Opinion
CV 497-45
July 24, 2000
ORDER
I. INTRODUCTION
Invoking 42 U.S.C. § 1981, 1983 and 2000d ("Title VI"), the plaintiffs brought this case to challenge the "continued segregation" of Georgia's University System. Doc. # 1. They launched their assault on two fronts. One group of plaintiffs (consisting of Kirby Tracy, Ashley Davis, and Craig Green) contended that the defendants, by establishing a race-conscious "affirmative action" admissions program at the University of Georgia (UGA), discriminated against them on the basis of their race (white) when they unsuccessfully applied for admission to UGA's freshman class. See id.; doc. # 200. A second group sought to abolish many of the defendants' practices and policies in operating Georgia's historically black public institutions (HBIs). See doc. # 1; # 241 at 1-2.
Prior orders detail the procedural history of this case. See Wooden v. Board of Regents, 32 F. Supp.2d 1370, 1372-75 (S.D.Ga. 1999) (" Wooden"); doc. # 241; Tracy v. Board of Regents, 59 F. Supp.2d 1314, 1315-17 (S.D.Ga. 1999) (" Tracy"). The Court held that the HBI challengers lacked standing to pursue their claims because they suffered no "injury in fact" and asserted only a "generalized grievance." Doc. # 241 at 10-16. Davis lacked standing because UGA denied her application based on her grades and test scores, not her race. Wooden, 32 F. Supp.2d at 1375. And, even though Green went through the race-conscious portion of UGA's admissions process, he also lacked standing because, in light of his objective qualifications, he could not say that UGA prevented him from competing "on an equal footing" with non-whites. Tracy, 59 F. Supp.2d at 1317-21.
In contrast, the Court granted Tracy partial summary judgment on his damages claim; UGA denied him admission under its majority admissions standards even though he met the minimum standards required of minority applicants. Wooden, 32 F. Supp.2d at 1373-84. It also noted that Tracy's transfer admission to UGA mooted his prospective injunctive relief claim. Id. at 8.
After plaintiffs appealed, see doc. # 259, the Supreme Court issued Texas v. Lesage, ___ U.S. ___, 120 S.Ct. 467 (1999), which "clarified the standing requirements for plaintiffs challenging race-based admissions policies." Tracy v. Board of Regents, 208 F.3d 1313, 1314 (11th Cir. 2000) (" Tracy II"). Accordingly, the Eleventh Circuit vacated this Court's summary judgment and remanded the case "for further consideration in light of Lesage." Id. The Court then issued an Order providing that further consideration, and reinstituting its prior grants of summary judgment. Doc. # 266. Davis, Tracy, and Green now move the Court, over the defendants' and intervenors' opposition, see doc. ## 271-72, to reconsider. Doc. # 267.
II. BACKGROUND
From 1990 to 1995, UGA divided its incoming freshman applicants into "first notice" and "final notice" categories. Wooden, 32 F. Supp.2d at 1373. Students with a high Academic Index (AI), a statistic calculated solely from an applicant's high school GPA and SAT score, were offered admission through first notice admission. Id. at 1374. Applicants with lower AIs advanced to the final notice stage, where UGA officials filled out the remainder of the class by considering enrollment needs such as size, academic quality, and racial diversity. Id.
During the 1990-95 period, UGA employed a "dual-track" admissions policy that set different minimum standards for black and non-black applicants. So in 1995, for example, black applicants needed only a minimum 800 SAT score, 2.0 GPA, and 2.0 AI, while non-blacks had to attain a 980 SAT, 2.5 GPA, and 2.4 AI. Id.
Tracy applied to UGA in 1995 with a 3.47 GPA and 830 SAT. Although he met the minimum standards required of black applicants, UGA denied him admission because his SAT score was below the non-black minimum. Id. He then attended Georgia College, and transferred to UGA in 1997. Id.
