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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATURIA E. SMITH; ANGELA ROCK;
MICHAEL PYLE; for themselves and
all others similarly situated,
Plaintiffs-Appellants,
v.
UNIVERSITY OF WASHINGTON, Law
School; WALLACE D. LOH; SANDRA
No. 99-35209
MADRID; RICHARD KUMMERT;
D.C. No.
MICHAEL TOWNSEND; ROLAND
CV-97-00335-TSZ
HJORTH,
Defendants-Appellees,
and
ROBERT ARONSON; JOHN JUNKER;
JACQUELINE MCMURTRIE; ERIC
SCHNAPPER; JANET STEARNS,
Defendants.
KATURIA E. SMITH; ANGELA ROCK;
MICHAEL PYLE,
Plaintiffs-Appellants,
v. No. 99-35347
THE UNIVERSITY OF WASHINGTON
LAW SCHOOL,
Defendant-Appellee.
15433
KATURIA E. SMITH; ANGELA ROCK;
MICHAEL PYLE,
Plaintiffs-Appellants,
v.
No. 99-35348
THE UNIVERSITY OF WASHINGTON
OPINION
LAW SCHOOL; WALLACE D. LOH;
ROLAND HJORTH; SANDRA MADRID;
RICHARD KUMMERT,
Defendants-Appellees.
Appeals from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
November 14, 2000--Seattle, Washington
Filed December 4, 2000
Before: Thomas M. Reavley,1 Ferdinand F. Fernandez, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Fernandez
_________________________________________________________________
1 The Honorable Thomas M. Reavley, Senior Circuit Judge for the Fifth
Circuit, sitting by designation.
COUNSEL
Michael E. Rosman, Center for Individual Rights, Washing-
ton, D.C., for the plaintiffs-appellants.
David J. Burman, Perkins Coie, LLP, Seattle, Washington, for
the defendants-appellees.
Martin Michaelson, Hogan & Hartson, L.L.P., Washington,
D.C., for American Council on Education, et al.
Michael C. Small, ACLU Foundation of Southern California,
Los Angeles, California, for Tyson Marsh, et al.
Walter E. Dellinger, O'Melveny & Myers, LLP, Washington,
D.C., for amicus curiae the Law School Admission Council.
Timothy J. Moran, Department of Justice, Washington, D.C.,
for amicus curiae the United States of America.
_________________________________________________________________
15438
OPINION
FERNANDEZ, Circuit Judge:
Katuria Smith, Angela Rock, and Michael Pyle (collec-
tively Smith) brought this action on behalf of themselves and
a class of Caucasians and others who were denied admission
to the University of Washington Law School. The action was
brought against the law school and members of its administra-
tion and faculty2 (collectively the Law School), and in it
Smith claimed that the denials of admission had been due to
racially discriminatory admissions policies, which violated 42
U.S.C. SS 1981, 1983, and 2000d. The district court decerti-
fied a class which had previously been certified under Federal
Rule of Civil Procedure 23(b)(2), and did not certify a class
under Federal Rule of Civil Procedure 23(b)(3). 3 The district
court also denied Smith a partial summary judgment on the
claim that, in general, race cannot be used as a factor in
achieving educational diversity, although it may be used for
certain limited remedial purposes. Smith appealed, and we
affirm.
BACKGROUND
On July 1, 1997, Smith filed suit against the Law School
alleging illegal discrimination against Caucasians and others
on the basis of their race, which resulted in their being denied
admission to the law school. From at least 1994 to December
of 1998, the Law School did use race as a criterion in its
admissions process so that it could assure the enrollment of a
diverse student body. There is no dispute about that. Katuria
_________________________________________________________________
2 The individuals are Wallace D. Loh, Dean of the Law School (1990-
1995), Roland J. Hjorth, Dean of the Law School (1995- ), Sandra Madrid,
Assistant Dean of the Law School, and Richard Kummert, Faculty Mem-
ber and Chair of the Admissions Committee of the Law School.
3 Hereafter we will simply refer to Federal Rule of Civil Procedure 23
as Rule 23.
15439
Smith was denied admission in 1994, but she attended another
law school and obtained her law degree there. Angela Rock
was denied admission in 1995. She, too, attended another law
school and obtained her law degree. Michael Pyle was denied
admission in 1996, but when he reapplied in 1999 he was
admitted. By that time, the overt racial policy had been termi-
nated.
