that (1) he did not believe that his application
should have been evaluated under the standard applied to black (and other
categories) of applicants, but rather that all applicants be held to the higher default
standard-a test that Tracy’s own candidacy would fail, and (2) that he had not
suffered harm as a result of UGA’s decision. Id. at 5.
The District Court further held that Plaintiff Green lacked standing. See
Tracy v. Board o f Regents, 59 F.Supp.2d 1314 (S.D. Ga. 1999). [R. 18-254], As
had been true of Davis’s claim, the undisputed evidence showed that Green’s race
played no role in UGA’s decision to deny him admission. The District Court also
held that Green’s allegations of racial bias at the Edge Read stage could not survive
summary judgment. Id. at 6 (“ [T]he record evidence permits no reasonable
inference that race plays a factor at this stage”).11 Finally, the Court declined to
certify the case as a class action. [R. 18-255], The Court did not reach the
questions of whether Tracy’s claim was sufficiently typical of the proposed class or
whether his representation was adequate, holding that a case of this sort-involving *
"The Court further held that. “One of the two “edge readers” for Green’s
application (the other could not be found, see 12/10/98 Albright Dep. At 86-87)
testified that, although she did not specifically remember reading Green’s application,
she never considered race when generatmg an [edge read] rating.” (citation omitted)’
14
fact-intensive inquiries into individual liability and relief-was not amenable to class
certification. Id. at 10-11.
On July 22,1999, Plaintiffs’ appealed the various orders of the District Court
to the United States Court of Appeals for the Eleventh Circuit. [R. 18-259], While
this appeal was pending, the Supreme Court issued a per curiam opinion in Texas v.
Lesage, 528 U.S. - , 120 S.Ct. 467 (1999), which, m the opimon of this Court,
“clarified the standing requirements for plaintiffs challenging race-based admissions
policies.” See Tracy , et al. v. Board o f Regents, 208 F.3d 1313 (11th Cir. 2000)
[per curiam). Accordingly, this Court vacated the District Court’s judgment and
remanded the case for further consideration in light of Lesage. Id.
As instructed, the District Court undertook a careful reexamination of its
earlier orders in light of Lesage. In so doing, the District Court noted that while
Lesage reasserted the principle that a plaintiff seeking forward-looking relief alleges
a sufficient injur/ merely by establishing “the inability to compete on an equal
footing, Lesage did not alter the other well-established requirements of Article III
standing.1* Thus, applymg both Lesage and the other Article III standing 12
12 Among the requirements cited by the District Court were: 1) the requirement
established in Northeastern Fla. Chapter, Associated Gen. Contractors o f America v
Jacksonville, 508 U.S. 656, 666 (1993) (hereinafter, “Jacksonville”), that a plaintiff
seeking to establish the “inability to compete equally” injury must demonstrate that he
or she is able and ready to [compete] and that a discriminatory policy prevents it from
15
requirements to each Plaintiff, the District Court reinstated its previous orders
granting partial summary judgment to Plaintiff Tracy, and summary judgment to
Defendants on all remaining claims. [R. 19-266],
Following this decision, three of the Plaintiffs -Tracy, Green and Davis-filed
a Motion for Reconsideration of the District Court’s Order, which was denied on
July 24, 2000. [R. 19-274], This appeal followed. [R. 19-275],
C. Standard Of Review
This appeal requires the application of a mixed standard of review. The
District Court s findings of fact are to be adopted, unless clearly erroneous. See
Hale Container Line v. Houston Sea Packing, 137 F.3d 1455, 1473 (1 1th Cir 1998)
(The Circuit Court “reviews a district court’s findings of fact for clear error, and
will not reverse unless, after ‘making all credibility choices in the fact-fmder's
choice’ and reviewing the record as a whole, it is clear that a mistake has been
made”); see also Balfour Beatty Bahamas, Ltd. v. Bush, 170 F.3d 1048, 1050 (11th
C^ 19" ) The jurisdictional issues presented herein, namely Article III standing,
are to be reviewed de novo. See Cheffer v. McGregor, 6 F.3d 705, 708 (11th Cir
doing so on an equal basis.” Id. at 5; (2) the requirement established m Adarand
C constructors, Inc. v. Pena, 515 U.S. 200 (1995) that a plaintiff seeking prospective
relief must assert an injury that is “(a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Id.
16
1993); Lucero v. Operation Rescue o f Birmingham, 954 F.2d 624, 627 (11th Cir.
1992). If the Article III standing threshold is satisfied, the orders denying class
certification and prospective injunctive relief are reviewed for abuse of discretion.
See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000)
(class certification); Florida Ass'n o f Rehabilitation Facilities, Inc. v. State o f Fla
Dept, o f Health and Rehabilitative Services, 225 F.3d 1208, (11th Cir. 2000)
(injunctive relief).
17
SUMMARY OF ARGUMENT
Satisfying the Article III requirements for standing to sue is fundamental for
any party seeking to invoke the power of the federal courts. The courts require a
showmg of “injury in fact” to a legally protected interest, which must be “concrete”
and particularized” and “actual” or “imminent.” Lujan v. Defenders o f Wildlife,
504 U.S. 555, 560-61 (1992). Second, the party must show a causal connection
between the injury and the challenged conduct. Id. And, third, it must be likely that
the injury will be “redressed” by a favorable decision. Id In cases challenging
affirmative action programs where prospective relief is sought, the Supreme Court
has held that the “mjuiy in fact” requirement can be satisfied by demonstratmg an
inability to compete on an equal footing.” Thus, a party challenging such action
may establish “mjuiy-in-fact,” by demonstrating that it is “able and ready” to
participate and that “a discriminatory policy prevents it from doing so on an equal
bas:s.” Northeastern Fla Chapter. Associated Gen. Contractors o f America v.
Jacksonville, 508 U.S. 656, 666 (1993). However, this does not end the inquiry;
they must also satisfy the other standing requirements-i.e., that injury is imminent,
that it is caused by the challenged action, and that it can be redressed by a favorable
decision.
18
The context and language of the Supreme Court’s decision in Texas v.
Lesage, 528 U.S. 18 (1999), which is the focus of the remand m this case, in no way
indicate that the Court intended to diminish or reduce these fundamental standing
requirements. Rather, the Court s purpose in Lesage was to expressly apply to the
Equal Protection context the principle that “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
decisions absent the discrimination precluded any finding of liability.” Beyond this,
Lesage did nothmg but reiterate the Jacksonville standard for proving “injury in
fact in cases where plaintiffs challenge ongoing race conscious policies and seek
prospective relief. Thus, Lesage does nothing to upset the traditional requirements
of standing—in particular, the requirements that the plaintiff be “able and ready” to
compete and that the injury be “imminent” and “redressable.”
As applied here, plaintiff Tracy had standing to see for damages, prevailed on
his challenge to the denial of admission to UGA, and was awarded nominal
damages. Having been admitted to UGA, however, Tracy will not be subject to the
freshman admissions program again. Plaintiffs Green and Davis, should they decide
to apply, will have to seek admission as transfer students, not incommg freshmen.