In 1996, UGA revised its admissions process to employ a three-tiered system. Tracy, 59 F. Supp.2d at 1316. In the first level, UGA again calculated applicants' AIs from their high school GPAs and SAT scores, then admitted those with AIs above a set number. Id. Applicants with AIs below a minimum score were rejected outright. Those with AIs between these two values proceeded to the next stage of the process, the Total Student Index (TSI). Id.
The TSI phase took each applicant's AI, then added "bonus points" for various characteristics, including a challenging high school curriculum, extracurricular activities, Georgia residency, alumni relatives, and minority race. Id. Again, UGA admitted those with TSIs above a certain value automatically, while denying admission outright to those with TSIs below a minimum value. Id. at 1316-17. It then sent applicants with intermediate TSI values to the third and final stage, the "edge read" (ER). Id. at 1317.
At the ER stage, UGA admissions officials individually read the application files and evaluated the candidates for "qualities that might not have been apparent at the AI and TSI stages." Id. They assigned applicants a numerical score, admitting those above a set value and rejecting those below it. Id. Although this Court previously concluded that UGA did not consider race at the ER stage, see id. at 1318 n. 2, the plaintiffs now claim that recently discovered evidence indicates otherwise. Doc. # 270 at 15-17.
Davis applied to UGA in 1996. Because her AI was below the minimum value required for either admission or for further consideration at the TSI phase, UGA denied her admission at the first stage. Wooden, 32 F. Supp.2d at 1375. She then enrolled at the University of Tennessee, and "disclaimed any interest in transferring to UGA." Id. As noted above, this Court found that Davis lacked standing because UGA denied her application without considering her race. Id.
Green applied to UGA in 1997. Tracy, 59 F. Supp.2d at 1316. His AI did not earn him automatic admission, but did not disqualify him summarily. Id. at 1317. At the TSI phase, UGA did not give him the minority bonus points, and he again received an intermediate score. Id. However, even with the racial bonus points, he would have been in this middle ground between automatic acceptance and denial. See id. His application thus proceeded to the ER stage, where it was denied. Id. He enrolled at Dalton College, intending to transfer to UGA. Id. The Court likewise found that he lacked standing. Id. at 1317-21.
III. ANALYSIS A. Davis's Claims
Davis contends that the Court erroneously entered summary judgment against her because "[u]nder Lesage, entitlement to individual relief is not dispositive of a plaintiff's standing to seek prospective injunctive relief either individually or as a class representative." Doc. # 270 at 7. Moreover, she argues, she possesses standing under Lesage to seek a prospective injunction. Id. She also seeks to amend her Complaint to challenge UGA's consideration of gender in its admissions. Doc. #267 at 2.
To seek a prospective injunction, a plaintiff alleges a sufficient injury merely by establishing "the inability to compete on an equal footing." Lesage, 120 S.Ct. at 468 (quoting Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993)). That is, she need not "affirmatively establish that [s]he would receive the benefit in question if race were not considered." Id.
But Lesage did not alter Jacksonville's requirements on how to establish the "inability to compete equally" injury. Under Jacksonville, Davis must demonstrate standing by showing that she "is able and ready to [compete] and that a discriminatory policy prevents [her] from doing so on an equal basis." 508 U.S. at 666 (footnote omitted).
Davis simply cannot establish that she was able to compete and that a discriminatory policy prevented her from doing so on an equal basis. Since she was denied admission outright at the AI stage, without ever proceeding to the TSI stage, she cannot make this showing. Her grades and test scores, not her race and/or gender, prevented her from competing equally with other applicants.
It is not enough to go through part of the admissions process, then argue that it is the total process that is challenged; in reality, only the allegedly discriminatory portion of the process faces a challenge. Davis never faced this portion of UGA's admissions process, and thus cannot claim that it prevented her from competing equally. Therefore, she does not possess standing to pursue either prospective or retrospective relief, and the summary judgment against her was proper.
Because Davis reached only the AI stage, which considered neither race nor gender, her proposed gender discrimination claim fares no better than her race discrimination claim.