On April 22, 1998, the district court certified a Rule
23(b)(2) class for injunctive and declaratory relief only.4 The
court did not certify a class with respect to damages at that time.5
The case proceeded, but so did time and events in the world
outside of the courtroom. On November 3, 1998, the people
of the State of Washington passed Initiative Measure 200,
which enacted the following provision among others:"[t]he
state shall not discriminate against, or grant preferential treat-
ment to, any individual or group on the basis of race, sex,
color, ethnicity, or national origin in the operation of public
employment, public education, or public contracting."6
The Law School then moved to dismiss the individual and
class actions, on the basis that the claims were moot as the
result of the passage of I-200 because it prohibits the Law
School from discriminating in the manner that Smith com-
plained of. Smith opposed the motion to dismiss and argued
that the claims were not moot because of the uncertainty of
how the Law School would actually interpret and apply I-200,
but the Law School pointed out that, pursuant to a directive
from the president of the University of Washington, it had
_________________________________________________________________
4 The certified class consisted of all Caucasian applicants who were
denied admission to the law school commencing in 1994.
5 The district court entered an order on February 22, 1999, clarifying its
April 22, 1998, order "to hold that for the reasons stated in that Order cer-
tification of the plaintiffs' claims for damages would not be appropriate
under Rule 23(b)(3)."
6 The measure is now codified at Wash. Rev. Code S 49.60.400(1). It
will hereafter be referred to as I-200.
15440
eliminated the use of race as a criterion in its admission pro-
cess. The new admission policy did retain a diversity clause,
which stated that "[i]mportant academic objectives are fur-
thered by . . . students . . . from diverse background[s]" and
then went on to set out a nonexhaustive list of factors as indic-
ative of diversity including "persevering or personal adversity
or other social hardships; having lived in a foreign country or
spoken a language other than English at home; career goals
. . . ; employment history; educational background .. . ; evi-
dence of and potential for leadership . . . ; special talents . . . ;
geographic diversity or unique life experiences. " Race itself,
along with color and national origin, were excluded from the
list. On February 10, 1999, the district court issued an order
granting the motion to dismiss the individual and class claims
for injunctive and declaratory relief as moot due to the pas-
sage of I-200, and decertifying the Rule 23(b)(2) class.
On February 12, 1999, the district court issued another
order in which it denied Smith's motion for partial summary
judgment. However, on February 22, 1999, it also made the
necessary findings under 28 U.S.C. S 1292(b) and went on to
designate "two controlling question[s] of law as to which
there is substantial ground for difference of opinion: (1)
whether educational diversity is a compelling governmental
interest that meets the requirement of `strict scrutiny' for race-
conscious measures under the Fourteenth Amendment to the
United States Constitution; and (2) whether race may be con-
sidered only for remedial purposes." Smith then sought to
appeal both the order of February 10, 1999, and the order of
February 12, 1999. We granted the applications.
JURISDICTION AND STANDARDS OF REVIEW
Pursuant to Rule 23(f) and our order which granted permis-
sion to appeal, we have jurisdiction over Smith's appeal from
the order decertifying the Rule 23(b)(2) class. Pursuant to 28
U.S.C. S 1292(b) and our order which granted permission to
15441
appeal, we have jurisdiction over Smith's appeal from the
order denying partial summary judgment.
"We review a district court's determination of mootness de
novo." Knight v. Kenai Peninsula Borough Sch. Dist., 131
F.3d 807, 811 (9th Cir. 1997). However, we review a district
court's determination regarding class certification, including
denial of certification, for an abuse of discretion. See id. at
816; Barber v. Hawaii, 42 F.3d 1185, 1197 (9th Cir. 1994);
Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir. 1978).
In order for a party to be entitled to summary judgment, he
must show not only that there are no questions of material
fact, but also that he is entitled to judgment as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.
2548, 2552, 91 L. Ed. 2d 265 (1986); Western Chance No. 2,
Inc. v. KFC Corp., 957 F.2d 1538, 1540 (9th Cir. 1992).
Those are matters that we review de novo. See Western
Chance, 957 F.2d at 1540.
DISCUSSION
Smith asks us to reverse the district court on three bases.
