Michael C. Wooden v. Bd. of Regents-Univ. System

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 00-14322 APR 19, 2001

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 97-00045-CV-BAE-4

MICHAEL WOODEN,

TERRY BRATCHER, Dr., et al.,

Plaintiffs-Appellants,

versus

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA, STEPHEN R. PORTCH,

Dr., et al.,

Defendants-Appellees,

GEORGIA STATE CONFERENCE NAACP,

SOUTHERN CHRISTIAN LEADERSHIP

CONFERENCE, et al.,

Intervenor-Defendants-

Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(April 19, 2001)

Before BLACK and MARCUS, Circuit Judges, and HANCOCK*, District Judge.

MARCUS, Circuit Judge:

*

Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama,

sitting by designation.

Plaintiffs appeal the district court’s orders dismissing for lack of standing

their race discrimination claims against officials of the University of Georgia

System. This litigation actually encompasses two distinct claims. One group of

Plaintiffs -- Tracy, Davis, and Green (collectively, “Tracy Plaintiffs”) -- is

composed of unsuccessful applicants to the University of Georgia; they allege that

the Defendants’ freshman admissions policies impermissibly favor non-whites over

whites in violation of the Equal Protection Clause and federal civil rights statutes.

A second group of Plaintiffs -- Wooden, Jarvis, and Bratcher (collectively,

“Wooden Plaintiffs”) -- is composed of individuals with ties to three historically

black institutions (“HBIs”) in Georgia’s university system; they allege that

operation of the HBIs unlawfully discriminates against non-blacks. In a series of

orders, the district court dismissed the claims of all of these Plaintiffs for lack of

standing; the court also denied the Plaintiffs’ class certification motion, based

primarily on its rulings regarding standing.

Because the district court correctly determined that Plaintiffs Davis and

Tracy lack standing, we affirm that portion of the district court’s orders. In

addition, the Wooden Plaintiffs failed to file their notice of appeal in a timely

fashion, so we lack jurisdiction to consider their challenge to the district court’s

orders dismissing their claims. We conclude, however, that the district court erred

2

by finding that Plaintiff Green lacks standing, and by rejecting on that basis

Green’s request to serve as a class representative. Accordingly, we reverse the

district court’s order entering summary judgment against Green for lack of

standing, and vacate the denial of class certification to the extent it was based on

the premise that Green lacks standing. The case is remanded to the district court

for further proceedings regarding Green’s claim consistent with this opinion.

I.

A.

We begin by laying out the undisputed facts of the case, starting with those

facts relevant to the Tracy Plaintiffs’ challenge to the freshman admission policies

at the University of Georgia (“UGA”).1

UGA is the flagship institution of Georgia’s university system. Admission

to UGA is competitive, and applications far exceed the number of available

freshman seats. To assemble a class, the faculty admission committee, in

conjunction with the admissions office, recommends a freshman admission policy

1

The district court in this case has already stated in dicta its view that the UGA

admissions policy discriminates unlawfully to the extent it gives certain applicants preferential

treatment based on race at some stages of the admissions process. See, e.g., Tracy v. Board of

Regents of the Univ. Sys. of Ga., 59 F. Supp. 2d 1314, 1321 (S.D. Ga. 1999). The district court

reached the same conclusion in related litigation not before us today. Johnson v. Board of

Regents of the Univ. Sys. of Ga., 106 F. Supp. 2d 1362 (S.D. Ga. 2000) (awarding relief to

plaintiff-applicants rejected from UGA). We offer no opinion on that issue, as the appeal now

before us concerns only standing.

3

each year. This policy is formally presented to UGA’s president for approval, and

thereafter is implemented by the admissions office.

Between 1990-1995, UGA’s freshman admissions policy applied objective

academic criteria differently depending upon whether an applicant characterized

himself as “black” or “non-black.” To be eligible for admission, an applicant had

to meet certain pre-set minimums with respect to Scholastic Aptitude Test (“SAT”)

score, grade point average (“GPA”), and academic index (“AI”).2 Under the 1990-

95 policy, the minimums for black students were set lower than the minimums for

non-black students. Specifically, to be eligible for admission into the Fall 1995

class, a black applicant would have to obtain at least an 800 SAT score, a 2.0 GPA,

and a 2.0 academic index. By contrast, a non-black applicant would have to obtain

at least a 980 SAT score, a 2.5 GPA, and a 2.4 academic index.

This was the regime when plaintiff Kirby Tracy (who is white) applied for

admission to UGA’s Fall 1995 Class. Tracy had a GPA of 3.47 and a total SAT

score of 830. Because he did not meet the minimum SAT requirement for

non-blacks, UGA denied his application. It is undisputed, however, that Tracy

would have been eligible for admission under the criteria applied to black

applicants.

2

The AI is a statistic that weighs and combines an applicant’s SAT scores and GPA.

4

After his rejection from UGA, Tracy enrolled at Georgia College. Two

years later, in 1997, he applied and won admission to UGA as a transfer student.

The transfer application was filed shortly after this lawsuit was filed.3 At the time

of summary judgment in this case, Tracy remained a student at UGA.

Meanwhile, UGA -- concerned about the constitutionality of its dual-track

admissions policy -- revised that policy in 1995 for the 1996 freshman class. With

some minor modifications, that revised policy remained in effect at the time of

summary judgment and appears to remain in effect today. The revised policy

divides the admissions process into three stages. UGA selects the majority of its

freshman class at an initial stage which applies objective academic criteria without

regard to the applicant’s race. At this initial stage (the “AI stage”), UGA admits

automatically applicants whose academic indices and SAT scores are above a

certain number. From the remaining applications, UGA selects for “further

evaluation” a group of applicants whose academic indices are above a certain

number and who meet minimum SAT score requirements. Applicants who fall

below the minimum academic index or below the minimum SAT score

3

It is unclear what criteria UGA uses to evaluate transfer applicants, although there is no

dispute that those criteria are race-neutral.

5

requirement are automatically rejected. To reiterate, race is not a consideration at

the AI stage.

For each applicant placed in the pool for further evaluation, UGA calculates

a Total Student Index (“TSI”). The TSI is based on a combination of weighted

academic and demographic factors. It is only at this stage that UGA, under its

current policy, expressly considers an applicant’s race.4 Applicants whose TSI

scores meet a pre-set threshold are admitted automatically, while applicants whose

scores fall below a pre-set minimum are rejected. Applicants whose TSI scores fall

between those numbers are then passed on to a third stage, where they are

evaluated on an individual basis by admissions officers. This is the “edge read” or

“ER” stage. At this final stage, all applicants still in the pool start with a score of

zero, and ER readers look for qualities that might not have been apparent at the AI

and TSI stages. Applicants who receive an ER rating above a certain number are

admitted, while those below that number are rejected. Race is not designated as a

factor at the ER stage, although the Plaintiffs contend that race is nevertheless

taken into account in determining an ER score.

4

UGA also considers, among other factors, Georgia residence, alumni relationships,

extracurricular activities, and after-school work hours.

6

Two Plaintiffs in this case sought admission under the post-1995 revised

policy (Tracy, as noted above, sought admission under the superseded 1990-95

policy). Plaintiff Ashley Davis, who is white, applied for admission to the 1996

Fall freshman class at UGA. She had a 980 SAT score, a 2.94 GPA, and a 2.21

academic index. Because her academic index was below 2.30 (the cut-off to

advance to the TSI stage), UGA denied her application at the initial AI stage. It

therefore did not compute a TSI for her, and did not consider race in rejecting her.

Davis eventually enrolled as a freshman at the University of Tennessee, where she

remained at the time of summary judgment. She has disclaimed any interest in

transferring to UGA, and there is no indication that she would re-apply under the

freshman admissions policy.

Plaintiff Craig Green, who is white, unsuccessfully sought admission to the

Fall 1997 UGA freshman class. For the 1997 freshman class, UGA required an AI

of 2.50 or above to be admitted at the initial AI stage, while applicants with an AI

below 2.25 were rejected at that stage. Students whose AIs were between 2.25 and

2.50 proceeded to the TSI phase of consideration. Green was among that group of

applicants, with an AI of 2.39 and a SAT equivalency score of 1170-90.

In calculating a TSI score for applicants to the 1997 freshman class, UGA

awarded 0.5 points under the category “Demographic Factors” to applicants who

7

self-classified themselves as non-caucasian.5 Applicants who did not do so, such

as Green, did not receive the 0.5 point credit.

After sorting applicants under the TSI process, UGA offered admission to all

candidates with a TSI score of 4.40 or higher. Applicants with a TSI score below

3.79 were rejected, while applicants whose TSI scores were between 3.79 and 4.39

proceeded on to the final ER stage. Because of the 0.5 point credit given non-

white applicants, however, white applicants were effectively held to a more

rigorous standard. In practice, awarding the 0.5 point credit to non-white

applicants meant that white applicants needed a TSI score of at least 4.40 to be

admitted at this stage, while non-white applicants needed only a 3.90. Similarly, to

avoid outright rejection at the TSI phase and proceed on to the ER phase, a white

applicant effectively needed a TSI score of at least 3.79 TSI points, while a

non-white applicant -- because of the 0.5 point boost -- needed only 3.29.

Green received a TSI score of 3.89, which included credits for his parents’

educational level, his Georgia residency, his relatively high GPA/SAT equivalency

5

In 1996, the year in which Davis sought admission, bonus points were awarded under a

category entitled “Ethnic Diversity.” The number of points awarded depended on the particular

“ethnic code” (such as “B” for black) specified by the applicant. It appears that black applicants

were awarded a larger bonus than Hispanic or other “minority” applicants. That distinction did

not exist in 1997, when the awarding of bonus points turned simply on whether the applicant

identified himself as “non-caucasian.” As shorthand in this opinion, we shall use “white” and

“non-white” to refer to “caucasian” and “non-caucasian” when speaking of the 1997 policy.