Thus, they too will never be subject to the freshman admissions program agam. As
19
a result, there is no imminent likelihood of harm and no injury to these plaintiffs that
would be redressable by any order of the court granting prospective relief. The
District Court was therefore correct in concluding that these plaintiffs lacked
standing to pursue prospective relief
Furthermore, the evidence shows that neither Green nor Davis was “able and
ready” to compete on an equal footing because neither was qualified for admission
under any scenario. Similarly, neither Green nor Davis could show that they were
prevented from competing due to the application of a discriminatory policy since
both were denied admission at a stage in the process where race was not a factor.
The District Court did not abuse its discretion in denying class certification
because plaintiffs failed to satisfy the prerequisites of Fed. R. Civ. P. 23. First
plaintiffs without standing to sue are not adequate class representatives. Second, as
to plaintiff Tracy, the District Court, having already ruled on the issue of liability,
considered and rejected Tracy’s request to represent a class for the purpose of
granting compensatory and injunctive relief. The court found that the task of
determining damages, e.g. requiring individual discovery and weighing the impact of
the demal of admission for each individual, and of determining injunctive relief for
each prospective class member-admission to UGA-was uniquely predicated on the
qualifications and circumstances of each individual. The Court’s conclusion that the
20
burdensome individual determinations outweighed any purported efficiency gams
from class treatment was not an abuse of discretion. July 6, 1999 Order. [R. 18-
255], Finally, the District Court was correct in finding that none of the plaintiffs
seeking the restructuring of Georgia’s historically black colleges had standing to
pursue their sweeping claims, which constitute nothing more than a “generalized
grievance” and are insufficient as a basis for Article III standing. See United States
v. Hays, 515 U.S. 737, 743 (1995); Sierra Club v. Morton, 405 U.S. 727, 739
(1972).
21
ARGUMENT
I. T E X A S V. L E S A G E DID NOT MODIFY OR REDUCE THE
FUNDAMENTAL REQUIREMENTS OF ARTICLE III STANDING
A. Fundamental Standing Requirements
Article III has been and remains an insurmountable obstacle for Plaintiffs who
argue that federal courts must address any and every “serious constitutional” claim
brought before it. See Lujan v. Defenders o f Wildlife, 504 U.S. 555, 560 (1992)
(“One of those landmarks, setting apart the ‘Cases’ and ‘Controversies’ that are of
the justiciable sort referred to in Article III-‘serv[ing] to identify those disputes
which are appropriately resolved through the judicial process,’-is the doctrine of
standing”) (,quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)) (citation
omitted). If all of the Article III criteria are not satisfied, then there is no basis for
standing. If there is no standing, then there is no federal court jurisdiction under
Article III over any of the claims raised.
There is an “irreducible constitutional minimum of standing” Id., at 560.
First, the plaintiff must have suffered an ‘injury in fact-an mvasion of a
legally protected interest which is (a) concrete and particularized, and
(b) ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’ Second,
there must be a causal connection between the injury and the conduct
complained of-the injury has to be ‘fairly . . . tracejable] to the
challenged action of the defendant, and n o t. . . th[e] result [of] the
independent action of some third party not before the court.’ Third, it
22
must be ‘likely,’ as opposed to merely 'speculative,’ that the injury will
be ‘redressed by a favorable decision.’
Id. at 560-61 (citations, footnote and internal quotations omitted). “[W]hen the
plaintiff is not himself the object of the government action or inaction he challenges,
standing is not precluded, but it is ordinarily ‘substantially more difficult’ to
establish.” Id. at 562 {quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).
The standing inquiry begins with the complaining party articulating a
“particularized” injury. Quite appropriately, before Article III jurisdiction can be
invoked, it is important to have a party before it with-an actual stake in the matter at
issue. See Raines v. Byrd, 521 U.S. 8 1 1 ,- - , 138 L.Ed.2d 849, 858 (1997); Gollust
v. Mendell, 501 U.S. 115, 125 (1991); cf. Lujan, 504 U.S. at 573-74 (“We have
consistently held that a plaintiff raising only a generally available grievance about
government-claiming only harm to his and every citizen’s interest in proper
application of the Constitution and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large-does not state an Article III
case or controversy ). To have a particularized injury “ ‘requires that the party
seeking review be himself among the injured.’” Id. at 563 {quoting Sierra Club v.
Morton, 405 U.S. 727, 734-35 (1972)).
23
The injury in fact requirement, like all of the standing requirements, require
that the injury be maintained throughout the duration of the litigation. C f NOW v.
Scheidler, 510 U.S. 249, - , 127 L.Ed.2d 99, 107 (1994). Furthermore, the injury
must not only continue to be “particularized,” but also “imminent.” It is not enough
to have been “injured” by a particular act or action before. A party seeking
injunctive relief must still be affected by the ongoing action. ‘“ Past exposure to
illegal conduct does not in itself show a present case or controversy regardimi
injunctive relief. . . if unaccompanied by any continuing, present adverse effects.’”
Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) {quoting O'Shea v. Littleton, 414
U.S. 488, 495-496 (1974)); Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, , 140 L.Ed.2d 210, 236-237 (1998) (same). If a particular policy does
not pose a real and imminent” threat, then there is no injury. See Lyons, 461 U S
at 107 n.8 ( It is the reality of the threat of repeated injury that is relevant to the
standing inquiry, not the plaintiff s subjective apprehensions The emotional
consequences of a prior act simply are not a sufficient basis for an injunction absent
a real and immediate threat of future injury by the defendant”) (emphasis in
original); see also Arizonans for O ff Eng. v. Arizona, 520 U.S. 43, - , 137 L Ed ?d
170,190 (1997) (“The standing Article III requires must be met by persons seeking
appellate review, just as it must be met by persons appearing in courts of first
24
instance. The decision to seek review ‘is not to be placed in the hands of
‘concerned bystanders’ persons who would seize it ‘as a vehicle for the vindication
of value interests’”) {quoting Diamond v. Charles, 476 U.S. 54, 56 (1986) (citations
omitted).
Additionally, the presence of an injury means nothing if there is no causal
connection between the injury alleged and the policy at issue. Obviously, there can
be no basis for challenging a policy which did not cause the injury complained of,
making this second requirement also indispensable for Article III standing purposes.
See Lujan, 504 U.S. at 560 (injury must be “ ‘fairly trace[able] to the challenged
action of the defendant, and not . . . [the] result [of] the independent action of some
third party not before the court’”) {quoting Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 41-42 (1976)).
Finally, whether or not a plaintiff demonstrates an injury and whether or not
there is a causal connection between that injury and the actions of the defendant.
Article III standing is not satisfied unless a federal court can order relief capable of
redressing this injury. If the plaintiffs) bringing the action cannot or will not be
helped by a favorable court ruling, then the redressability requirement is not
satisfied. See Steel Co., 140 L.Ed.2d at 235 (“Relief that does not remedy the
injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence
25
of the redressability requirement”); Cuban American Bar Ass 'n v. Christopher, 43
F.3d 1412, 1423 (11th Cir. 1995) (“For each claim stated in a complaint, there must
be a plaintiff who will achieve some redress by court’s actions.”).
The “irreducible constitutional minimum for standing” of injury in fact,
causation and redressability are required for every case and are not contingent on
the type of issue raised or the kind of party bringing the action. See Lujan, 504 U.S.
at j 76 ( [Assertion of a right to a particular kind of Government conduct, which
the Government has violated by acting differently, cannot alone satisfy the
requirements of Article III without draining those requirements of meaning’4)
(iquoting Allen v. Wright, 468 U.S.737, 754 (1984)).