First, the district court's determination that the Rule 23(b)(2)
class for prospective relief should be decertified is attacked.
Similarly, Smith attacks the district court's failure to certify
a Rule 23(b)(3) damages class action. Finally, Smith asserts
that the district court improperly failed to grant a partial sum-
mary judgment because it should have determined that the
Law School was prohibited from using a race-conscious
admissions policy under the circumstances. We will discuss
the first and the last of these issues on the merits, but reject
the second because it is not properly before us.
A. Class Certification; Mootness
[1] Smith first attacks the district court's determination that
once I-200 was passed and its force was recognized by the
Law School, there was no reason to rule on the claims for
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declaratory and injunctive relief. We agree with the district
court. That is, regardless of what the Law School might have
thought that the United States Constitution allowed, after ini-
tiative measure I-200 was passed state law directed that "in
the operation of . . . public education" the state was prohibited
from discriminating or offering preferential treatment to "any
individual or group on the basis of race, sex, color, ethnicity,
or national origin." That, as the district court indicated, made
it unnecessary to enjoin the Law School from operating a
preferential program, and made it equally unnecessary to
declare that it could not do so. Moreover, there was no need
to continue with a class action for that purpose. In a word, that
part of the controversy had become moot.
[2] Mootness is, of course, simply one facet of justicia-
bility. See Flast v. Cohen, 392 U.S. 83, 95, 88 S. Ct. 1942,
1950, 20 L. Ed. 2d 947 (1968). Mootness is like standing, in
that if it turns out that resolution of the issue presented cannot
really affect the plaintiff's rights, there is, generally speaking,
no case or controversy for the courts to adjudicate; no real
relief can be awarded. As has sometimes been said:"Moot-
ness is `the doctrine of standing set in a time frame: The req-
uisite personal interest that must exist at the commencement
of the litigation (standing) must continue throughout its exis-
tence (mootness).' " Native Vill. of Noatak v. Blatchford, 38
F.3d 1505, 1509 (9th Cir. 1994) (citation omitted). In this
case, the district court did find standing in the first place, but,
again, it properly determined that it could give no relief of a
prospective nature once the statute and its aftermath had
accomplished all that a judgment could accomplish. As some-
times happens, time and events, including the movement of
societal opinion, outstripped the court processes.
That is the short answer, but that alone will not do because
this is an area rife with exceptions, qualifications, even quib-
bles. So we must go on. It is true, as Smith points out, that the
Supreme Court has opined that when a party asserts that a
case has become moot, "[t]he burden of demonstrating moot-
15443
ness `is a heavy one.' " County of Los Angeles v. Davis, 440
U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979).
That does not mean that the burden cannot be borne, and it
was in the just quoted case. See id.
[3] It is fair to say, nonetheless, that courts are particularly
cautious when a case has become moot because the defendant
has voluntarily ceased to pursue the challenged course of
action. Were it otherwise, the defendant's "[m]ere voluntary
cessation" would compel the courts to "leave`[t]he defendant
. . . free to return to his old ways.' " United States v. Concen-
trated Phosphate Exp. Ass'n, 393 U.S. 199, 203, 89 S. Ct.
361, 364, 21 L. Ed. 2d 344 (1968) (citation omitted). Of
course, that would be intolerable. But even when a cessation
is voluntary, mootness can follow. Even then, the record may
show that "(1) it can be said with assurance that`there is no
reasonable expectation . . .' that the alleged violation will
recur, and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation."
Davis, 440 U.S. at 631, 99 S. Ct. at 1383 (citations omitted);
see also Norman-Bloodsaw v. Lawrence Berkeley Lab. , 135
F.3d 1260, 1274 (9th Cir. 1998).
We, too, have recognized that the voluntariness of the ces-
sation is a factor, rather than a clincher. As we explained in
Armster v. United States Dist. Ct., 806 F.2d 1347, 1358 n.16
(9th Cir. 1987), "it appears that the voluntariness of the cessa-
tion is relevant to the issue of the likelihood of recurrence."
And in a case where Congress had changed the statutory
scheme, we reflected on the fact that "[o]rdinarily, voluntary
cessation of challenged activity will not render a claim moot."