8

score, and his male gender. On the basis of that score he was neither admitted nor

rejected at the TSI stage, but instead went into the Edge Read pool. If Green had

designated himself as non-white, his TSI score would have been 4.39 -- 0.5 points

higher than it was, but still just barely below the 4.40 threshold for automatic

admission. Accordingly, Green would have proceeded to the ER stage regardless

of whether he received a 0.5 point credit due to his race.

At the ER stage, application files were individually read by at least two

members of UGA’s admissions office. UGA then offered admission to all

applicants with an ER score above -0.5, and denied admission to all applicants with

an ER score below -0.5. Each of the two Edge Readers who reviewed Green’s

application gave him an ER score of -2.0, the lowest possible. Because that score

was well below the -0.5 cutoff for admission, UGA denied Green’s application.

Green ultimately attended Dalton College in the Fall of 1997, but in 1998

sought to transfer into UGA. UGA denied his application because he lacked the

necessary credit hours to transfer to UGA from a junior college. As stated by the

district court, Green intends to reapply for admission to UGA as a transfer student

once he earns the requisite credit hours.

9

B.

The claims of the Wooden Plaintiffs relate to an entirely different set of

facts. These Plaintiffs object to Defendants’ alleged failure to “desegregate”

adequately three HBIs: Ft. Valley State University, Savannah State University,

and Albany State University. Plaintiff Wooden, who is black, asserts that although

he would have liked to enroll his daughter at nearby Savannah State, he refused to

allow her to attend a segregated campus. Plaintiff Jarvis, who is white, is a former

student at Ft. Valley; he alleges that the school’s continued segregation adversely

affected his educational experience and undermines the reputational value of his

degree. Plaintiff Bratcher, who is white, is on the faculty at Ft. Valley; she

contends that the school’s hostility to whites adversely affects her work and makes

the school inferior. None of these Plaintiffs is a current student at an HBI, which

all parties concede remain predominantly black today and Plaintiffs contend are de

facto bastions of segregation (for example, they observe that there are separate

student unions for white and black students).6

6

The only Wooden Plaintiffs before us today are Wooden, Jarvis, and Bratcher. In their

brief Plaintiffs discuss a fourth Wooden Plaintiff, Marie McConnell, but McConnell was

voluntarily dismissed from the case on October 14, 1998, and is not a party to the appeal.

Plaintiffs also discuss a fifth Wooden Plaintiff, Ruth Harris, but make no argument about her and

do not even mention her, let alone argue on her behalf, in their brief.

10

C.

Plaintiffs filed their complaint on March 3, 1997. The complaint originally

named eleven individuals as Plaintiffs; all but four of those individuals (and six of

the seven of the Plaintiffs participating in this appeal) are white. Named as

Defendants were the Board of Regents of the University System of Georgia and the

Chancellor of the system, Dr. Stephen Portch. Plaintiffs sought damages and

injunctive relief on race discrimination theories under the Equal Protection Clause

(via 42 U.S.C. § 1983), 42 U.S.C. § 1981, and Title VI of the Civil Rights Act of

1964, 42 U.S.C. § 2000d, et seq. The Georgia branch of the NAACP, the Southern

Christian Leadership Conference, and various African-American individuals later

moved successfully to intervene as Defendants. Green was later added as an

additional Plaintiff.

Plaintiffs eventually moved for class certification, seeking certification of an

extremely broad class of persons allegedly affected by Defendants’ discriminatory

practices. Plaintiff Tracy moved separately for partial summary judgment on his

claim. Defendants moved for summary judgment in their favor on all claims.7

7

Plaintiff Davis also moved for leave to amend her complaint to add allegations of sex

discrimination. The district court denied that motion. Although Plaintiffs state that they seek

review of that decision, they do not address the district court’s ruling in their brief, and instead

simply argue that Davis has standing. For the same reasons that Davis lacks standing to pursue

her allegation that the UGA admissions process unlawfully gives preferential treatment to non-

white applicants, she lacks standing to challenge UGA’s allegedly preferential treatment of

11

In an order dated January 6, 1996, the district court found that Tracy had

established his claim of unlawful past discrimination, and therefore granted his

motion for partial summary judgment. The court reserved ruling on the

recoverability of compensatory damages, and also reserved ruling on the

availability of prospective injunctive relief. In addition, the court granted

Defendants’ summary judgment motion with respect to Davis, finding that she

lacked standing to pursue her claim. Wooden v. Board of Regents of the Univ.

Sys. of Ga., 32 F. Supp. 2d 1370 (S.D. Ga. 1999). Subsequently, on March 12,

1999, the district court entered summary judgment against the Wooden Plaintiffs

on lack of standing grounds. On July 6, 1999, the district court rejected Green’s

cause of action, finding that he, like Davis, lacked standing to pursue his

discrimination claims. 59 F. Supp. 2d at 1318-1323. In a separate order entered on

that date, the court found that Tracy had not established the prerequisites needed to

obtain prospective injunctive relief, and also that Tracy was only entitled to

recover nominal damages.8 The court denied as well Plaintiffs’ motion for class

certification.

males at the TSI stage.

8

No party has appealed the district court’s finding of liability on Tracy’s claim or the

district court’s decision to award only nominal damages on that claim. Accordingly, we shall

not review those rulings.

12

All of those rulings were appealed to this Court. While the appeal was

pending, the Supreme Court decided a relevant case, Texas v. Lesage, 528 U.S. 18,

120 S. Ct. 467 (1999). In pertinent part, the Supreme Court explained that:

[W]here a plaintiff challenges a discrete governmental decision as

being based on an impermissible criterion and it is undisputed that the

government would have made the same decision regardless, there is

no cognizable injury warranting relief under § 1983.

Of course, a plaintiff who challenges an ongoing race-conscious

program and seeks forward-looking relief need not affirmatively

establish that he would receive the benefit in question if race were not

considered. The relevant injury in such cases is “the inability to

compete on an equal footing.” Northeastern Fla. Chapter, Associated

Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113

S. Ct. 2297 [] (1993). See also Adarand Constructors, Inc. v. Pea, 515

U.S. 200, 211, 115 S. Ct. 2097 [] (1995). But where there is no

allegation of an ongoing or imminent constitutional violation to

support a claim for forward-looking relief, the government's

conclusive demonstration that it would have made the same decision

absent the alleged discrimination precludes any finding of liability.

528 U.S. at 21, 120 S. Ct. at 468-69. Sua sponte, this Court on April 14, 2000,

issued a decision vacating the district court’s orders. As we explained:

Appellants brought related challenges to the University of

Georgia’s use of race in its admissions process and to the maintenance

of historically black colleges within the state’s university system. The

district court granted summary judgment to appellees on all but one

claim on standing and mootness grounds. After the appeal was filed

in this case, the Supreme Court in the case of Texas v. Lesage, 528

U.S. 18, 120 S. Ct. 467 [] (1999), clarified the standing requirements

for plaintiffs challenging race-based admissions policies. It is

therefore ORDERED that the judgment of the district court is

13

VACATED and the case is REMANDED to that court for further

consideration in light of Lesage.

Tracy v. Board of Regents of the Univ. Sys., 208 F.3d 1313, 1313-14 (11th Cir.

2000) (per curiam).

On remand, the district court expressly considered Lesage, but eventually

reinstated all of its prior rulings. The district court subsequently denied the Tracy

Plaintiffs’ motion for reconsideration, largely repeating the analysis set out at

length in its several prior opinions.

The relevant portions of the district court’s rulings may be summarized as

follows. With respect to Tracy’s request for prospective injunctive relief, the

district court initially concluded that this request was moot because Tracy

transferred to UGA in 1997 and therefore had no reason to pursue an order

compelling his admission to UGA. Subsequently, after this Court’s remand, the

district court explained that its earlier mootness analysis was incorrect.

Nevertheless, the court reinstated its prior decision on the ground that Tracy lacked

standing to obtain any form of prospective relief regarding UGA’s freshman

admissions policy, given that Tracy would never again be subject to that policy and

accordingly could not establish the prospect of imminent harm necessary for him to

have standing to seek a prospective injunction.

14

With respect to Davis, the district court found that she did not suffer any

injury-in-fact. It reasoned that because she was denied admission outright at the AI

stage, without ever proceeding to the TSI stage, she could not establish that race

was a factor in the denial of her application, and specifically could not establish

that UGA’s discriminatory practices made her unable to compete on an equal

footing with similarly-situated non-white applicants.

With respect to Green, the court found that he lacked standing to sue on an

“equal footing” theory because even though he went through the race-conscious

TSI phase of UGA’s admissions process, he would have been rejected regardless

of whether UGA had given him racial bonus points. In the words of the district

court:

[T]he parties focus on whether Green suffered an

“injury-in-fact.” While they agree that UGA took the ethnic/racial

status of applicants into account through its TSI computation, they

disagree on whether that amounted to a constitutionally sufficient

injury in Green’s case. Defendants insist that, because Green’s race

was not a factor in the ultimate decision to deny his application, he

lacks standing to challenge UGA’s admission policy. Even if Green

had received the .5 bonus for “non-white” ethnic status at the TSI

stage, they point out, his application still would have been relegated to

the final (ER) admissions stage.

[A]lthough UGA may have affirmatively considered his race at

some point in the admissions process, the unrebutted evidence shows

that its final decision to reject his application was not based on race.

Nor did Green reach the final stage (i.e., had his file “edge read”)

because of his race. . . .