Special Standing Rules for Challenges to Affirmative Action Plans
In an effort to carve out a special exception under Article III, Plaintiffs
nevertheless assert that they are permitted to challenge prospectively UGA’s
freshman admissions policy, regardless of whether the continued operation of the
program affects them-i.e., regardless of whether their injury is “imminent” or
redressable. See Appellants’ Brief at 20-21 (“Plaintiff Tracy’s transfer to [UGA]
did not . . . affect his standing to obtain prospective relief’). In support of this
proposition, Plaintiffs rely exclusively on Northeastern Fla. Chapter, Associated
26
Gen. Contractors o f America v. Jacksonville, 508 U.S. 656 (1993) and Texas v.
Lesage, 528 U.S. 18, 120 S.Ct. 467 (1999). Neither case provides such support.
In Jacksonville, an association of general contractors sued the city of
Jacksonville challenging a minority set-aside program for the awarding of city
contracts. 508 U.S. at 658. The issue there was whether, in order to have standing
to challenge the ordinance, the association was required to show that one of its
members would have received a contract absent die ordinance. Id.
After the Supreme Court granted certiorari on this issue, the city of
Jacksonville repealed the challenged ordinance in question and replaced it with a
new ordinance. Thus, before reaching the issue upon which certiorari was granted
the Court had to address the question of mootness. In deciding this issue, the Court
applied the well-settled rule that a defendant s voluntary cessation of a
challenged practice [after a plaintiff initiates litigation] does not deprive a federal
court of its power to determine the legality of the practice Id. at 661-662
{quoting City o f Mesquite v. Aladdin \s Castle, Inc., 455 U.S. 283 (1982) (where
challenged statutory language was repealed while case was pending in Court of
Appeals)). The Court then articulated the rationale behmd this “well-settled”
rule-namely, that a defendant’s voluntary cessation of a challenged practice does
not preclude it from re-engaging in the same (or very similar) practice after the case
27
is dismissed, thus threatening to disadvantage the plaintiff in the same fundamental
way. Id. ((quoting City o f Mesquite as having held that the case was not moot
because the defendant s repeal of the objectionable language would not preclude
it from reenacting precisely the same provision if the District Court’s judgment were
vacated.’”)
Plaintiffs rely on this ruling in Jacksonville as support for their position that
Plaintiff Tracy ’s subsequent transfer to the University of Georgia does not moot his
claim. See Appellants Brief at 28-30. However, Appellants overlook two critical
distinctions. First, unlike Jacksonville and City o f Mesquite, UGA’s voluntary
cessation of the 1995 freshman admissions policy that Tracy was subjected to
occurred some two years before Tracy initiated his lawsuit agamst the University of
Georgia, not after. Second, and more importantly, the purpose or rationale for this
rule is totally inapplicable to Tracy’s case. Unlike Jacksonville and City o f
Mesquite where there was a threat that the cities might reeract the challenged
policy, Tracy s admission to the University of Georgia completely eliminates any
threat that he might again be subjected to the policy that he challenges-namely, the
use of race in UGA’s freshman admissions process. Thus, Plaintiff Tracy’s case is
clearly distinguishable from Jacksonville and City o f Mesquite. Accordmgly,
Plaintiffs reliance in this regard is misplaced and must be rejected.
28
In evaluating the associations claims, the Court began its review by expressly
upholding the applicability of the Article III standing requirements to all cases,
including allegations of a violation of the Equal Protection Clause of the Fourteenth
Amendment. See id. at 663 ( The doctrine of standing is ‘an essential and
unchanging part of the case-or-controversy requirement of Article IIT”) (quoting
Lujan, 504 U.S. at 560). The Court then, after analyzing a series cases involving a
similar issue, aiticulated the following principle:
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.
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.
Id. at 666 (citations omitted) (emphasis supplied). Despite this declaration, the
Court was careftil to insure that the other Article III standing requirements were
satisfied. See id. at 666 n. 5 (“It follows from our definition o f ‘injury in fact’ that
29
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.”)
Nothing m Jacksonville suggests that even if the members of the contractor’s
association were no longer in a position to bid on any of these contracts, that they
would still have standing to challenge the minority contracting provision at issue.
Indeed, the Court’s holding is clearly to the contrary. The association had to
demonstrate that its members were “able and ready” to bid on contracts that would
be affected by the City of Jacksonville’s minority contracting program. See id. at
666; see also id. at 668 (“Unlike petitioner, which alleged that its members
regularly bid on contracts in Jacksonville and would bid on those that the city’s
ordinance makes unavailable to them, the construction association in Warth did not
allege that any member ha[d] applied . . . for a building permit or a variance with
aspect to any current project . Thus, un’ike the association in Wanh, petitioner
has alleged an ‘injury . . . o f sufficient immediacy . . . to warrant judicial
intervention'”) (,quoting Warth v. Seldin, 422 U.S. 490, 516 (1975) (citation
omitted) (emphasis supplied). Moreover, the members also were required to show
that a "discriminatory policy prevented them] from doing so on an equal basis.”
Jacksonville, 508 U.S. at 666. Thus, under Jacksonville, although a plaintiff
30
seeking to challenge the existence of a race conscious policy need not demonstrate
that, but for the consideration of race, they would have received the benefit of the
policy, in order to establish the “inability to compete on equal footing” injury, they
must demonstrate that they are qualified- i.e., “able and ready”-to compete for the
benefit and that a discriminatory policy prevents them from doing so on an equal
basis.
It there was any plausible doubt as to the continuing need for every plaintiff
in every case to not only demonstrate standing at the outset of the litigation, but also
to continue to possess standing throughout the course of the litigation-even where
there is an alleged denial of “the right to compete on equal footing” 13-the Supreme
Court resolved that issue in Adarand Constructors, Inc. v. Pena, 515 U S ^00 1
1 There is a real question as to whether a case, such as this one, constitutes even
a plausible allegation of a denial of the “right to compete on equal footing ” The
phrase's origins are from Justice Powell’s opinion in Bakke. See Jacksonville, 508
US. at 665 ( Justice Powell concluded that the ‘constitutional requirements of Art. HI’
had been satisfied, because the requisite ‘injury’ was the medical school’s ‘decision not
to permit Bakke to compete for all 100 places in the class, simply because of his
race’ ’) (quoting Regents ofUniv. o f California v. Bakke, 438 U.S. 265, 281 (1978)
Of course, in Bakke, Justice Powell also did not consider the use of race as one of many
factors in the context of university admissions to be a demal of a right to compete for
any applicant. See Bakke, 438 U.S. at 318 (“The applicant who loses out on the last
available seat to another candidate receiving a plus’ on the basis of ethnic background
will not have been foreclosed from all consideration for that seat simply because he was
not the right color or had the wrong surname . . . . His qualifications would have been
weighed fairly and competitively, and he would have no basis to complam of unequal
treatment under the Fourteenth Amendment”) (emphasis supplied)
31
(1995). In Adarand the Court addressed the issue of whether a contractor who
alleged having been denied the right to bid on certain contracts had standing to seek
prospective injunctive relief. Id. at 210. Standing was not assumed simply because
there was an allegation of a past injury; there had to be an allegation that Adarand
would be affected by the very program that he challenged once again. Id. at 210-
211 (“Adarand’s allegation that it has lost a contract in the past because of a
subcontractor compensation clause of course entitles it to seek damages for the loss
of that contract . . . But as we explained in Los Angeles v. Lyons, the fact of past
injury, ‘while presumably affording [the plaintiff] standing to claim damages . . . ,
does nothing to establish a real and immediate threat that he would again suffer
similar injury in the future’”) {quoting Lyons 461 U.S. at 105) (citation omitted)
(emphasis supplied). Thus, to sue for prospective injunctive relief, Adarand had to
show that there was a “particulanzed” and “imminent” injury that would result to
his company from the future operation of the contracting program. Id. (“If Adarand
is to maintain its claim for forward-looking relief, our cases require it to allege that
the use of subcontractor compensation clauses in the future constitutes ‘an invasion
of a legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural and hypothetical’”) {quoting Lujan, 504 U.S. at 560)
(footnote, citations, and internal quotation marks omitted) (emphasis supplied).