Martinez v. Wilson, 32 F.3d 1415, 1420 (9th Cir. 1994). Yet,
we said, there was " `no reasonable expectation' that the chal-
lenged practices -- if invalid -- will be reinstated." Id. (cita-
tion omitted). Thus, we found that the plaintiff's injunction
request was moot. Id. Finally, in White v. Lee, 227 F.3d 1214,
1243 (9th Cir. 2000), we upheld the district court's denial of
declaratory and injunctive relief because it was clear that the
15444
agency's voluntary change in position was "a permanent
change" in the way it did business and was not "a temporary
policy that the agency will refute once this litigation has con-
cluded." Thus, we said, the claim for prospective relief was
moot. Id. at 1244.
[4] We are satisfied that when these approaches are applied
to this case, even if the Law School's change of policy has
some tinge of voluntary cessation, as Smith contends, the
matter is still moot. The only truly voluntary aspect is that the
Law School did stop using race, ethnicity, and national origin
as factors once I-200 was passed and the directive from the
president of the University was issued. The Law School did
not wait for litigation or internal University discipline before
doing that. To the extent that can be called voluntary, it is still
highly unlikely that the Law School's old practices will be
recrudescent under the current state of the law in Washington.
[5] Moreover, considering the real reason for the change, it
is rather apparent that it was made under the lash of I-200 and
not because of the prodding effect of this litigation. That tends
to indicate that the change was not really voluntary at all. See
Sze v. INS, 153 F.3d 1005, 1008 (9th Cir. 1998); Pub. Utils.
Comm'n v. Fed. Energy Regulatory Comm'n, 100 F.3d 1451,
1460 (9th Cir. 1996); Noatak, 38 F.3d at 1511; see also Texas
v. Hopwood, 518 U.S. 1033, 1034, 116 S. Ct. 2581, 2582, 135
L. Ed. 2d 1095 (1996) (Ginsburg, J., joined by Souter, J.)
(certiorari properly denied because old race-based program
was discontinued and would not be reinstated). In fact, it is
generally fair to say that when a change of position is wrought
by a statutory provision, the change is neither voluntary nor
likely to be resiled from at any time in the foreseeable future.
As we declared in Noatak, 38 F.3d at 1510,"[a] statutory
change . . . is usually enough to render a case moot, even if
the legislature possesses the power to reenact the statute after
the lawsuit is dismissed. As a general rule, if a challenged law
is repealed or expires, the case becomes moot." Smith argues
15445
that Noatak can be distinguished because it involved the
repeal of a statute that was being challenged. Smith is correct,
but that is a distinction without a difference. As other courts
have said, the real point is that a new statutory enactment has
removed the basis or need for relief. See Cook Inlet Treaty
Tribes v. Shalala, 166 F.3d 986, 990 (9th Cir. 2000); Defend-
ers of Wildlife, Inc. v. Endangered Species Scientific Auth.,
725 F.2d 726, 732 (D.C. Cir. 1984); New Mexico ex rel. New
Mexico State Highway Dep't. v. Goldschmidt, 629 F.2d 665,
667-68 (10th Cir. 1980). That is what has occurred here.
[6] There can be no real expectation that the alleged wrongs
will recur now that the people of the state have prohibited
them. Nor can we address Smith's fear of "the possibility that
the state's allegedly discriminatory policy will manifest itself
under the new statute. Federal courts are not authorized to
address such theoretical possibilities." Noatak, 38 F.3d at
1510. And, surely, this is not the kind of wrong that is so lim-
ited in duration that it would always escape review. Id. If the
Law School should become temerarious enough to decide to
ignore the law of the State of Washington in the future, Smith,
or others, can commence a new battle at that time.
But, says Smith, the Law School insisted, and still insists,
that its race-conscious selection program was perfectly legal
before the people of the State of Washington declared other-
wise. Assuming that is so, it does not suggest that the Law
School is ready to violate state law. It has not done so as far
as this record shows, and we will not assume that it will. Sim-
ilarly, we will not assume that it will act in bad faith. See
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 318-19,
98 S. Ct. 2733, 2763, 57 L. Ed. 2d 750 (1978); cf. United
States v. Laerdal Mfg. Corp., 73 F.3d 852, 856-57 (9th Cir.