15

Green argues that he nevertheless has standing because UGA’s

admissions process (as opposed to its denial of admission) inflicted a

constitutional injury upon him. Just having his application threaded

through a process which employed race-counting (at the TSI stage), he

contends, is enough. . . . [The] cases require Green to show that the

system prevented him from competing on an equal footing. Green

fails in this regard because he has not shown that he was otherwise

qualified and then had his “bid” for admission subjected to a “tainted”

admissions process. . . . [He] cannot say that he was prevented,

because of his race, from competing “on an equal footing” with

non-whites. Accordingly, Green has not suffered an “injury-in-fact”

sufficient to have standing to challenge UGA’s admission policy on

equal protection grounds.

59 F. Supp. 2d at 1318-21 (citations omitted).

With respect to the Wooden Plaintiffs, the court found that their alleged

grievances were too attenuated to constitute the “injury-in-fact” necessary to have

standing. Finally, on the issue of class certification, the district court ruled that

Tracy -- the only Plaintiff found to have standing in the case -- was not an adequate

class representative because his individual request for prospective injunctive relief

regarding the freshman admissions policy had become moot. The court also

concluded that the need for individualized analysis of class members’ claims made

class treatment inappropriate. The court did not separately consider the ability of

Green or any other Plaintiff to serve as a class representative, apparently because

the court had previously decided that those Plaintiffs lacked standing to pursue

claims on their own behalf.

16

II.

There can be no dispute about the proper standard of review of the district

court’s orders granting Defendants’ motions for summary judgment and denying

class certification. We review a district court’s grant of summary judgment de

novo, applying the same legal standards used by the district court. See, e.g.,

Hilburn v. Murata Elecs. N. America, Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).

Summary judgment is appropriate where “there is no genuine issue as to any

material fact and the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). We “view the evidence and all factual inferences therefrom

in the light most favorable to the party opposing the motion” and “‘all reasonable

doubts about the facts [are] resolved in favor of the non-movant.’” See Burton v.

City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999) (quoting Clemons v.

Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir. 1982) (citations omitted)).9

9

Even outside of summary judgment, questions of standing are reviewed de novo. See

Georgia State Conf. of NAACP Branches v. Cox, 183 F.3d 1259, 1262 (11th Cir. 1999).

Defendants are plainly incorrect in their suggestion that “the predominant standard of review for

this Article III ‘standing’ case is the ‘clearly erroneous’ standard of [Fed. R. Civ. P. 52(a)].”

While it certainly is true that this Court generally reviews a district court’s underlying factual

findings only for clear error, a district court’s ultimate resolution of a legal question such as

standing is always reviewed de novo. See, e.g., id.; Bischoff v. Osceola County, 222 F.3d 874,

879 (11th Cir. 2000). More to the point, a district court does not make factual findings in

deciding a summary judgment motion, so no question of clear error review even arises here. See

Rosen v. Benzer, 996 F.2d 1527, 1530 n.2 (3d Cir. 1993) (“because summary judgment may

only be granted where there is no genuine issue of material fact, any purported ‘factual findings’

of the [trial] court cannot be ‘factual findings’ as to disputed issues of fact, but rather are

conclusions as a matter of law that no genuine issue of material fact exists”).

17

We review orders denying class certification for abuse of discretion. See, e.g.,

Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000).

III.

We first address our jurisdiction over this appeal. Although Defendants

state that they “believe” jurisdiction exists, they nevertheless suggest that some or

all of the Plaintiffs may have filed untimely notices of appeal. We must consider

our jurisdiction regardless of whether any objection is raised by the parties. See,

e.g., Rembert v. Apfel, 213 F.3d 1331, 1333-34 (11th Cir. 2000) (“As a federal

court of limited jurisdiction, we must inquire into our subject matter jurisdiction

sua sponte even if the parties have not challenged it.”); University of S. Ala. v.

American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (jurisdiction “cannot

be waived or otherwise conferred upon the court by the parties”). Upon doing so

in this case, we conclude that although we have jurisdiction over the appeal of the

Tracy Plaintiffs, we lack jurisdiction with respect to the Wooden Plaintiffs.

The district court, as noted above, entered its order on remand on June 16,

2000. That order reinstated the district court’s prior, vacated decisions and again

granted summary judgment to the Defendants on the claims now at issue. On June

30, 2000, the Tracy Plaintiffs moved for reconsideration; the Wooden Plaintiffs,

notably, did not so move and did not join in the Tracy Plaintiffs’ motion. The

18

district court denied the reconsideration motion on July 24, 2000, and a notice of

appeal on behalf of both sets of Plaintiffs was filed on August 17, 2000 -- less than

30 days after the denial of reconsideration, but over two months after the June 16

order entering summary judgment.

For a notice of appeal to be timely in a civil case where the United States is

not a party, it must be filed within 30 days of the judgment or order appealed from.

Fed. R. App. P. 4(a)(1). Absent the filing of a timely notice, this Court does not

have jurisdiction over the appeal. See, e.g., Burnam v. Amoco Container Co., 738

F.2d 1230, 1231 (11th Cir. 1984). Rule 4(a)(4), however, provides that the time

for filing a notice of appeal is tolled by the filing with the district court of a timely

motion to alter or amend judgment under Fed. R. Civ. P. 59. See, e.g., Great

American Ins. Co. v. Rush, 670 F.2d 995, 996 (11th Cir. 1982). Consequently, a

notice of appeal filed within 30 days of the disposition of the Rule 59 motion is

timely. See id.

Defendants suggest, but do not argue affirmatively, that the Tracy Plaintiffs’

reconsideration motion did not extend the time for filing a notice of appeal because

it never referred specifically to Fed. R. Civ. P. 59. We have explained, however,

that “[w]hether a motion for post-judgment relief can be categorized as a motion

under Rule 59 is not determined by whether the movant so labels it. Rather, the

19

court must determine independently what type of motion was before the district

court, depending upon the type of relief requested.” Wright v. Preferred Research,

Inc., 891 F.2d 886, 888 (11th Cir. 1990). Moreover, “Rule 59 applies to motions

for reconsideration of matters encompassed in a decision on the merits of a

dispute.” Id. The Tracy Plaintiffs’ motion directly challenged the district court’s

June 16 order and fits within any fair conception of a reconsideration motion.

Accordingly, the Tracy Plaintiffs’ notice of appeal was timely because it was filed

within 30 days of the denial of their motion for reconsideration.

The Wooden Plaintiffs are in a different posture. They did not join in the

reconsideration motion, and thus were required to -- but did not -- file a notice of

appeal with respect to the dismissal of their claims within 30 days of the June 16

order. Both the docket sheet and the pleadings themselves indicate that only the

Tracy Plaintiffs moved for reconsideration. The first line of the motion reads:

COMES NOW the Plaintiffs ASHLEY DAVIS (Davis), KIRBY

TRACY (Tracy) and CRAIG GREEN (Green) [collectively the UGA

Plaintiffs] and respectfully request that the Court reconsider its June

16, 2000 Order . . .

In a footnote, the Tracy Plaintiffs explained that the Wooden Plaintiffs had no part

in the motion for reconsideration.10 The footnote reads:

10

Moreover, the memorandum in support of the motion for reconsideration focuses only

on the claims of the Tracy Plaintiffs. It discusses in detail the need for reconsideration with

respect to Tracy, Davis, and Green, but makes no mention of the other Plaintiffs. The district

20

The remaining Wooden plaintiffs who challenge defendants’

continued maintenance of racially segregated “historically black”

universities will file a separate motion and brief seeking consideration

of their standing, and take no part in this motion.

A review of the docket sheet and the record reveals that the Wooden Plaintiffs

never filed any motion or brief seeking reconsideration of the June 16 order.

Plaintiffs do not suggest, nor could they, that the Tracy Plaintiffs’ motion by

definition encompassed the Wooden Plaintiffs. Not only did the motion state

specifically that the Wooden Plaintiffs would be moving separately, the claims of

the two groups of Plaintiffs were litigated on an individual basis and are

analytically distinct.11 At least in this context, the filing of a joint notice of appeal

from a final order resolving a group of individual claims does not relieve each

plaintiff of his obligation to file a timely notice of appeal with respect to his own

particular claim; the fact that the notice may be timely for some other plaintiff is

immaterial. See United States v. One Remington 12 Gauge Shotgun, 709 F.2d

1468, 1469 (11th Cir. 1983) (dismissing appeal where party failed to file timely

notice because “[t]he filing of a timely notice of appeal is essential to give this

court’s order denying reconsideration likewise contains no discussion of the Wooden Plaintiffs’

standing.

11

As explained above, the Tracy Plaintiffs challenge the freshman admissions policies at

UGA. The Wooden Plaintiffs do not challenge those policies, but rather challenge the

Defendants’ alleged perpetuation of the “segregated” HBIs.

21

court jurisdiction”); Reynolds v. Hunt Oil Co., 643 F.2d 1042, 1042 (5th Cir. Unit

B 1981) (dismissing appeal and observing that “[c]ompliance with [the 30-day]

requirement is a prerequisite for appellate jurisdiction”). Inadvertent or not, the

Wooden Plaintiffs did not move for reconsideration, and therefore were not

entitled to an automatic extension of the otherwise applicable 30-day deadline for

filing a notice of appeal regarding the dismissal of their claims. The appeals of

Wooden, Jarvis, and Bratcher must be dismissed for lack of jurisdiction, and

accordingly we do not consider their arguments on the merits.

IV.

The appeals of the Tracy Plaintiffs arise out of the district court’s rulings

dismissing their claims for lack of standing. Article III of the United States

Constitution restricts the power of federal courts to adjudicating actual “cases” and

“controversies.” U.S. Const. art. III, § 2, cl. 1. “This case-or-controversy doctrine

fundamentally limits the power of federal courts in our system of government, and

helps to identify those disputes which are appropriately resolved through judicial

process.” Cox, 183 F.3d at 1262 (internal quotation marks omitted) (citing Allen

v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 3324 (1984), and Whitmore v.

Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 1722 (1990)).