32
Thus, the Court in Adarand makes clear that while the “right to compete on
an equal footing” injury may demonstrate a “particularized” injury, without more, it
does not necessarily prove that this injury is also “imminent.” Compare id. at 211
(“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 . . . 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 prevents] 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’”) (citations omitted) with
id (“It is less clear, however, that the future use of subcontractor compensation
clauses will cause Adarand ‘imminent’ injury . . . . We therefore must ask whether
Adarand has made an adequate showing «h'a? sometime in ♦he near future it will bid
on another Government contract that offers financial incentives to a prime contractor
for hiring disadvantaged subcontractors”).
In order to make a showing sufficient for purposes of proving an “imminent”
injury, Adarand had to demonstrate not only that there would be such contracts in
the future, but also that, given his track record, that he would be likely to bid and be
33
affected by the awarding of such contracts. See id at 212 (“Because the evidence
m this case indicates that the Agency is likely to let contracts involving guardrail
work that contain a subcontractor compensation clause at least once per year in
Colorado, that Adarand is very likely to bid on each contract, and that Adarand
often must compete for such contracts against small disadvantaged businesses, we
are satisfied that Adarand has standing to bring this lawsuit”); c f United States v.
Hays, 515 U.S. 737, 743-44 (1995) (collecting cases holding that “even if a
governmental actor is discriminating on the basis of race, the resulting injury
accords a basis for standing only to those persons who are personally denied equal
treatment by the challenged discriminatory conduct”). Thus, prior to the Supreme
Court’s per curiam opinion in Lesage, it was clear that an injury had to be
"imminent,” before standing could be conferred under Article III.
Nevertheless, Plaintiffs argue that Lesage, by using the language of “an
ongoing or imminent constitutional violation to support a claim for fcr.vard-lookinu
relief, meant that as long as there still remains a policy that could be challenged as
unconstitutional, plaintiffs have standing to challenge that policy even if they are no
longer at risk of an “imminent” injury or are capable of being redressed by a
favorable decision. See Brief of Appellant at 20 (“The prospective desire and
expressed intent to seek a governmental benefit, coupled with an allegation of
34
general qualification, is sufficient to support Article III standing in cases brought to
enforce federal anti-discrimination laws designed and intended to end race
discrimination”) (emphasis supplied); see also id. at 24 (“Lesage . . . does not
deprive a plaintiff of standing if the benefit is actually obtained so long as it is
shown that the race based policy is maintained.”). Again, Plaintiffs misinterpret and
misapply the Supreme Court’s decision. See pp. 41-43 infra.
In Lesage, an applicant who had been denied admission to the University of
Texas doctoral program in education brought an action under sections 1981 and
1983 and Title VI of the Civil Rights Act of 1964, alleging that the school had
violated his rights by mamtaining a race-conscious admissions process. See id. at
467. The issue before the Court was whether the University’s ability to prove that
Lesage would not have been admitted even if race had not been considered, was
sufficient to protect it from liability under § 1983, and thus entitle it to summary
judgement.14
Although Appellants try to cast Lesage as a case about standing this
contention is highly debatable. See S. Nahmod, Mt. Healthy and Causation-in-Fact:
The Court Still D oesn’t Get It/, 51 Mercer L. Rev. 603 (2000); C.B Whitman An
Essay on Texas v. Lesage, 51 Mercer L. Rev. 621 (2000). As the District Court noted,
certiorari was granted on the narrow question of whether the burden shifting “same
decision” analysis of Mt. Healthy City Bd. O f Ed. V. Doyle, 429 U.S. 274 (1977) -
which allowed defendants to escape liability under the First Amendment - applied with
equal force to Equal Protection claims. Indeed, the decision did not even mention the
word standing. While it is clear that the Courts’ discussion at the end of the decision
35
In reversing the Fifth Circuit, the Supreme Court held that the ability of a
defendant to prove conclusively that the same result would have obtained even m
the absence of race was sufficient to support a finding of summary judgment in
favor of the defendant on the issue of liability under § 1983. The Court explained:
Simply put, where 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.
Id. at 468. However, after deciding this issue, the Court, in dicta, went on to
distinguish between claims for damages and claims for prospective relief. The
Court stated, “a plaintiff who challenges an ongomg 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.” Id at 468 {citing Jacksonville,
508 U.S. at 666 and Adarand, 515 U.S. at ?1 1).
As with Jacksonville, nothing in Lesage suggests that Plaintiffs seeking
forward-looking relief no longer have to demonstrate an “imminent” or
has implications for the type of injury that a plaintiff may allege in order to have
standing to bring a claim for prospective relief, ultimately, the Court declined to rule
on that question, thus creatmg uncertainty as to how much weight to attribute to the
Court’s brief discussion on this issue.
36
“redressable” injury. In fact, the Court makes clear that a party must be in a
position to benefit from forward-looking relief in order to seek it. See Lesage 120
S.Ct. At 469 ( 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”). The Court expressly did not
resolve ino issue of whether a viable claim for prospective injunctive relief existed
in that case. Id. (“It therefore appears, although we do not decide, that Lesage has
abandoned any claim that the school is presently administering a discriminatory
admissions process ). However, rather than relying on what the Court actually held,
in furtherance of its position, Appellants prefer to infer a holding on a matter not
even reached by the Court.15
Plaintiffs are, at best, speculatmg that, in the absence of the Supreme Court
having expressly discussed in Lepage the need for an “imminent” injury in order to
Plaintiffs argue that the Court, by finding that a plaintiff need not affirmatively
establish that he would have received the benefit in question for purposes seeking
forward-looking relief, also intended to hold that a person who already has received
the benefit may seek forward-looking relief. See Appellants’ Brief at 24. This
misconstrues Lesage. The facts showed that Lesage had not yet been accepted to the
doctoral program and thus was in a position to be subject to the policy agam-which is
not the case with Plaintiff'Tracy. Accordingly, Lesage, unlike Tracy, still satisfied the
Article III standing requirements of “imminent injury” and redressability This is a
critical distinction that Plaintiffs fail to address.
37
articulated in Jacksonville-i.e., the “inability to compete on equal footing”-is
sufficient to satisfy the “mjuiy-in-fact” prong of Article III standing for claims
seeking prospective relief - but not damages - even if the defendant can
conclusively prove that the plaintiff would not have obtained the benefit had race
not been a factor. In addition, under Lesage, the other prongs of standing must still
be met.16
In the absence of any express direction h orn the United States Supreme Court
overturning its prior Article III precedents-including the specific holding in
Adarand, requiring an “imminent” injury and an allegation of an “inability to
compete on an equal footing”-there is no reason to presume that this aspect of the
well-established rules of standing no longer applies. C f Rodriguez De Ouijas v.