1995) (where defendant had violated regulations and intro-
duced reforms under protest, its "past illegal conduct [gave]
rise to an inference that future violations may occur"); Gluth
v. Kangas, 951 F.2d 1504, 1507 (9th Cir. 1991) (past arbitrary
actions and vague new policies suggest reoccurrence). Rather,
15446
the fact, if it is a fact, that the Law School bridles at the har-
ness placed upon it by the people of the state may go to show
that its actions are not voluntary, but it does not go to show
that the Law School will break that harness.
[7] In short, the request for prospective relief is moot. In so
stating, we have not overlooked Smith's assertion that declar-
atory relief is sometimes proper, even when injunctive relief
is not. We recognize that in principle. See Steffel v. Thomp-
son, 415 U.S. 452, 468-69, 94 S. Ct. 1209, 1220-21, 39 L. Ed.
2d 505 (1974); Zwicker v. Koota, 389 U.S. 241, 254, 88 S. Ct.
391, 399, 19 L. Ed. 2d 444 (1967); Olagues v. Russoniello,
770 F.2d 791, 803 (9th Cir. 1985). That, however, does not
serve to resurrect the claim in question here. Declaratory
relief claims are not immune from mootness considerations.
See Kasza v. Browner, 133 F.3d 1159, 1172 (9th Cir. 1998);
Enrico's Inc. v. Rice, 730 F.2d 1250, 1254-55 (9th Cir. 1984).
And here there is no more reason to maintain a prospective
declaratory relief class action to pass on the now abandoned
policy than there is to issue an injunction against that policy.
The one claim is as moot as the other.
Thus, the district court properly decertified the Rule
23(b)(2) class action, which had been certified in the first
place for declaratory and injunctive relief only. That, then,
leads to Smith's claim that there should have been a damages
class action also. See Rule 23(b)(3).
B. Class Certification; Damages
The district court did not certify a damages class action
under Rule 23(b)(3) at the time that it first certified the
injunctive and declaratory relief class action on April 22,
1998. At that time, Smith did not have a right to seek an
immediate appeal in this court because the special appeal pro-
cedure was not yet effective. See Rule 23(f) (effective Decem-
ber 1, 1998). No other certification of issues for appeal was
then requested or obtained. In that respect, it should be noted
15447
that Smith had not actually asked for both a Rule 23(b)(2) and
a Rule 23(b)(3) class certification, but had, instead, listed the
latter as an alternative to the former. In this circuit, at least,
the provisions are not mutually exclusive. See Officers for
Justice v. Civil Serv. Comm'n, 688 F.2d 615, 622 (9th Cir.
1982); see also Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894,
898 (7th Cir. 1999). Contra DeBoer v. Mellon Mortgage Co.,
64 F.3d 1171, 1175 (8th Cir. 1995).
At any rate, when the district court decertified the Rule
23(b)(2) class on February 10, 1999, the new procedure was
in place and an immediate appeal could be, and was, applied
for. However, the Rule 23(b)(3) issue was not part of the
order of February 10, 1999, and is not properly before us at
this time. Nor will it do to argue, as Smith does, that we can
consider the whole of the district court's order, and reverse
for any appropriate reason. See Chudasama v. Mazda Motor
Corp., 123 F.3d 1353, 1365 (11th Cir. 1997); Bernard v. Air
Line Pilots Ass'n Int'l, 873 F.2d 213, 215 (9th Cir. 1989).
When we consider the whole of the order in question, we still
find no references to any possible Rule 23(b)(3) certification,7
and that is not surprising because the issue was not then
placed before the district court. The closest the district court
came to even addressing damages was its reflection that the
old Rule 23(b)(2) class action could not continue on the the-
ory that some incidental damages might be appropriate. Not
only had the district court refused to include damages in the
initial certification, but also damages would hardly be inci-
dental when the prospective relief portion of the action had
become moot. See Allison v. Citgo Petroleum Corp., 151 F.3d
402, 411-18 (5th Cir. 1998); Probe v. State Teachers' Ret.
Sys., 780 F.2d 776, 780 (9th Cir. 1986).
_________________________________________________________________
7 We recognize that on February 22, 1999, the district court clarified its
April 22, 1998, order by indicating that although it had not expressly
addressed the alternative motion to certify a Rule 23(b)(3) class in the ear-
lier order it did not believe that damage claims would be an appropriate
part of a class action in this case. But no appeal was sought from the Feb-
ruary 22, 1999, order.