22

Perhaps the most important of the Article III doctrines grounded in the

case-or-controversy requirement is that of standing. See Allen, 468 U.S. at 750,

104 S. Ct. at 3324. “In essence the question of standing is whether the litigant is

entitled to have the court decide the merits of the dispute or of particular issues.”

Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205 (1975). A plaintiff

seeking to invoke a federal court’s jurisdiction must demonstrate three things to

establish standing under Article III.12 First, he must show that he has suffered an

“injury-in-fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct.

2130, 2136 (1992); Cox, 183 F.3d at 1262. Specifically, the asserted injury must

arise out of the invasion of a legally protected interest that is sufficiently concrete

and particularized rather than abstract and indefinite. See Lujan, 504 U.S. at 560,

112 S. Ct. at 2136; see also FEC v. Akins, 524 U.S. 11, 22-24, 118 S. Ct. 1777,

1785-86 (1998). Second, the plaintiff must show a causal connection between the

asserted injury-in-fact and the challenged action of the defendant. Lujan, 504 U.S.

at 560, 112 S. Ct. at 2136; Allen, 468 U.S. at 751, 104 S. Ct. at 3324. That causal

connection cannot be too attenuated. See id. Third, the plaintiff must show that it

is likely rather than speculative that “the injury will be redressed by a favorable

12

In this case we discuss the elements of so-called “constitutional” standing. Even where

constitutional standing exists, prudential considerations may themselves preclude standing. See,

e.g., Planned Parenthood Ass’n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1465 n.2 (11th

Cir. 1991).

23

decision.” Lujan, 504 U.S. at 561, 112 S. Ct. at 2136 (citations and internal

quotations omitted). See also Miccosukee Tribe of Indians v. Florida State

Athletic Comm’n, 226 F.3d 1226, 1228 (11th Cir. 2000) (setting forth the three-

part test for constitutional standing).

These three elements are the “‘irreducible minimum’ required by the

Constitution” for a plaintiff to proceed in federal court. Jacksonville, 508 U.S. at

664, 113 S. Ct. at 2302 (quoting Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752,

758 (1982)). “In determining whether a plaintiff has established standing, we keep

in mind the Art[icle] III notion that federal courts may exercise power only in the

last resort, and as a necessity, and when the dispute is one traditionally thought to

be capable of resolution through the judicial process.” Cox, 183 F.3d at 1262-63

(internal quotation marks omitted) (citing Allen, 468 U.S. at 752, 104 S. Ct. at

3325).

A.

The Tracy Plaintiffs’ arguments for standing draw heavily on the Supreme

Court’s recent opinion in Lesage. To understand Lesage, however, it is essential to

examine earlier Supreme Court decisions discussing standing in connection with a

party’s challenge to a competitive state-sponsored selection process that allegedly

24

discriminates based on race. The Court in Lesage relied upon those decisions, and

we think it is those decisions -- rather than merely Lesage -- that ultimately answer

the questions now before us.

The first of those decisions is Northeastern Florida Chapter, Associated

General Contractors of America v. City of Jacksonville, 508 U.S. 656, 113 S. Ct.

2297 (1993). That case involved a challenge to a municipal ordinance which

effectively set aside a portion of all city contracts for bidding only by minority-

owned firms. The plaintiff was an association which included many non-minority

firms that bid regularly on city contracts, but were barred from bidding on the

set-aside contracts. The city argued that the plaintiff lacked standing because it

failed to show that any of its members would have bid successfully on any of the

contracts as to which they were precluded from bidding. The Supreme Court

rejected that argument, emphasizing that it was immaterial for standing purposes

whether any of the non-minority firms would have obtained the contracts were it

not for the city’s discrimination:

When the government erects a barrier that makes it more difficult for

members of one group to obtain a benefit than it is for members of

another group, a member of the former group seeking to challenge the

barrier need not allege that he would have obtained the benefit but for

the barrier in order to establish standing. The “injury in fact” in an

equal protection case of this variety is the denial of equal treatment

resulting from the imposition of the barrier, not the ultimate inability

to obtain the benefit. See, e.g., Turner v. Fouche, [396 U.S. 346, 362,

25

90 S. Ct. 532, 541 (1970)] (“We may assume that the [plaintiffs] have

no right to be appointed to the . . . board of education. But [they] do

have a federal constitutional right to be considered for public service

without the burden of invidiously discriminatory disqualifications”)

(footnote omitted) (emphasis added). And in the context of a

challenge to a set-aside program, the “injury in fact” is the inability to

compete on an equal footing in the bidding process, not the loss of a

contract. . . . To establish standing, therefore, a party challenging a

set-aside program like Jacksonville’s need only demonstrate that it is

able and ready to bid on contracts and that a discriminatory policy

prevents it from doing so on an equal basis.

508 U.S. at 666, 113 S. Ct. at 2303. Having defined the relevant “injury-in-fact” as

“the inability to compete on an equal footing,” the Court explained that it “follows

from our definition . . . that petitioner has sufficiently alleged both that the city’s

ordinance is the ‘cause’ of its injury and that a judicial decree directing the city to

discontinue its program would ‘redress’ the injury.” Id. at 666 n.5, 113 S. Ct. at

2303 n.5.

In support of its holding in Jacksonville, the Supreme Court cited its

“analogous” earlier decision in Regents of University of California v. Bakke, 438

U.S. 265, 98 S. Ct. 2733 (1978). In Bakke, an unsuccessful white applicant to a

state medical school claimed that the school’s admissions program, which reserved

16 of 100 places in the entering class for minority applicants, was inconsistent with

the Equal Protection Clause. Addressing the argument that the applicant lacked

standing to challenge the admissions program, Justice Powell (in a portion of his

26

opinion joined by a majority of the Court) concluded that the “constitutional

requirements of Art[icle] III” had been satisfied because the requisite “injury” was

the school’s “decision not to permit Bakke to compete for all 100 places in the

class, simply because of his race.” Id. at 281 n.14, 98 S. Ct. at 2743 n.14. Thus,

“even if Bakke had been unable to prove that he would have been admitted in the

absence of the special program, it would not follow that he lacked standing.” Id.

Subsequent to Jacksonville, the Court decided Adarand Constructors, Inc. v.

Pea, 515 U.S. 200, 115 S. Ct. 2097 (1995). Adarand, like Jacksonville, arose out

of a contract bidding process. The plaintiff, a non-minority subcontracting firm,

was the low bidder for a subcontracting job on a federal highway project. The job

was awarded to a minority-owned firm, however, because a federal law effectively

awarded financial incentives to general contractors hiring minority subcontractors.

The defendant argued that the plaintiff lacked standing to seek prospective

injunctive relief. The Court rejected that argument, and in so doing, also rejected

the notion that the plaintiff was required to show it was likely to be the low bidder

on future government contracts and hence likely to be awarded future contracts

absent the discriminatory incentive system:

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

27

manner that is “particularized” as to Adarand. We note that, contrary

to respondents’ suggestion, [] Adarand need not demonstrate that it

has been, or will be, the low bidder on a Government contract. The

injury in cases of this kind is that a “discriminatory classification

prevent[s] the plaintiff from competing on an equal footing.” The

aggrieved party “need not allege that he would have obtained the

benefit but for the barrier in order to establish standing.”

515 U.S. at 210, 115 S. Ct. at 2104-05 (quoting Jacksonville, 508 U.S. at 667, 113

S. Ct. at 2304).

Adarand plainly reinforced the principle adopted in Jacksonville and Bakke:

when a plaintiff competing for a government-sponsored benefit has been treated

differently because of race, he has standing to challenge that differential treatment

because his application has not been considered “on an equal footing” with

applications from members of the favored racial group. This Court, in standing-

related opinions subsequent to Jacksonville and Adarand, has likewise focused on

the injury caused by direct exposure to unequal treatment, without regard to

whether the plaintiff ultimately may obtain the sought-after benefit. In Cone Corp.

v. Hillsborough County, 5 F.3d 1397 (11th Cir. 1993) (per curiam), for example,

we explained that when an affirmative action plan subjects the plaintiff to

“competition on an uneven playing field, . . . [s]uch unequal competition . . . can

cause harm whether or not those forced to compete on less advantageous terms

gain the benefit sought.” Id. at 1398 (citing Jacksonville). Similarly, in

28

Engineering Contractors Association of South Florida, Inc. v. Metropolitan Dade

County, 122 F.3d 895 (11th Cir. 1994), we reasoned that where bidders for county

construction contracts “do not compete on an equal basis,” that alone gives them

standing to challenge the provisions causing the unequal treatment. Id. at 906

(citing Jacksonville).

We come, then, to the Supreme Court’s recent decision in Lesage. In that

case, a white plaintiff named Lesage brought an action under § 1983 for money

damages and prospective injunctive relief after unsuccessfully applying to a Ph.D.

program at the University of Texas. The university admitted that race was a factor

at some stages of the admissions process (although the record did not establish

whether Lesage’s application ever reached one of those stages). The district court

granted summary judgment to the university, on the ground that Lesage would

have been denied admission even if race had not been a factor in the admissions

process. Reversing the district court, the Fifth Circuit held that Lesage’s chances

under a color-blind admissions scheme were irrelevant because, if Lesage could

prove that his application was treated differently because of race, then he would be

entitled to prevail on the merits under the logic of the “equal footing” standing

cases.

29

The Supreme Court reversed the Fifth Circuit, holding that “[i]nsofar as the

Court of Appeals held that summary judgment was inappropriate on Lesage’s §

1983 action seeking damages for the school’s rejection of his application . . . even

if petitioners conclusively established that Lesage would have been rejected under

a race-neutral policy, its decision is inconsistent with this Court’s well-established

framework for analyzing such claims.” 528 U.S. at 20, 120 S. Ct. at 467. The crux

of the Court’s concern was the Fifth Circuit’s failure to take sufficient account of

the merits defense created by Mt. Healthy City Board of Education v. Doyle, 429

U.S. 274, 97 S. Ct. 568 (1977), and its progeny. Under Mt. Healthy, explained the

Court, “even if the government has considered an impermissible criterion in

making a decision adverse to the plaintiff, it can nonetheless defeat liability by

demonstrating that it would have made the same decision absent the forbidden

consideration. . . . Simply put, where a plaintiff challenges a discrete governmental

decision as being 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.” Lesage, 528 U.S. at 20-21, 120 S. Ct. at

30

468 (citing Mt Healthy).13 The Court found that, on remand, the university should

be permitted to seek summary judgment on this basis.