B . Tracy's Claims
Tracy, like Davis, contests the Court's summary judgment because " Lesage hold[s] that prospective injunctive relief is available if the Plaintiff merely shows `the inability to compete on an equal footing.'" Doc. # 270 at 4. Lesage reaffirms Jacksonville's holding that the inability to compete equally is a sufficient injury for prospective injunctive relief standing. But
[i]n order to have standing to seek a prospective injunction, a potential plaintiff must assert "`an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'" Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To show that his injury is sufficiently imminent, Tracy must demonstrate that "in the relatively near future" he will again be subjected to the challenged conduct. Id.; accord Los Angeles v. Lyons, 461 U.S. 95, 102-05 (1983).
Doc. # 266 at 5 n. 4 (emphasis added). Tracy therefore must not only meet Jacksonville's injury requirement, but also Adarand's particularity and imminence criteria.
Tracy argues, correctly, that his transfer to UGA while his case was pending does not affect his standing. See doc. # 270 at 5. Since "standing is to be determined as of the commencement of suit," Lujan, 504 U.S. at 570-71 n. 5, the Court erred in considering Tracy's post-Complaint-filing transfer in the context of his standing to sue.
However, Tracy's transfer would be relevant to the issue of mootness. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., ___ U.S. ___, 120 S.Ct. 693, 708-09 (2000) ("mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)") (quotes and cites omitted).
Nevertheless, Tracy lacks standing to seek a prospective injunction. He applied for admission to the Fall 1995 freshman class at UGA, and after his rejection, he enrolled at Georgia College. Doc. # 78 ¶ 1; # 72 ¶ 6. He began his study at Georgia College in Fall 1995, and continued there for two years, then successfully transferred to UGA. Doc. # 78 ¶ 24; # 72 ¶¶ 6-7. He filed this lawsuit on 3/3/97, see doc. # 1, and began classes at UGA in the Fall of that year. Doc. # 72 ¶ 8.
While Tracy's transfer to UGA occurred after he commenced this suit, he had matriculated at Georgia College roughly a year and a half before filing his Complaint. And Tracy admits that "[r]ace is not used in making decisions on transfer requests between system schools" such as Georgia College and UGA. Doc. # 78 ¶ 24. Thus, he had assured, well before filing this action, that he would not again be subjected to UGA's challenged freshman admissions policy. Even though he has suffered a sufficient injury-in-fact under Jacksonville, then, he lacks the imminence requirement necessary for standing to seek a prospective injunction. Therefore, the Court must affirm its summary judgment against his injunction claim.
C . Green's Claims
Green also challenges the Court's application of Lesage to the facts of this case. He maintains that that case grants him standing to pursue his claims. See doc. # 270 at 7. Additionally, he claims to have found evidence indicating that UGA's ER process, formerly thought to be race-neutral, actually considers applicants' race. Id. at 6-7.
As discussed in the Court's latest Order, Lesage did not alter, but (at least so far as standing to seek prospective injunctive relief is concerned) merely "reiterated the Court's earlier holding in Jacksonville." Doc. # 266 at 4. And Jacksonville required that a prospective litigant be "otherwise qualified" before he can allege a sufficient inability-to-compete-equally injury. Id.
This Court previously held that, because Green would have proceeded to the ER stage (where he was rejected) even had he received the racial bonus points, he "simply cannot show [that] he was otherwise qualified to compete for admission equally with minority applicants." Id. at 5 (citing Tracy, 59 F. Supp.2d at 1317-21). Lesage, therefore, does not change the result for Green.
This holding, of course, presupposes that the ER process is race-neutral. Were it not, then Green's rejection at that stage would support his Jacksonville standing, for he would have been otherwise qualified but unable to compete equally with non-white applicants.