15448
Therefore, the district court's order which refused to certify
a Rule 23(b)(3) class is not properly before us, and we will
not consider it.
C. Denial of Partial Summary Judgment
The district court denied Smith's partial summary judgment
motion because it decided that under Supreme Court prece-
dent race could be used as a factor in educational admissions
decisions, even where that was not done for remedial pur-
poses. That, in effect, encompasses the questions that the dis-
trict court thought warranted a 28 U.S.C. S 1292(b) order, and
the questions that we accepted for decision.
There can be no doubt that the district court's decision
faithfully followed Justice Powell's opinion in Regents of the
Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L.
Ed. 2d 750 (1978). In that opinion, Justice Powell, while
announcing the opinion of the Court, held that the race-based
quota system used by the Medical School at the University of
California at Davis violated both Title VI of the Civil Rights
Act of 1964, 42 U.S.C. SS 2000d - 2000d-4, and the Equal
Protection Clause of the Fourteenth Amendment. Id. at 269-
72, 98 S. Ct. at 2737-38. In arriving at that conclusion, Justice
Powell laid down certain principles.
[8] First,8 strict scrutiny will be applied to "a classification
based on race and ethnic background." Id. at 289, 98 S. Ct. at
2747. Simply put, that is because "[r]acial and ethnic distinc-
tions of any sort are inherently suspect and thus call for the
most exacting judicial examination." Id. at 291, 98 S. Ct. at
2748. Thus, when the state chooses to use race in its decision
making process, an affected individual "is entitled to a judi-
cial determination that the burden he is asked to bear on that
_________________________________________________________________
8 We will hereafter refer to these and the other principles we outline as
the First principle, the Second principle, etc.
15449
basis is precisely tailored to serve a compelling governmental
interest." Id. at 299, 98 S. Ct. at 2753.
[9] Second, if the purpose of an educational institution "is
to assure within its student body some specified percentage of
a particular group merely because of its race or ethnic origin,
such a preferential purpose must be rejected not as insubstan-
tial but as facially invalid." Id. at 307, 98 S. Ct. at 2757. Pure
(or, if you will, impure) percentages used for their own sake
are not proper.
[10] Third, "[t]he State certainly has a legitimate and sub-
stantial interest in ameliorating, or eliminating where feasible,
the disabling effects of identified discrimination. " Id. How-
ever, that will not justify a racial classification "in the absence
of judicial, legislative, or administrative findings of constitu-
tional or statutory violations." Id. And,"isolated segments of
our vast governmental structures are not competent to make
those decisions, at least in the absence of legislative mandates
and legislatively determined criteria." Id. at 309, 98 S. Ct. at
2758. As a result, when the purpose of the classification is
simply to help "certain groups . . . perceived as victims of
`societal discrimination' [that] does not justify a classification
that imposes disadvantages upon persons . . . , who bear no
responsibility for whatever harm the beneficiaries of the spe-
cial admissions program are thought to have suffered." Id. at
310, 98 S. Ct. at 2758.
[11] Fourth, the attainment of a diverse student body "is a
constitutionally permissible goal for an institution of higher
education." Id. at 311-12, 98 S. Ct. at 2759. In that regard,
"ethnic diversity" can be "one element in a range of factors
a university properly may consider in attaining the goal of a
heterogenous student body." Id. at 314, 98 S. Ct. at 2760-61.
In an admissions program dedicated to achieving a mixed stu-
dent body a university may, therefore, deem race or ethnic
background to be "a `plus' in a particular applicant's file,
[when] it does not insulate the individual from comparison
15450
with all other candidates for the available seats. " Id. at 317,
98 S. Ct. at 2762. In other words, race can be a factor in deter-
mining a particular candidate's "potential contribution to
diversity without the factor of race being decisive " when
compared to the qualities exhibited by others. Id. So, for
example, a list of factors could include, in addition to race,
such qualities as "exceptional personal talents, unique work or
service experience, leadership potential, maturity, demon-
strated compassion, a history of overcoming disadvantage,
[or] ability to communicate with the poor. " Id. So, when all
is said and done, even if race is a consideration, each appli-
cant is, in fact, treated as an individual rather than as a mere
stand-in for some favorite group. See id. at 318, 98 S. Ct. at
2762. The effect, then, is that each person's qualifications will
have been weighed fairly, and a losing candidate will not have
a basis "to complain of unequal treatment under the Four-
teenth Amendment," because, even if the last available seat
has been given to a person who received "a `plus' on the basis
of ethnic background," the loser "will not have been fore-
closed from all consideration for that seat simply because he
was not the right color or had the wrong surname. " Id.