The Court went on, however, to distinguish between the requisite injury for

seeking damages and that necessary to seek prospective injunctive relief. In the

course of that discussion, the Court referred to its earlier standing-related decisions

defining the relevant injury in cases challenging an affirmative action policy:

Of course, a plaintiff who challenges an ongoing race-conscious

program and seeks forward-looking relief need not affirmatively

establish that he would receive the benefit in question if race were not

considered. The relevant injury in such cases is “the inability to

compete on an equal footing.” Northeastern Fla. Chapter, Associated

Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113

S. Ct. 2297, 124 L. Ed. 2d 586 (1993). See also Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S. Ct. 2097, 132 L.

Ed. 2d 158 (1995). But where there is no allegation of an ongoing or

imminent constitutional violation to support a claim for

forward-looking relief, the government’s conclusive demonstration

that it would have made the same decision absent the alleged

discrimination precludes any finding of liability.

13

In Mt. Healthy, the Court held that a school board which fired a teacher for engaging in

protected expression, among other reasons, could escape liability under § 1983 by showing that

it would have fired the teacher anyway without regard to the protected expression. See 429 U.S.

at 287, 97 S. Ct. at 576. Thus, “[w]here a plaintiff challenges a discrete governmental decision

as being based on an impermissible criterion and it is undisputed that the government would

have made the same decision regardless, there is no cognizable injury warranting relief under §

1983.” Lesage, 528 U.S. at 21, 120 S. Ct. at 468. In Lesage, the Court held that the Mt. Healthy

defense applies in Equal Protection race discrimination cases under § 1983 as well as First

Amendment cases. Id. (“Our previous decisions on this point have typically involved alleged

retaliation for protected First Amendment activity rather than racial discrimination, but that

distinction is immaterial. The underlying principle is the same: The government can avoid

liability by proving that it would have made the same decision without the impermissible

motive.”).

31

Lesage, 528 U.S. at 21, 120 S. Ct. at 468-69. The court went on to remand

Lesage’s claim for prospective injunctive relief, because it could not determine

whether that claim had been abandoned.

As Defendants observe, Lesage does not specifically address standing

(indeed, the opinion does not refer to standing at all). Nevertheless, we agree with

our decision vacating the district court’s original judgment, in which we described

Lesage as “clarif[ying] the standing requirements for plaintiffs challenging

race-based admissions policies.” 208 F.3d at 1313-14. Whether or not the opinion

expressly discusses standing, it plainly bears on that inquiry because it further

defines the kind of injury that would support relief in a case challenging the

process of awarding benefits under a government affirmative action plan. “Injury-

in-fact” is the touchstone of standing, see, e.g., Lujan, 504 U.S. at 560, 112 S. Ct.

at 2136, and it is to Supreme Court decisions such as Lesage that we must look in

defining the relevant injury in these types of cases.14

The difficulty, of course, is determining the scope of the Court’s statement --

first made in Jacksonville, reiterated in Adarand, and repeated most recently in

14

Lesage is also notable because it applies in a university admissions case the “equal

footing” principle developed primarily in government contract cases. In both types of cases, the

plaintiff is competing against others for a benefit conferred on some, but not all, by the state.

After Lesage, Jacksonville and Adarand are not distinguishable simply because they involve the

process of awarding government contracts.

32

Lesage -- that “[t]he relevant injury . . . is ‘the inability to compete on an equal

footing.’” Lesage, 528 U.S. at 21, 120 S. Ct. at 468-69 (quoting Jacksonville). In

the context of this case, and holding aside the additional considerations raised by a

claim for prospective injunctive relief, see infra Part IV.D, there are at least three

possible interpretations. As the Tracy Plaintiffs see it, it is enough to allege that at

some stage in the UGA freshman admissions process a white applicant will be

disadvantaged because of race. In other words, viewing the admissions process as

a whole, white applicants do not compete on an equal footing with non-white

applicants, and that fact alone creates an injury sufficient to confer standing on all

unsuccessful white applicants. It follows, Plaintiffs say, that mere participation in

the race-conscious admissions process is enough to establish injury, regardless of

whether the applicant would have been knocked out under race-neutral criteria

before or after the particular stage of the admissions process where race was

considered.

Defendants, unsurprisingly, take a different view. As they see it, for a white

applicant to claim that he has been denied an opportunity to compete on an equal

footing with non-white applicants, he necessarily must show that he is, in fact, able

to compete equally. The upshot of this position is that regardless of whether a

candidate’s application was treated less favorably because of his race, if the

33

candidate is unable to show that the fate of his application was altered due to race,

then he would not be able to show that he was in a position to compete equally and

therefore would lack standing. Consequently, not only is mere participation in a

race-conscious admissions program insufficient to confer standing, actual

dissimilar treatment of an application at some stage of the process is not enough

unless the candidate could show that he was knocked out because of race.

A third view would strike a middle ground between the conflicting positions

of the parties. According to that view, the critical inquiry for standing purposes

would be whether the plaintiff’s application has actually been treated differently at

some stage in the admissions process on the basis on race. If so, then the plaintiff

has not competed on an equal footing with other applicants outside his racial

classification, and standing should be conferred regardless of whether race is

ultimately a factor in the decision to reject the application. Conversely, if the

plaintiff’s application is never actually treated differently because of race, then the

fact that race may be a consideration in assessing other applicants at a different

stage of the process should not by itself confer standing. As discussed below, it is

this approach which we find most consonant with binding Supreme Court

precedent.

B.

34

We think Green’s standing presents the most difficult question in the appeal.

It is undisputed that UGA’s post-1995 freshman admissions policy made race a

factor in evaluating applicants. It is also established, on this record, that race was a

factor only at the TSI stage, and was not an express consideration at the initial AI

stage or the final ER stage.15 Drawing on that distinction, Defendants insist that

Green was not injured by UGA’s consideration of race as a factor under the 1997

version of the admissions policy because (1) his application would have proceeded

to the ER stage regardless of whether he received the 0.5 point bonus given to

similarly-situated non-white applicants (i.e., he would not have been admitted

automatically at the TSI stage even if he received the bonus); (2) scores from the

TSI stage did not carry over to the ER stage; and (3) race was not a factor at the ER

stage (the stage at which he was denied admission). Plaintiffs respond that Green’s

claim fits squarely under Jacksonville: at the TSI stage he was plainly not “on an

equal footing” with non-white applicants because those applicants received a bonus

that he did not. Defendants counter that even so, Green was not tangibly injured

15

Green contends that race is indeed a factor, although an unstated one, at the subjective

ER stage. The district court rejected Green’s argument in denying his motion for

reconsideration. According to Defendants, there is no evidence in the record that race was a

permissible factor, or was in practice a factor, in the ER process during the year that Green’s

application was considered. Because we find that Green has standing regardless of whether race

was considered in the examination of his application during the ER stage, we do not resolve that

debate, and leave the issue for further development (if appropriate) on remand.

35

by any “unequal” treatment because he was rejected at a stage of the process which

did not consider race.

We think Defendants take too narrow a view of the significance of UGA’s

decision to consider race at the TSI stage. As set forth above, the Supreme Court

has explained repeatedly that “[t]he ‘injury in fact’ in an equal protection case of

this variety is the denial of equal treatment resulting from the imposition of the

barrier, not the ultimate inability to obtain the benefit.” Jacksonville, 508 U.S. at

666, 113 S. Ct. at 2303. The Court’s decisions establish that when an applicant

competing for a government benefit has been exposed to unequal treatment, it is

the exposure to unequal treatment which constitutes the injury-in-fact giving rise to

standing. See Adarand, 515 U.S. at 211, 115 S. Ct. at 2104-05 (“The injury in

cases of this kind is that a ‘discriminatory classification prevent[s] the plaintiff

from competing on an equal footing.’”) (quoting Jacksonville). In this case, the

undisputed record shows that Green’s application was denied equal treatment at the

TSI stage -- he did not receive the 0.5 bonus awarded to non-white candidates. He

therefore was not allowed to compete on an equal footing with non-white

candidates at the TSI stage.

Defendants’ argument fails to take account of the fit between Green’s

allegations and the Supreme Court’s definition of injury in cases such as

36

Jacksonville. It may well be true that Green’s ultimate fate in the UGA admissions

process would not have been altered even if he had received the 0.5 point bonus or

alternatively if non-white candidates had been denied such a bonus. In either

instance, he would have fallen into the middle group of candidates who were

neither accepted nor rejected at the TSI stage, and instead were passed on to the ER

stage. But the Supreme Court’s standing jurisprudence in this area unmistakably

turns the focus away from that kind of result-oriented analysis and toward a

process-oriented analysis that asks whether the plaintiff has actually been exposed

to unequal treatment. Here, there is simply no question that Green’s application

was treated differently, and less favorably, than the applications of non-white

candidates solely because of race. That is enough to give him standing to

challenge the policy.

The fact that Green’s application was subsequently rejected under race-

neutral criteria at the ER stage does not support the proposition that Green was not

qualified to compete on equal terms with non-white applicants at the TSI stage.

Moreover, the fact that Green was eventually rejected under race-neutral criteria

does not mean that he suffered no cognizable injury from the unequal treatment.