ShearsowAmerican Express, 490 U.S. 477, 484 (1989) (“If a precedent of this
Court has a direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own
decisions ) (emphasis supplied); Motor city o f Jacksonville v. Southeast Bank N.A.,
120 F.3d 1140, 1143 (11th Cir. 1997) (same). Thus, to invoke federal court
This interpretation of Lesage is the one adopted by the District Court in this
case and applied to the Plaintiffs claims on remand. See TR 19-266 at 3-71 TR 19 974
at 2-6],
39
articulated in Jacksonville-i.Q., the “inability to compete on equal footing”-is
sufficient to satisfy the “injuiy-in-fact” prong of Article III standing for claims
seeking prospective relief - but not damages - even if the defendant can
conclusively prove that the plaintiff would not have obtained the benefit had race
not been a factor. In addition, under Lesage, the other prongs of standing must still
be met.16
In the absence of any express direction from the United States Supreme Court
overturning its prior Article III precedents-including the specific holding in
Ada rand, requiring an “imminent” injury and an allegation of an “inability to
compete on an equal footing”-there is no reason to presume that this aspect of the
well-established rules of standing no longer applies. C f Rodriguez De Ouijas v.
Shear son/American Express, 490 U.S. 477, 484 (1989) (“If a precedent of this
Court has a direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case which
directly controls, leavmg to this Court the prerogative of overruling its own
decisions ) (emphasis supplied); Motorcity o f Jacksonville v. Southeast Rank N.A
120 F.3d 1140, 1143 (11th Cir. 1997) (same). Thus, to mvoke federal court
16 This interpretation of Lesage is the one adopted by the District Court in this
case and applied to the Plaintiffs claims on remand. See [R. 19-266 at 3-7]• [R 19-274
39
jurisdiction under Article III, plaintiffs must show that there is a “particularized”
injury, which is “imminent,” a causal connection between that “injury” and the
defendants’ conduct, and that the “injury” caused by the defendant’s conduct can be
redressed by the court.
II. THE DISTRICT COURT DID NOT ERR IN EXAMINING THE
INDIVIDUAL STANDING CLAIMS OF PLAINTIFFS TRACY
GREEN AND DAVIS
As described above, Lesage did not modify or reduce the constitutional
requirement for Article III standing. Rather, it merely reiterated a previously
approved method by which a plaintiff challenging an ongoing race-conscious
program and seeking forward-looking relief may satisfy the “mjury-in-fact” prong of
Article III standing. As Lujan, Jacksonville, Adarand, and Lyons make clear, in
order to establish Article III standing, all of the elements of standing must be
met-not just “injury-in-fact.” Thus, after U sage, the proper analysis for evaluatmg
claims such as those presented here is to: 1) determine whether the plaintiff has a
concrete and particularized injury,” which can be established by the plaintiff
showing that they were “able and ready” to compete for the benefit and that a
discriminatory policy prevented them from doing so; 2) determine if the injury
alleged is imminent; 3) determine if there is a causal connection between the injury
40
and the challenged conduct; and 4) determine whether the injury caused by
defendant s conduct can be redressed by the Court. In applying this legal
framework to each of the plaintiffs, the District Court found that none had standing
to pursue a claim for prospective injunctive relief, and that Davis and Green lacked
standing to bring a suit for damages. A review of the undisputed facts reveals that
this decision of the District Court was correct.
As is to be expected, Plaintiffs vigorously challenge the District Court’s
interpretation of Lesage, and the court’s use of the above framework to evaluate
their claims. See Appellants’ Bnef at 23 (“The District Court . . . has defied this
Court, ignored Lesage, and created the anomalous situation Lesage was designed to
avoid.”); Id. at 24 (“as applied by the District Court, Lesage is practically
meaningless. Under the District Court’s interpretation, Lesage requires a plaintiff to
show an ability to obtain the benefit sought. This was exactly what Lesage was
designed to avoid ”) However, in criticizing the District Court Plaintiffs
unwittingly expose fundamental flaws in their own interpretation of Lesage, as well
as a profound misunderstanding of the District Court interpretation and application
of Lesage.
The first, and most fundamental, flaw in Plaintiffs interpretation of Lesage is
their contention that the prospective desire and expressed intent to seek a
41
governmental benefit, coupled with an allegation of general qualification, is
sufficient to support Article III standing in cases brought to enforce federal anti-
discrimination laws designed and intended to end race discrimination.” Plaintiffs'
Brief at 20. Plaintiffs cite Jacksonville as support for this proposition. However, as
discussed above, the Jacksonville Court found it necessary to insure that the other
elements of Article III standing satisfied. See Jacksonville, 508 at 666 n. 5. Not
surprisingly, Plaintiffs fail to cite this footnote, nor do they provide an explanation
for why the Court found it necessary to address these points. Neither do Plaintiffs
address the line of cases that require all elements of standing to be meet in order to
grant plaintiffs standing to seek prospective injunctive relief of this sort. See
Adarand. 515 U.S. at 210-11 -Lyons, 461 U.S. at 102-05.
In addition, Plaintiffs are mistaken when they state, “Lesage does not
deprive a plaintiff of standing if the benefit is actually obtained, so long as it is
shown that the race based policy is maintained. Whether or not the benefit sought is
obtained is utterly irrelevant under Lesage." Id at 24. First, neither Jacksonville
nor Lesage state this proposition, and indeed, both cases make it clear that the
plaintiffs had not yet received the benefit. Moreover, if the requirements that the
injury be 'imminent” and capable of redress mean anything at all, as Adarand and
42
the other affirmative action standing cases suggest, then clearly a plaintiffs standing
will be affected by receiving the benefit.
Apparently, Plaintiffs’ repeated mischaracterizations and misinterpretations
stem, m part, from their misinterpretation of the District Court’s interpretation of
Lesage. On page 24 their Brief, Plaintiffs state, “ [u]nder the District Court’s
interpretation, Lesage requires a plaintiff to show an ability to obtain the benefit
sought. This was exactly what Lesage was designed to avoid.” In pomt of fact, this
is exactly what Lesage and Jacksonville require. See Jacksonville, 508 U.S. at 666
(expressly holding that party must demonstrate that it is “able and ready” to
compete in order to have standing). Plaintiffs mistake the “ability to obtam the
benefit” with actual proof that, but for race, the benefit would have been obtained.
This is a critical mistake. By evaluating the plaintiffs ability, as the District Court
did, it was merely insuring that the plaintiffs were qualified, i.e., “able and ready” to
compete for the benefit. The District Court never required any of the Plaintiffs to
prove that they would have been admitted in the absence of any consideration of
race.
For all of these reasons, Plaintiffs interpretation of Lesage should be rejected.
43
A- The District Court Correctly Held that Plaintiff Tracv Lacked
Standing to Seek Prospective Relief
Plaintiff Tracy challenged UGA’s 1995 admissions program and prevailed.
However, he was admitted to UGA as a transfer student. In addition, in 1996, UGA
significantly changed its admissions program. Because of his prior admission, the
District Court found Tracy’s claim for prospective relief moot. Order of July 6,
1999 at 8. On remand from this Court, the District Court found that Tracy
“lack[ed] the imminence requirement necessary for standing to seek a prospective
injunction. [R. 19-274 at 4], The undisputed facts support this conclusion. See
pp.l 1-12 supra. By virtue of Tracy’s status as a UGA student, he does not have to
apply under any admissions policy in order to secure the right to attend school there.