Green cites to "next-wave" UGA litigation (i.e., the Johnson case) as the source of his newly discovered evidence purportedly showing that the ER stage considered race. After the Court granted summary judgment to the defendants on Green's claims, the Johnson/ Bogrow plaintiffs filed suit against UGA's admissions scheme, raising constitutional and statutory challenges to its race and gender preferences. Green says that "recent [ Johnson] testimony by UGA's Director of Admissions . . . conclusively demonstrates that race can be and is a consideration during the [ER] phase of the admissions process." Doc. # 270 at 15-16. He points to the testimony of UGA's Admissions Director:
See Johnson v. Board of Regents, 499CV169 doc. # 1 (S.D.Ga. Complaint filed 8/10/99); see also Bogrow v. Board of Regents, 499CV181 doc. # 1 (S.D.Ga. Complaint filed 8/31/99) (consolidated with Johnson, see 499CV169 doc. # 55).
A. [The document provided to ER "counselors," in training them to evaluate applicants during that phase, is] encouraging them to look broadly at the students to look beyond their academic criteria. There might be a world class debater in this group of students.
Q. All right. Would that also give them the ability to look — you were saying crafting the class — at these issues of race and gender?
A. It's a very subjective view.
Q. Right. So they could look at that based upon this document?
A. I'm unable to tell you what factors individuals take into consideration since it is subjective.
Q. But it's not impermissible for them to consider that in deciding what would be a well rounded class?
A. We do not instruct them to take race or gender into consideration nor do we tell them that they may not. . . . An example could be a student who's been actively involved with a minority organization. In that case you could not ignore race.
Q. I'm talking about the race or gender of the student themselves being edge read. Is that within their discretion, consideration of that?
A. Those single factors would not usually I believe be taken into consideration by the people that are reading. How those factors may come about through their activities and involvement might be apparent.
* * *
Q. And is the [ER's] purpose to, again, continue to craft a class, create a well rounded class?
* * *
A. Yes.
Q. . . . Would you then agree with me that it is within the discretion of the edge reader in crafting or coming up with a number to consider race and gender?
A. I believe that race and gender will be apparent to the edge reader with certain things that they are looking at. . . . Would those factors be standing alone? I believe they know that that's already been taken into consideration with the TSI.
Q. But they are allowed to consider them in the context of arriving at the edge read score?
A. That is a subjective process. . . . I do not know what a group of individuals do subjectively.
Q. Okay. My only point is they're not excluded from considering that. . . . Would you agree with that?
A. I don't know how I can exclude something that is a subjective process.
499CV169 doc. # 137 (McDuff dep.) at 54-59.
Green maintains that, because UGA has admitted that the ER's purpose is to create a well rounded class, and that ER counselors are not explicitly forbidden to consider an applicant's race, "UGA cannot carry its burden of proof and demonstrate race was not a factor in the Edge Read process that resulted in Green's denial." Doc. # 270 at 16. However, as with all elements of his case, "the burden is on the plaintiff to establish all the requirements of standing." Beatty v. U.S. Food and Drug Admin., 12 F. Supp.2d 1339, 1345 (S.D.Ga. 1997).
The Lesage-mandated Mt. Healthy burden-shift only occurs once the plaintiff has established that the defendant considered race in its decision. The plaintiff's failure to demonstrate that the defendant utilized race obviates the defendant's need to show it would have made the same decision without considering race. See Lesage, 120 S.Ct. at 468 ("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") (emphasis added).
The above testimony does not suffice to meet Green's burden. At most, it merely demonstrates that UGA's ER could have considered race. Without some evidence that the process in fact did consider applicants' race, Green has not established that the ER is race-conscious. He therefore has not shifted the burden to UGA to make a same-decision showing. Hence, the summary judgment against him must stand.
Defendants' response brief indicates that Green could not make such a showing in any event. In 1997, the year Green applied, 81% of the applicants at the ER stage were white, while 11% were black. Among those students admitted in 1997 from the ER stage, 80% were white and 12% were black. See doc. # 272 at 23.
IV. CONCLUSION
Accordingly, the motion of plaintiffs Ashley Davis, Kirby Tracy, and Craig Green for Reconsideration (doc. # 267) is DENIED . Plaintiffs' Motion for Leave to File Brief in Excess of Page Limitation (doc. # 269) is GRANTED , but their Motion to Consolidate Evidence (doc. # 268) is DENIED AS MOOT .
SO ORDERED, this ___ day of July, 2000.