To reiterate, the injury in these kinds of cases is not the denial of the sought-

after benefit, but rather the direct exposure to unequal treatment. See, e.g., Lesage,

37

528 U.S. at 21, 120 S. Ct. at 468-69 (“[t]he relevant injury . . . is ‘the inability to

compete on an equal footing.’”) (quoting Jacksonville); Adarand, 515 U.S. at 211,

115 S. Ct. at 2104-05 (“The aggrieved party ‘need not allege that he would have

obtained the benefit but for the barrier in order to establish standing.’”) (quoting

Jacksonville); Jacksonville, 508 U.S. at 666, 113 S. Ct. at 2303 (“The ‘injury in

fact’ in an equal protection case of this variety is the denial of equal treatment

resulting from the imposition of the barrier, not the ultimate inability to obtain the

benefit. And in the context of a challenge to a set-aside program, the ‘injury in

fact’ is the inability to compete on an equal footing in the bidding process, not the

loss of a contract.”) (citation omitted); Cone, 5 F.3d at 1398 (inability to compete

on even playing field “can cause harm whether or not those forced to compete on

less advantageous terms gain the benefit sought.”). The concern raised by

Defendants therefore goes less to standing than it does to Green’s ability to

succeed on the merits of his claim. A showing that Green was denied admission

under race-neutral criteria, and that his application would have been handled in

exactly the same way even if race were not a factor at the TSI stage, may well

defeat Green’s claim or establish a Mt. Healthy defense. But at least in this context

the Supreme Court has chosen to define the relevant injury-in-fact without regard

to the end result of the defendant’s consideration of race.

38

A finding that plaintiff has standing simply means that the plaintiff is

entitled to “walk through the courthouse door” and raise his grievance before a

federal court; it is a threshold determination that is conceptually distinct from

whether the plaintiff is entitled to prevail on the merits. Standing doctrine has been

developed primarily to ensure that the person seeking to litigate a claim is the

“right” person to advance the claim. “The requirement that a party seeking review

must allege facts showing that he is himself adversely affected [is] at least a rough

attempt to put the decision as to whether review will be sought in the hands of

those who have a direct stake in the outcome.” Sierra Club v. Morton, 405 U.S.

727, 740, 92 S. Ct. 1361, 1368-69 (1972). Especially in this area, we cannot read

the Court’s jurisprudence as conflating the standing inquiry with resolution of the

merits of the plaintiff’s attack on race-conscious governmental decision-making.

Defendants’ argument that Green suffered no “injury-in-fact” is unconvincing

because, at bottom, it conceives of the standing inquiry as duplicating an inquiry

into the merits.16

16

Although some overlap may be inevitable, standing doctrine was not intended to

provide a vehicle for resolution at the threshold of fundamentally merits issues. As the Supreme

Court has explained, standing is designed to insure that the judicial process is not transformed

into “no more than a vehicle for the vindication of the value interests of concerned bystanders.”

United States v. SCRAP, 412 U.S. 669, 687, 93 S. Ct. 2405, 2416 (1973). Green is plainly not

such a plaintiff.

39

Our determination that Green has suffered an injury-in-fact based on his

exposure to unequal treatment at the TSI stage of the admissions process does not,

of course, wholly end the standing analysis. To establish standing, a plaintiff must

also show that the defendants caused the asserted injury and that a favorable

decision would be likely to redress that injury. Defendants assert that Green

cannot make such a showing because even if Green were to prove that UGA acted

unlawfully by considering race in the admissions process, that determination would

not yield any relief for him because he was rejected under race-neutral criteria and

would not have been admitted even if race were excluded as a factor. But once

again, this argument conflates the merits of the case, and particularly the Mt.

Healthy defense, with standing. To the extent the injury here is the undisputed fact

that Green’s application was treated differently and less favorably because of his

race (not the ultimate denial of admission), that injury was unquestionably caused

by Defendants and their deliberate use of race as a factor in the admissions process.

Moreover, a court could redress that injury by, among other things, declaring that

Green’s application must be re-considered under an entirely race-neutral

admissions process. Although it is possible that the outcome of that process would

be exactly the same as it was under the race-conscious process actually applied to

40

Green’s application, such a determination cannot be made now under the rubric of

standing.

For the foregoing reasons, the district court erred by rejecting Green’s claim

on the single ground that he lacked standing. In the end, this Court simply cannot

square Defendants’ logic with the concept of injury-in-fact adopted by the

Supreme Court, which has recognized that the injury caused by a race-conscious

admissions or bidding process is the fact of unequal treatment, without regard to

whether race ultimately costs the plaintiff the desired benefit. This is not to say

that Green must, or should, prevail on his cause of action. Defendants may well be

correct that Green would not have been admitted to UGA even if race were not a

factor, and may eventually defeat Green’s claim on that basis or on other grounds.

We offer no opinion at this time on Green’s likelihood of success, or the remedies

he may or may not obtain if indeed he were to prevail. We simply hold that Green

established standing to pursue a claim on the merits, and therefore reverse the

district court’s entry of summary judgment against him on that basis.17

17

The district court did not discuss separately Green’s standing to seek prospective

injunctive relief in the form of an injunction forbidding the use of race as a factor in the UGA

freshman admissions process. It is unclear whether Green desires such relief or can establish the

additional elements necessary to have standing to seek such relief. See infra Part IV.D. We

note, however, that a request for prospective relief may proceed differently than a request for

retrospective relief (such as damages or an order awarding the sought-after benefit) based on a

completed, past act of discrimination. Among other things, as Lesage reinforces, a successful

Mt. Healthy defense will not necessarily preclude a finding of liability for the purpose of

41

C.

We next address the standing of Plaintiff Davis. Davis, as noted above, was

rejected during the initial IA phase of the admissions process, which focused solely

on race-neutral objective criteria and took place before any race- or ethnicity-based

considerations entered the picture for those proceeding to the TSI stage under the

applicable 1996 version of the policy. Davis’s academic index fell below the

minimum required to advance to the TSI stage -- let alone to be admitted

automatically -- and hence she was rejected on that basis. Simply put, at the only

stage during which Davis’s application was considered by UGA, she was plainly

on an equal footing with all other applicants, and was deemed unqualified

according to entirely race-neutral criteria.18 Hence, Davis cannot claim to have

suffered any cognizable injury on account of race unless we were to find that the

injury here is exposure to an overall admissions process that includes a race-or

ethnicity-based component to which the plaintiff herself is not actually subject.

awarding prospective relief to redress ongoing or likely future injury to the plaintiff. See

Lesage, 528 U.S. at 21, 120 S. Ct. at 468, 469; Thigpen v. Bibb County, 223 F.3d 1231, 1241-42

(11th Cir. 2000) (although “same decision” defense originating in Mt. Healthy “is permitted in a

section 1983 equal protection suit, it obviates completely a defendant’s liability only where a

plaintiff seeks relief for a prior instance of discrimination”) (citation omitted). That said, we

express no opinion at this time on Green’s entitlement, if any, to prospective relief.

18

Davis is therefore in an entirely different posture than Green, whose application was

actually given unequal treatment in the admissions process. As discussed above, that fact is

critical to the evaluation of Green’s standing.

42

We find no support for that strained argument in the Supreme Court’s

jurisprudence. Plaintiffs’ position would virtually abolish the injury-in-fact

requirement in this context, conferring a cognizable injury on every unsuccessful

applicant for a government contract or admission to a public university where the

process at some stage or for some purposes disfavors the applicant’s racial group in

favor of another, regardless of whether the plaintiff herself was actually treated

unequally. The law does not go that far. In Jacksonville, Bakke, and Adarand, the

plaintiffs were exposed to race-conscious criteria at the very first step of the

selection process, either in the form of a fixed, race-based constraint on eligibility

for the benefit (Jacksonville, Bakke) or a race-based incentive system that

adversely affected their position relative to other candidates seeking the benefit

(Adarand). At no point were the bids or applications of the plaintiffs in those cases

either considered without regard to race or unaffected by race-based limitations.

Accordingly, we cannot draw from these cases the proposition that merely being

exposed to an admissions process which considers race at some but not all stages

necessarily creates standing for all applicants who would have been ineligible for

special treatment had they proceeded to the race-conscious stage of the process.

Nor does Lesage even remotely suggest that conclusion.

43

Our decision in Cone further demonstrates the flaws in Davis’s argument.

That case involved a challenge brought by general contractors who alleged that a

county affirmative action plan governing the award and implementation of public

construction contracts impermissibly discriminated against non-minority firms.

Most of the specific provisions challenged did not cause the plaintiffs any

cognizable injury. Only one provision in the county’s plan treated minority and

non-minority general contractors differently; as to that single provision, we

remanded to the district court to consider whether the plaintiffs suffered any injury

as a result of it. 5 F.3d at 1399. Notably, however, we did not suggest that, if the

plaintiffs had standing to challenge the one facially-discriminatory provision, they

would thereby have standing to challenge the other provisions as well; on the

contrary, we dismissed the plaintiffs’ challenge to the other provisions for lack of

standing. Id. at 1398 (affirming the dismissal of “all claims dealing with

provisions of the affirmative action program which treat minority and non-minority

general contractors alike, because they do not produce competition on an uneven

playing field”). In short, the plaintiffs could not use their potential exposure to

discrimination pursuant to one provision of the county’s plan as a vehicle to assert

standing for purpose of challenging other aspects of the plan that did not cause

them cognizable injury.

44

Davis’s argument is even less compelling than the logic we rejected in Cone.

She contends that she has standing to challenge UGA’s admissions policy solely

by virtue of the fact that one aspect of the 1996 version of the policy -- the

awarding of bonus points based upon race or ethnicity at the TSI stage -- is race-

conscious. But like the plaintiffs in Cone, Davis cannot challenge provisions of the

policy which did not cause her cognizable injury. And because the one provision

that did cause her injury (the AI process) is undisputedly race-neutral, she cannot

prove standing to assert a claim of race discrimination.