There is no plausible argument that the aspect of the UGA’s freshman admissions
policy challenged here poses any threat to him whatsoever, much less an “imminent
one. See [R. 19-266] (“to show that his injury is sufficiently imminent, Tracy
must demonstrate that ‘in the relatively near future’ he will again be subjected to the
challenged conduct {quoting Adarand, 515 U.S at 211; accord Lyons, 461 U.S. at
102-105).
In addition to lacking an “imminent” injury, Tracy’s admission to UGA
means that he will not benefit whatsoever from the District Court enjoining the
44
future operation of the policy - i.e., his injury is not redressable. This provides an
additional basis for denying Tracy standing to seek prospective relief. See Steel
Co., 140 L.Ed.2d at 235 (“Relief that does not remedy the injury suffered cannot
bootstrap a plaintiff into federal court; that is the very essence of the redressability
requirement”); Cuban American Bar Ass 'n, 43 F.3d at 1423 (“For each claim stated
in a complaint, there must be a plaintiff who will achieve some redress by court’s
actions.”).
Although Plaintiffs offer several arguments in opposition to the District
Court’s decision, each is premised on their erroneous interpretation of Lesage, and
therefore must be rejected. See Plaintiffs’ Brief at 26-31; See also pp. 40-42 supra
(discussing Plaintiffs’ misinterpretation of Lesage.)'1 Accordmgly, the District
Court properly held that Tracy lacked standing to seek prospective injunctive relief
against the UGA’s freshman admissions policy.
H- TheJ)i strict Con rt Correctly Held that Plaintiff Green Lacked
Standing to Seek Prospective injunctive Relief or ImmeHiatP
Admission to UGA
In reconsidering Green’s claims for prospective relief and for damages, the
District Court again applied the legal framework articulated in Lesage, Jacksonville, 17
17 Because the Regents offer a compelling rebuttal to Plaintiffs’ arguments, and
due to the space limitations, Intervenors join this portion of the Regents’ brief. * See
Regents’ Brief at 53-55.
45
Adarand and Lyons. The District Court determined that Green, unlike Tracy, failed
to satisfy the “injury-in-fact” requirement in addition to the requirements of
“imminence” and redressability.18 See [R. 19-266 at 5],
With respect to Green’s claims for § 1983 damages, the District Court found
that Green would have been rejected even if he had been given the bonus points at
the race-conscious stage of the admissions process. Accordingly, under Lesage,
the Mt. Healthy City Bd. o f Education v. Doyle, 429 U.S. 274 (1974), “same
decision” affirmative defense shields UGA from § 1983 liability. See id. at 5.
As for Green’s Title VI claims for retrospective relief, which are subject to
the more lenient Jacksonville standard, the District Court again found Green to lack
standing. More specifically, the court applied Jacksonville’s two-step analysis to
determine whether Green could demonstrate that he suffered from the “inability to
compete on equal footing” injury. After evaluating Green’s claim, the District Court
concluded, “because Green would have proceeded to the [Edge Read] stage (where
he was rejected) even had he received the racial bonus points, ‘he simply cannot 1
1 After being denied admission to UGA, Green enrolled at Dalton College. Thus
if Green were to apply for admission to UGA, he would subject to the transfer
admissions process (which is race neutral), not the freshman admissions policy that he
hopes to enjoin. Since Green will be unaffected by any decision to eliminate UGA’s
freshman admissions policy, for the same reasons as Tracy, whatever injury he mav
claim the policy causes, as to him, it is neither “imminent” nor “redressable.”
46
show he was otherwise qualified to compete for admission equally with minority
applicants.’” [R. 274 at 4] {quoting [R. 266 at 5] (citing the evidentiary findings in
its previous decision in Tracy v. Board o f Regents, 59 F. Supp.2d at 1317-1321);
see also pp. 8-10 supra. In addition, because Green was rejected at a stage in the
admissions process that did not consider race, he could not show that his
opportunity to compete on an equal basis’ was prevented by a discriminatory
policy -which is the second requiiement of Jacksonville's analysis.19
Again, the facts clearly support the District Court’s conclusion. It is
incontrovertible that Green received precisely the same treatment at the A1 and TSI
stages of UGA’s admissions process as would have a black applicant presenting the
same application file; that every black student admitted was rated higher on the
relevant nonracial criteria than was he; and that race played no role in UGA’s
Indeed, the court noted that had the Edge Read process not been race neutral,
Green would have met the Jacksonville requirements for standing. [R. 274 at 4]
47
decision to deny him admission.20 See p. 8-10 supra ; Tracy, 59 F. Supp.2d at
1316-17; [R. 14-197]
Accordingly, the District Court did not err in holding that Green lacked
standing to bring his claims for damages or his claims for prospective relief21
C Ihe District Court Correctly Held that Plaintiff Davis l acked
Standing to Seek Prospective Injunctive Relief or to Bring a Claim
of Gender Discrimination
The arguments asserted by Davis in support of her appeal need not lonu
detain this Court. In concluding that Davis did not have standing to seek
'In dismissing Green’s newly asserted evidence that the Edge Read process was
not race neutral, the District Court stated:
Green maintains that, because UGA has admitted that the ER’s
purpose is to create a well rounded class, and that ER counselors
are not explicitly forbidden to consider an applicants race, UGA
cannot carry its burden of proof and demonstrate race was not a
factor in the Edge Read process that resulted in Green’s denial.
However, as with all elements of his case, ‘the burden is on the
plaintiff to establish all the requirements of standing.’ . The
[evidence cited by plaintiff] does not suffice to meet Green’s
burden. At most, it merely demonstrates that UGA’s [Edge Read
could have considered race. Without some evidence that the
process in fact did consider applicants’ race, Green has not
established that the ER is race-conscious. He therefore has not
shifted the burden to UGA to make a same-decision showing.
:iPlaintififs offer three frivolous arguments in defense of Green’s standing claim
Due to page limitations and the quality of the Regents’ responsive arguments^
Intervenors join that portion of the Regents’ brief. See Regents’ Brief at 59-62.
48
prospective relief or to pursue a claim of gender discrimination, the District Court
noted that Davis was rejected at the initial phase of the admissions process which
did not consider race. See [R. 19-274 at 3], This facts support this decision. See
[R. 19-274 at 2-3], According to the Court, Davis “simply cannot show that she
was . able to compete for admission on an equal basis with minority students but
was prevented from domg so by a race-conscious admissions process.” In Davis’s
case, her grades and test scores, not her race and/or gender, prevented her from
competing equally with the other applicants.” Id. Thus, the District Court did not
err in denying her standing.
HI- THE DISTRICT c o u r t d id n o t a b u s e its d is c r e t io n in
DENYING CLASS CERTIFICATION
Although Plaintiffs lack of standing to seek prospective injunctive relief is
dispositive of their claims for class certification, See Lewis v. Casey, 518 U S 343
357 (1996) (“even named plaintiffs who represent a class must allege and show that
they personally have been injured, not that injury has been suffered by other
unidentified members of the class to which they belong and to which they purport to
represent ), there are additional reasons for affirming the District Court’s denial
class certification. Chief among them is Plaintiffs failure to offer any evidence
showing that the District Court abused its discretion in denying class certification in
49
this case. Indeed, the one and only Eleventh Circuit case they cite held nothing
more than that a District Court (the same one that denied certification here) did not
abuse its discretion in certifying a class in a particular case. In pomt of fact, the
District Court’s decision was entirely correct.