We therefore agree with the district court that a white applicant knocked out

at the first stage of the UGA admissions process based on purely race-neutral

criteria -- as part of an entirely race-neutral inquiry into objective qualifications --

cannot claim to have been denied an opportunity to compete “on an equal footing”

with non-white applicants. Davis was not exposed to any unequal treatment, and

her application was never actually disadvantaged because of her race. It follows

that Davis has failed to prove an injury-in-fact, and therefore necessarily fails to

establish the other elements of constitutional standing. Accordingly, we conclude

45

that the district court properly granted summary judgment on standing grounds

with respect to Plaintiff Davis.19

D.

For different reasons, the district court also did not err in rejecting Tracy’s

claim for prospective injunctive relief. Simply because a party prevails on the

merits of a constitutional claim does not mean that the party is automatically

entitled to prospective injunctive relief. Rather, to have standing to obtain

forward-looking relief, a plaintiff must show a sufficient likelihood that he will be

affected by the allegedly unlawful conduct in the future.20 We discussed this

requirement and the seminal Supreme Court opinion of City of Los Angeles v.

19

Contrary to Plaintiffs’ argument, the fact that Green has standing to advance his claim

does not mean that Davis -- who presents a materially distinct claim -- is relieved from her

burden of proving individual standing. Compare American Iron & Steel Institute v. OSHA, 182

F.3d 1261, 1274 n.10 (11th Cir. 1999) (declining to inquire into standing of one group of

plaintiffs where a second group concededly had standing and both groups raised the identical

challenge which did not turn on any factual differences between the two groups).

20

Tracy’s uncontested standing to seek retrospective relief based on the denial of his

admission to UGA as part of the Fall 1995 class does not by itself give him standing to seek

prospective injunctive relief. See Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1340

(11th Cir. 2000) (“‘[a] party with standing to advance one claim may lack standing to advance

other claims’”); see also International Primate Protection League v. Administrators of Tulane

Educ. Fund, 500 U.S. 72, 77, 111 S. Ct. 1700, 1704 (1991) (“[S]tanding is gauged by the specific

common-law, statutory or constitutional claims that a party presents.”). Similarly, the fact that

this suit was brought as a class action does not alter Tracy’s obligation to show that he

individually satisfies the constitutional requirements of standing. See Bowen, 233 F.3d at 1339

n.6. The possibility that Green or unnamed class members may be able to seek prospective

relief, therefore, does not establish Tracy’s standing to seek that relief as well.

46

Lyons, 461 U.S. 95, 103 S. Ct. 1660 (1983), in Church v. City of Huntsville, 30

F.3d 1332 (11th Cir. 1994):

Because injunctions regulate future conduct, a party has standing to

seek injunctive relief only if the party alleges, and ultimately proves, a

real and immediate -- as opposed to a merely conjectural or

hypothetical -- threat of future injury. [Lyons, 461 U.S.] at 102, 103

S. Ct. at 1665. Logically, “a prospective remedy will provide no relief

for an injury that is, and likely will remain, entirely in the past.”

Although “past wrongs are evidence bearing on whether there is a real

and immediate threat of repeated injury,” O’Shea v. Littleton, 414

U.S. 488, 496, 94 S. Ct. 669, 676 [] (1974), “[p]ast exposure to illegal

conduct does not in itself show a present case or controversy

regarding injunctive relief . . . if unaccompanied by any continuing,

present adverse effects.” Lyons, 461 U.S. at 102, 103 S. Ct. at 1665

(alterations in original) (quoting O’Shea, 414 U.S. at 496, 94 S. Ct. at

676).

In Lyons, police officers had stopped Lyons for a traffic

violation. Id. at 97, 103 S. Ct. at 1663. Although he offered no

resistance or provocation, the officers applied a chokehold that

rendered him unconscious and seriously injured him. Id. at 99, 103 S.

Ct. at 1664. Lyons sued for damages and an injunction to bar future

police use of chokeholds absent an immediate threat of deadly force.

Id. at 98, 103 S. Ct. at 1663. The district court granted a preliminary

injunction, the court of appeals affirmed, but the Supreme Court

reversed. Id. at 99-100, 103 S. Ct. at 1664. The Supreme Court

reasoned that Lyons’ standing rested on the mere speculation that the

police might stop him again and that, if stopped, the arresting officers

might apply an unconstitutional chokehold. The Court concluded:

In order to establish an actual controversy in this case,

Lyons would have had not only to allege that he would

have another encounter with the police but also to make

the incredible assertion either (1) that all police officers

in Los Angeles always choke any citizen with whom they

47

happen to have an encounter, whether for the purpose of

arrest, issuing a citation, or for questioning, or (2) that the

City ordered or authorized police officers to act in such a

manner.

Id. at 105-06, 103 S. Ct. at 1667. According to the Court, there was no

“real and immediate threat” that either of the causes of Lyons’ past

injury -- his illegal conduct that led the police to stop his vehicle and

the ensuing police conduct -- would recur in the future. Lyons’

standing to seek damages for his past injuries, while not questioned by

the Court, simply did not establish that he “faced a realistic threat

from the future application of the City’s policy.” Id. at 106 n.7, 103 S.

Ct. at 1668 n.7.

30 F.3d at 1337 (citations omitted). Invoking that reasoning, this Court has often

emphasized that to obtain prospective injunctive relief a plaintiff must show that he

faces a substantial likelihood of injury in the future. See, e.g., Bowen, 233 F.3d at

1340 (finding that plaintiff lacked standing to seek prospective injunctive relief

where he could not “allege facts from which it appears there is a substantial

likelihood that he will suffer injury in the future”) (quoting Malowney v. Federal

Collection Deposit Group, 193 F.3d 1342, 1346-47 (11th Cir. 1999)).

Tracy is now a student at UGA, and there is no evidence that he intends to

re-apply for admission to UGA under any version of the freshman admissions

policy. There is no likelihood, therefore, that he will ever again be exposed to

UGA’s allegedly discriminatory freshman admissions process. As Lyons makes

clear, the fact that others may be exposed to that process in the future is not

48

sufficient for Tracy to obtain prospective relief that will not benefit him in

conjunction with his individual claim.

Plaintiffs make several counter-arguments, none of which is persuasive.

First, they cite case law for the proposition that a plaintiff’s entitlement to

injunctive relief is measured at the time the complaint is filed. See Robidoux v.

Celani, 987 F.2d 931, 938 (2d Cir. 1993). They contend that at the time the

complaint was filed, Tracy had not yet transferred to UGA. As Defendants

observe, however, the policy by which UGA allegedly discriminated against Tracy

was the 1990-95 policy, which was not the policy in place at the time Plaintiffs

filed suit in 1997. The post-1995 policy was not the predicate of Tracy’s

individual claim in the complaint, and was not likely to affect Tracy at the time he

filed his complaint. There is, for example, no persuasive evidence that Tracy

intended to re-apply to UGA via the freshman admissions process (on the contrary,

he sought admission to UGA through a different route -- the transfer process --

soon after the complaint was filed). Accordingly, Tracy would not have been

entitled to prospective injunctive relief regarding the post-1995 policy at the time

he filed his complaint. Moreover, any prospective relief we might award with

49

respect to the post-1995 policy would not redress the injury suffered by Tracy as a

result of the 1990-95 policy.21

Second, in a related argument, Plaintiffs cite decisions setting forth the

proposition that a defendant’s voluntary cessation of a challenged practice does not

necessarily render a case moot and thereby deprive a federal court of its power to

determine the legality of the practice. See, e.g., Jacksonville, 508 U.S. at 662, 113

S. Ct. at 2301. But while the district court occasionally spoke of this issue in terms

of mootness, the real obstacle here is standing. In other words, the problem is not

that the Defendants rescinded the unlawful 1990-95 admissions policy after the

complaint was filed (thereby creating a potential mootness issue), but rather that

the original policy had been replaced before Tracy and the other Plaintiffs even

21

In Robidoux, the Second Circuit explained that “[f]or a plaintiff to have standing to

request injunctive or declaratory relief, the injury alleged must be capable of being redressed

through injunctive relief ‘at that moment.’ The plaintiff may meet this standard by alleging that

the defendant was engaging in the unlawful practice against the plaintiff at the time of the

complaint.” 987 F.2d at 938 (citing County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct.

1661 (1991)). The Second Circuit described McLaughlin as setting forth an alternative to Lyons

for establishing standing to seek prospective relief. 987 F.2d at 938. Plaintiffs here seem to be

taking a similar view and arguing for standing under McLaughlin rather than under Lyons.

McLaughlin, however, concerned a situation where the plaintiffs were exposed to a continuing

unconstitutional act -- a protracted delay in affording them probable cause hearings -- which was

ongoing at the time of the complaint but was cured after the filing of the complaint. The

Supreme Court explained that the alleged violations of the plaintiffs’ constitutional rights had

not been completed by the time of the complaint, and therefore the requirements set forth in

Lyons did not apply. 500 U.S. at 51, 111 S. Ct. at 1667. In this case, by contrast, the alleged

violation of Tracy’s rights -- the denial of his application for admission as a member of UGA’s

Fall 1995 freshman class -- had been completed well before Plaintiffs filed their complaint.

50

filed suit. Tracy never had standing to challenge the revised policy, and

accordingly we never reach the question of whether Tracy’s challenge to that

policy eventually became moot.

Third, Plaintiffs maintain that the post-1995 policy is essentially the same as

the 1990-95 policy that affected Tracy, and therefore Tracy should be entitled to

seek prospective relief with respect to the revised policy. This reasoning is no

answer to Tracy’s inability to satisfy the “likely future injury” requirement of

Lyons, however. In any event, the post-1995 policy is materially different than its

predecessor. Under the 1996 and 1997 versions of revised policy, race is

considered at only one stage of the admissions process, and applicants are not

“dual-tracked” (in the sense of being held to different objective standards) based

on their race. Under the prior policy, by contrast, black and non-black applicants

were treated differently and held to different standards from the very outset of the

evaluation process. “[A] plaintiff who has been subject to injurious conduct of one

kind [does not] possess by virtue of that injury the necessary stake in litigating

conduct of another kind, although similar, to which he has not been subject.”

Blum v. Yaretsky, 457 U.S. 991, 999, 107 S. Ct. 2777, 2783 (1982) (citing Moose

Lodge No. 107 v. Irvis, 407 U.S. 163, 166-167, 92 S. Ct. 1965, 1968-69 (1972)).

51

Fourth, Plaintiffs maintain that denying standing to Tracy is unfair because

otherwise UGA’s freshman admissions policy will be effectively unreviewable.

They appear to believe that prospective relief could only be sought by someone

who, having been rejected, is then prepared to wait out the duration of the litigation

without seeking to gain admission to UGA as a transfer student. Moreover,

according to Plaintiffs, even if an individual plaintiff seems likely to prove a

violation, UGA can -- as it has in the past -- avoid any risk of far-reaching court-

ordered prospective relief with regard to its freshman admissions policy simply by

offering admission to that individual. At least on the record before us, we do not

share Plaintiffs’ concern. Suffice it to say that there has been no showing that the

pool of potential plaintiffs able to challenge UGA’s freshman admissions policy on

these grounds is drying up. We also are confident that, regardless of any

prospective relief a court might order, UGA would not ignore the import of a

controlling federal court decision holding that its freshman admissions policy is

unconstitutional. In any event, as discussed above, Tracy is not in a position to

advance these concerns as a reason to grant him standing to seek prospective

injunctive relief because he was not affected by the version of UGA’s freshman

admissions policy now in place.

52

Finally, Plaintiffs maintain that Lesage somehow entitles Tracy to

prospective injunctive relief. But there is no indication in Lesage that the Court

intended to alter the well-settled prerequisites to granting such relief. Plaintiffs’

argument appears to be based on the Court’s statement that “[o]f course, a plaintiff

who challenges an ongoing race-conscious program and seeks forward-looking

relief need not affirmatively establish that he would receive the benefit in question

if race were not considered.” 528 U.S. at 21, 120 S. Ct. at 468. But Lesage plainly

does not hold that a plaintiff may obtain prospective injunctive relief merely by

alleging “an ongoing or imminent constitutional violation,” id., arising out of a

practice that has not injured him to date and is highly unlikely to injure him in the

future.

Nor can Lesage be read to create an exception to Lyons where the

discriminatory admissions policy is still in place. If the Supreme Court intended so

significant and potentially far-reaching a change in the law of standing, surely it

would have said so directly, or at least cited Lyons. To reiterate, standing, qua

standing, was not even an issue in Lesage, and no question of prospective relief

arose there because it appeared that the plaintiff had abandoned his claim that the

defendant university was still administering a discriminatory admissions policy.

528 U.S. at 22, 120 S. Ct. at 469. Tracy, therefore, lacks standing to seek

53

prospective injunctive relief with respect to UGA’s revised freshman admissions

policy, and the district court correctly declined to grant that relief.

E.

Before closing, we address briefly the district court’s denial of class

certification. The crux of the district court’s ruling was its finding that Tracy -- the

only Plaintiff with any standing at all in the eyes of the district court -- could not

represent a class of persons challenging UGA’s freshman admissions policy.22 The

court explained that Tracy’s own claim had become moot by virtue of his

admission to UGA as a transfer student, and that additionally there were too many

questions requiring individualized analysis for class treatment to be acceptable.

The court did not expressly consider whether Green could represent a viable class.

On appeal, Plaintiffs argue that both Tracy and Green should be permitted to serve

22

Plaintiffs’ class allegations were sweeping. Plaintiffs purported to represent:

[A]ll present and future students of any four-year or university-level public

institution of higher education in Georgia; parents of minor students of such

institutions; applicants for admission at such institutions; parents of minor

applicants for admission at such institutions; faculty and administrative

employees at such institutions; applicants for faculty and administrative

employment at such institutions; and applicants for promotion at such institutions;

who have been denied admission, employment, promotion, or monies based on

their race, within the two year period preceding the filing of this complaint.

Plaintiffs’ Motion for Class Certification, Dec. 1, 1997, at 1. The district court appears to have

considered Plaintiffs’ motion only from the standpoint of whether Tracy could represent a class

of persons challenging UGA’s freshman admissions policy.

54

as class representatives, and that the class issue should be revisited with that point

established.

The general principles regarding class certification are well-settled.23

Among other things, as a prerequisite to certification, it must be established that

the proposed class representatives have standing to pursue the claims as to which

classwide relief is sought. The standing requirement is a function not only of

Article III, but also the requirement in the class action rule -- Fed. R. Civ. P. 23 --

that the representative’s individual claim be typical of those belonging to the class

members he seeks to represent. See Fed. R. Civ. P. 23(a)(3) (“the claims or

defenses of the representative parties [must be] typical of the claims or defenses of

the class”). As we have explained:

It should be obvious that there cannot be adequate typicality

between a class and a named representative unless the named

representative has individual standing to raise the legal claims of the

class. . . . [T]ypicality measures whether a sufficient nexus exists

between the claims of the named representatives and those of the class

at large. Without individual standing to raise a legal claim, a named

representative does not have the requisite typicality to raise the same

claim on behalf of a class. As the Supreme Court has explained,

“[w]e have repeatedly held that a class representative must be part of

the class and possess the same interest and suffer the same injury as

the class members.” [General Telephone Co. of Southwest v. Falcon,

457 U.S. 147, 156, 102 S. Ct. 2364, 2370 (1982)]. This rule makes

23

Plaintiffs sought class treatment under Fed. R. Civ. P. 23(b)(2) (which governs claims

for injunctive relief) and 23(b)(3) (which governs damages claims).

55

especially good sense when we consider that one of the core purposes

of conducting typicality review is to ensure that “the named plaintiffs

have incentives that align with those of absent class members so as to

assure that the absentees’ interests will be fairly represented.”

Thus, it is well-settled that prior to the certification of a class,

and technically speaking before undertaking any formal typicality or

commonality review, the district court must determine that at least one

named class representative has Article III standing to raise each class

subclaim. “[A]ny analysis of class certification must begin with the

issue of standing.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th

Cir.1987); see also Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit

A, July 1981) (stating that the “constitutional threshold [of standing]

must be met before any consideration of the typicality of claims or

commonality of issues required for procedural reasons by Fed. R. Civ.

P. 23”). “Only after the court determines the issues for which the

named plaintiffs have standing should it address the question whether

the named plaintiffs have representative capacity, as defined by Rule

23(a), to assert the rights of others.” It is not enough that a named

plaintiff can establish a case or controversy between himself and the

defendant by virtue of having standing as to one of many claims he

wishes to assert. Rather, “each claim must be analyzed separately,

and a claim cannot be asserted on behalf of a class unless at least one

named plaintiff has suffered the injury that gives rise to that claim.”

Prado-Steiman, 221 F.3d at 1280 (citations omitted). Thus, just as a plaintiff

cannot pursue an individual claim unless he proves standing, a plaintiff cannot

represent a class unless he has standing to raise the claims of the class he seeks to

represent.

For the reasons discussed above, the district court did not err by concluding

that Tracy lacks standing to pursue forward-looking relief with respect to UGA’s

56

revised freshman admissions policy. He therefore cannot represent a class seeking

that relief.

On the other hand, having now reversed the district court’s ruling that Green

lacks standing, we must also vacate the denial of class certification to the extent it

turned on the notion that Green could not serve as a class representative because he

lacked standing to pursue a claim individually. A district court abuses its

discretion when it denies class certification based on an incorrect legal premise.

See, e.g., Prado-Steiman, 221 F.3d at 1275 n.9 (citing SunAmerica Corp. v. Sun

Life Assur. Co., 77 F.3d 1325, 1333 (11th Cir. 1996) for the proposition that a

“court necessarily abuses its discretion if it ‘has applied an incorrect legal

standard’”). Whether Green could serve as representative for a class that would

meet the prerequisites of Rule 23(a), and one of the subdivisions of Rule 23(b), is a

question for the district court to address in the first instance, not this Court,

especially as the district court did not even consider Green as a possible class

representative in its ruling denying class certification.24

24

Defendants do not argue that we could affirm the denial of class certification even if we

were to find that one or more of the Plaintiffs has standing. Although the district court based its

denial of class certification partially on concerns beyond standing, we shall not reach out to

address those concerns now. The district court, of course, may well conclude that some or all of

its earlier concerns still exist even with Green as the proposed class representative.

57

We note, however, that the district court is not required to resolve Green’s

class certification request before resolving a challenge to Green’s individual claim.

If the district court were to resolve a summary judgment motion in Defendants’

favor and in so doing dismiss Green’s individual claim before ruling on class

certification, then Green would not be an appropriate class representative. Again,

however, we leave those matters to the district court. We simply hold that the

district court’s denial of class certification must be vacated to the extent it was

premised on the incorrect assumption that Green lacked standing to pursue a claim

individually.

V.

In summary, we dismiss the appeals of Wooden, Jarvis and Bratcher, and

affirm the district court’s dismissal for lack of standing of the claims brought by

Davis and Tracy. We reverse the district court’s order entering summary judgment

on Green’s claim for lack of standing, and vacate the denial of class certification to

the extent it was based on the mistaken premise that Green wholly lacked standing.

The case is remanded to the district court for further proceedings regarding Green’s

claim consistent with this opinion.

APPEAL DISMISSED IN PART, AFFIRMED IN PART, REVERSED

AND VACATED IN PART, AND REMANDED.

58