First, as the decision below underscored, the common questions m this case
do not predommate over individual ones. Although Plaintiffs suggest the existence
of a blockbuster common issue-did Defendants engage in illegal
discrimination-decisions of this and other courts have specifically held that very
question does not suffice to require (or even permit) class treatment under Rule
23(b). See Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998);
Jackson v. Motel 6, Multipurpose Inc., 130 F.3d 999 (11th Cir. 1997). To the
contrary, where damages are sought in addition to an injunction, the rule is that
certification will ordinarily not be appropriate. And even if the issue of damages
were, as Plaintiffs would have it, “subordinate” to “equitable relief for applicants
who still desire admission,” the latter inquiry-whether any particular disappointed
applicant should, in fact, be entitled to admission-turns out to be an extraordinarily
fact-intensive one. See Allison, 151 F.3d at 420 (district court did not abuse its
discretion in refusing to certify claims under Rule 23(b)(3) where the success of
plaintiffs claims ultimately turned on the “special circumstances of each
50
individual’s case”); Jackson, 130 F.3d at 1006 (‘‘[Plaintiffs’ claims will require
distinctly case-specific inquiries into the facts surrounding each alleged incident of
discrimination”).22
Nor can Tracy or Green be considered “typical” claimants. As was
explained above, neither has any direct, personal interest in the contours of UGA’s
current or future admissions policy. Moreover, the District Court did not abuse its
discretion to hold that Tracy, who (1) would not have been admitted in 1995
anyway, (2) believed that UGA s decision denying him admission was correct; (3)
claimed to have suffered no compensable harm as a result of UGA’s decision; and
(4) has, since before class certification was even sought, been enrolled in UGA
having successfully gamed admission through ordinary transfer rules, for those
reasons, hardly “typical” of those unfairly disadvantaged by the 1995 policy. As for
Green, the Court’s decision respecting his lack of standing settles a fortiori his
claim to be a class representative, but even if it did not, his status as an individual
whose claim of disparate treatment derives from allegations of “surreptitious” racial
The thrust of Plaintiffs’ submission is that the case could settle and all these
considerations could be worked out in a fairness hearing. This, of course, is another
way of arguing that the Court should not get bogged down in the niceties of the claims
of the individuals who are actually before the Court-a contention the court below
eloquently and correctly rejected as inconsistent with governing law.
51
correctly held that the would-be plaintiffs lacked standing to obtain court ordered
restructuring of Georgia s historically black public institutions.
Although, the question of Article III standing is the only issue before this
Court with respect to the HBI plaintiffs, the majority of the Plaintiffs’ argument is
d en ted to: (1) re-hashing their indictment of the HBIs; (2) reinforcing their attack
on UGA’s admissions policies; and (3) collecting cases recognizing broad standing
to effect desegregation; none of which suffices to provide a basis for this Court
reaching a conclusion different from the District Court. As such, Intervenors’
argument will first respond to these irrelevant contentions, and then will turn to a
discussion of the deciding standing issue.
The drumbeat phrases of Appellants’ indictment-that Georgia’s HBIs are
“inferior,” “black enclaves” and shameful vestiges of the de jure era whose present-
day existence is the result of a virtual conspiracy against the Constitution-reflect a
serious misapprehension of the law and a gross distortion of historical fact. Neither
the Fourteenth Amendment nor the Supreme Court’s gloss on it in United States v.
Fordice, 505 U.S. 717 (1992), support the “eradication” of HBIs that Plaintiffs
demand, rather, the Equal Protection Clause imposes upon the State a set of
obligations to the victims of racial discrimination, Fordice ( a decision that
ultimately resulted in upgrading, not closmg HBIs) and Milliken v. Bradley, 418
53
U S- 717 (1977), simply cannot be read as a categorical condemnation of
historically black institutions, including those that are and have been predominantly
black. See also Knight v. Alabama, 14 F.3d at 1534, 1546 (11th Cir. 1994)
(rejecting claim that Brown v. Bd. OfEduc., 347 U.S. 483 (1954), prohibits court-
ordered enhancement of public predominantly black institutions). See also Adams v.
Richardson, 480 F.2d 1 159, 1165 (D.C. Cir. 1973) (en banc) (noting the important
role that HBIs have played in higher education; Revised Criteria Specifying the
Ingredients of Acceptable Plans to Desegregate the State Systems of Public Higher
Education, 43 Fed. Reg. 6658, 6660 (Feb. 15, 1978).
The Supreme Court’s decision in Fordice did not announce the rule of perse
invalidity claimed for it. To the contrary, the Court held that, even in a State with a
history of de jure segregation in higher education, the fact that an institution is
predominantly white or black does not itself make out a constitutional violation,”
''O'1 u s at 743- an<h inherent in the decision’s recognition that strengthening HBIs
is sometimes constitutionally compulsory, see 505 U.S. at 743, is an
acknowledgment that the existence of HBIs is not constitutionally impermissible in
itself.
This Court, in Knight v. Alabama, 14 F.3d 1534 (11th Cir. 1994), expressly
rejected an assertion that Court-ordered strengthening of a predominantly black
54
institution would produce unconstitutional segregative effects, the Eleventh Circuit
explained that Fordice did “not go so far as to say that enhancement of HBIs is
forbidden under Brown ,” 14 F.3d at 1546, notmg that the Supreme Court’s decision
had “expressly held that upgrading [might be constitutionally] necessary.” I d 24
Of course, all of this is besides the point here because Plaintiffs’ indictment
against Georgia s HBIs is insufficient as a matter of law to support Article III
standing. Simon, 426 U.S. at 40 (1976) (“abstract concern . . . does not substitute
24In addition, while Plaintiffs cite Adams v. Richardson, 480 F.2d 1159, 1165 &
n. 11 (D C. Cir. 1973) (en banc) (per curiam), a broad decision on higher education
desegregation, in support of its indictment against the HBIs, it is strangely silent about
two Georgia district court opmions addressing two of the very institutions involved
here, that of the District Court in Ants v. Board o f Regents, 1981 U.S Dist LEXIS
18152 (S.D. Ga. 1981) - which held, inter alia, that there had been no showmg that
the current racial composition of [Savannah State University and Armstrong-Atlantic
State University] is [not] the result of . . individual choice,” id. at and that “the
overwhelming weight of official activity had been toward increasmg not retarding
•disestablishment [of the dual system],’” id at 15 and - that of the District Court m
Hunmcutt v. Board of Regents, Civ. Action No. 86-235-1-MAC (WDO) (“Hunnicutt
II”), which resolved by consent judgment a claim that Defendants had breached “their
affinn-itwe duty . . . to eliminate the racial identity of [Foil Valley State] and to
eliminate the academic inferiority of [its] students, faculty, and staff.” [R-166 at Exh
A] Hunnicutt II was certified as a class action, involving a plaintiff class the definition
and claims of which would seem to comprehend (and thereby preclude) those of
Plaintiffs in general with regard to Fort Valley, but Plaintiffs Bratcher and Jarvis in
particular. See id.
Furthermore, it is important to note that there is not even an allegation that any
Plaintiff had any contact or desired to have any contact with the third HBI at issue here
Albany State University; not as a faculty member, former student or parent of someone
whom they might have sent there.
55
for the concrete injury required by Art. Ill”); United States v. Richardson, 418 U.S
166, 177 (1974) (standing may not be conferred by “a mere ‘interest in a problem,’
no matter how longstanding the interest”) (quoting Sierra Club); see also Valiev
Forge, 454 U.S. at 485 ( the psychological consequence presumably produced by
observation of conduct with which one disagrees” cannot count as injury-in-fact); cf
Lujan, 504 U.S. at 567 n. 3 (rejecting suggestion that an individual with a “genuine
interest” in the subject matter would have standing).
In challenging the District Court’s order, Plaintiffs offer limited evidence in
support of each would-be plaintiffs’ claims. See Appellants’ Brief at 44. More
troubling, perhaps, is the fact that this sparse discussion contains two glaring factual
mistakes: First, Plaintiffs defend the standing of Plaintiff Mane McConnell, whose
claim was voluntanly dismissed with prejudice (and never adjudicated) in the
Distnct Court, but do not mention Ruth Harris, who apparently remains an
appellant. Second, Plaintiffs’ basis for Wooden’s standing is that he has “a minor
daughter whom “he would send to his local university, Savannah State University,
but for its segregated status,” Bnef of Appellants at 17, 47; yet, Wooden never
56
sought to bring suit on her behalf, nor is she a minor. See Doc. 133 (.Deposition o f
Wooden) at 5-6, 28.25
With respect to the other two would-be plaintiffs, Plaintiffs submit that: kiDr.
Bratcher has been deprived from teaching in an integrated learning environment free
of racial segregation. . . . and Jarvis [is] prevented from supporting [his] alma
mater[] free of race discrimination.” See Appellants’ Brief at 44. Thus, in
summarizing plaintiffs injuries, Plaintiffs conclude, “ [e]ach HBI Plaintiff have [sic],
experienced the indirect effects of discrimination by being required to pursue their
25With respect to Plaintiff Wooden, the law does not allow him salvage
jurisdiction by a bald, late-breaking claim to have sued on behalf of a minor child In
Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986), a case involving
religious rights of high school students, the Supreme Court rebuffed a similar attempt
to claim standing. After ruling that the respondent school board member lacked
standing in his official and individual capacities, the Court held that he could not
proceed as the parent of a student at the high school and dismissed the case for lack of
jurisdiction. Because the respondent had not “fil[ed] an appropriate motion or
pleading” asserting his son’s interest in the case and “failed to adduce factual support
for that interest, the Court concluded, he "plainly was not a party” in his parental
capacity, rl. at 548 The Eleventh Circuit’s decision in Adler v. Duval County School
Bd- ’ 112 F 3d 1475 0 ]th Cir. 1997), is to the same effect: in holdmg that the case had
to be dismissed because the original plaintiffs had, by graduating, lost the necessary
cognizable interest in the legality of their former school’s policies, the Court of Appeals
rejected an effort by two of the plaintiffs’ parents (whose names appeared in the
caption) to substitute as plaintiffs their other children, who were still students at the
school. See 1 12 F.3d at 1478 (“[I]n the complamt neither parent is described as a
plaintiff [in his or her own right], nor were any allegations made in the complamt
regarding the existence of other children. Former students are the only parties
[properly] before us”). So, too, is Michael C. Wooden, the only Plaintiff from his
family properly before this Court.
57
respective associations with the HBI’s within the context of racial segregation
caused by the discriminatory exclusion of all non-black applicants.” Appellants’
Brief at 47
Unfortunately for Plaintiffs, indirect injuries such these do not satisfy the
requirements of Article III standing. That is the import of Allen v. Wright, 468 U S
737 (1984), which dismissed for lack of Article III standing the claims of African-
Ameiiean parents who maintained that the defendants’ policies were contributing to
racial segregation in the public schools attended by plaintiffs’ children. See 468
U S. at 756-57 (“despite the constitutional importance of curing the injury alleged
by respondents . . . the federal judiciary may not redress it unless standing
requirements are met ). United States v. Hays is to the same effect: “even if a
governmental actor is discriminating on the basis of race, the resulting injury
accords a basis for standing only to those persons who are personally denied equal
treatment by the challenged discriminatory conduct.” 515 U.S. at 743-44 (quoting
Alien, 468 U.S. at 728 and Heckler v. Matthews, 465 U.S. 728, 740 (1984))
Thus, as the District Court held, “something more than ‘a generalized
grievance against allegedly illegal governmental conduct’ must be shown to
establish standing.” [R-241 at 8] (citing United States v. Hays, 515 U.S. 737, 743
(1995) and Sierra Club v. Morton, 405 U.S. 727, 739 (1972). Because none of the
58
Plaintiffs-Michael C. Wooden, Ruth Hams, Terry Bratcher and Tom Jarvis-have
demonstrated anything beyond a “generalized grievance,” the District Court's
decision should be upheld.
59
CONCLUSION
For the foregoing reasons, Intervenors respectfully request that this Court
affirm the District Court’s June 16, 2000 and July 24, 2000 Orders.
I. Kenneth Dious
Kenneth Dious & Associates
115 Sycamore Drive, Suite 1B
Athens, Georgia 30606
(706) 546-9013
John M. Clark
P.O. Box 752
Elberton, Georgia 30635
(706) 283-9732
Respectfully submitted,
Elaine R. Jones, Director-Counsel
Theodore M. Shaw
David T. Goldberg
Dennis D. Parker
Victor A. Bolden
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 965-2200
Counsel For Appellee-Intervenors
60
Pursuant to 11 Cir. Local Rule 28-l(m), the undersigned certifies this brief
complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).
I. EXCLUSIVE OF THE EXEMPTED PORTIONS IN Fed. R. App. P. 32(a)(7),
THE BRIEF CONTAINS:
A. 13,656 words
II. THE BRIEF HAS BEEN PREPARED:
A. in proportionately spaced typeface using:
Software Name and Version: WordPerfect 8
in (Typeface Name and Font Size): Times New Roman 14pt
III. THE U N D E R S I G N E D U N D E R S T A N D S A MAT E RI AL
MISREPRESENTATION IN COMPLETING THIS CERTIFICATE OR
CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN Fed. R. App. P.
^2(a)(7), MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND
IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
C. ' cYr.-_
DENNIS D. PARKER
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
I hereby certify that copies of the accompanying Brief for Defendant-Intervenor-
Appellants have been served upon counsel of record by depositing same with U.S.
Mail, postage prepaid, on November 15, 2000, addressed to the following:
Mark H. Cohen
Michael D. Kaufman
Troutman Sanders, LLP
600 Peachtree Street, Suite 5200
Atlanta, GA 30308
A. Lee Parks
Parks, Chesin & Miller, P.C.
75 Fourteenth Street
2600 The Grand
Atlanta, GA 30309
Alfred L. Evans
Dennis R. Dunn
Attorney General’s Office
40 Capitol Square, S.W. Suite 232
Atlanta, GA 30334
A (?„ ___________
Dennis D. Parker
NAACP Legal Defense & Educational
Fund
99 Hudson Street, 16th Floor
New York, NY 10013
(212) 965-2255
*
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