The Law School does not assert that its program came
within the Third principle, but it does say that it came within
the Fourth one. The district court agreed that if the Law
School did come within the Fourth principle, Smith was not
entitled to a partial summary judgment. That, as we have said,
is a correct reading of Justice Powell's opinion. The difficulty
with which we are presented is that in Bakke none of the other
Justices fully agreed with Justice Powell's opinion, so we are
left with the task of deciding just what the Supreme Court
decided.
In a separate opinion, Justice Stevens, who was joined by
Chief Justice Burger and Justices Stewart and Rehnquist,
agreed only that the program under review violated Title VI
when it excluded "Bakke from the Medical School because of
his race." Id. at 421, 98 S. Ct. at 2815. Thus, there was no
15451
need to address the broader constitutional issues. Whatever
the Constitution might demand, they said, Title VI "has inde-
pendent force, with language and emphasis in addition to that
found in the Constitution," and it prohibited the program in
question. Id. at 416, 98 S. Ct. at 2812. As a result, the Fourth
principle could not save the program from violating Title VI
and the Third principle would not do so either.
Justice Brennan authored still another opinion in which he
was joined by Justices White, Marshall and Blackmun. They
would have upheld the program in question, quota system
though it was. In their view, Title VI "does not bar the prefer-
ential treatment of racial minorities as a means of remedying
past societal discrimination to the extent that such action is
consistent with the Fourteenth Amendment." Id. at 328, 98
S. Ct. at 2768. That, then, brought them to considering what
the Fourteenth Amendment required.
In the first place, they expressed discomfort with the idea
that strict scrutiny of this kind of racial classification (that is,
one that advantages others over Caucasians) should be
required when the classification did not tend to stigmatize a
less favored group. See id. at 356-58, 98 S. Ct. at 2781-82.
Still, they recognized that the " `mere recitation of a benign,
compensatory purpose' " should not be enough where race is
concerned. Id. at 358-59, 98 S. Ct. at 2782-83 (citation omit-
ted). In their view, "to justify such a classification an impor-
tant and articulated purpose for its use must be shown," and
as a result "review under the Fourteenth Amendment should
be strict -- not `strict' in theory and fatal in fact, because it
is stigma that causes fatality -- but strict and searching none-
theless." Id. at 361-62, 98 S. Ct. at 2784 (internal quotations
omitted). Thus, they would seemingly apply somewhat less
strict scrutiny, although it is clear that Justice Powell did not
mean strict in theory while fatal in fact when he articulated
the First principle.
Justice Brennan, and the others, however, did not agree
with Justice Powell's limitation of the Third principle to those
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instances where institutional discrimination was shown, or
legislative, etc., findings were made. Rather, they would per-
mit a program whose "articulated purpose [was ] remedying
the effects of past societal discrimination." Id. at 362, 98
S. Ct. at 2784. In other words, they would allow individual
institutions, and programs, like the Davis Medical School to
give "preferential treatment for those likely disadvantaged by
societal racial discrimination." Id. at 366, 98 S. Ct. at 2787.
They, therefore, approved of "race-conscious programs" for
the purpose of remedying the "disparate racial impact" that an
admissions policy might otherwise have "if there is reason to
believe that the disparate impact is itself the product of past
discrimination, whether its own or that of society at large." Id.
at 369, 98 S. Ct. at 2788.
In fine, the Justices who concurred in Justice Brennan's
opinion would have established a principle broader than the
Third principle because they would have allowed individual
institutions or departments to ameliorate societal discrimina-
tion, even without specific judicial, legislative or administra-
tive findings at the proper level. That being so, they would
have upheld the program in question. Thus, they would have
accepted an even more expansive use of racial factors than
that permitted in Justice Powell's opinion.
That leaves the Fourth principle. It is interesting to note
that Justice Brennan's opinion does not really disagree with
the Fourth principle's statement that race can be used as a
plus factor, even if there were no past societal discrimination
shown, as such. Really, his opinion did not need to do so
because he saw societal discrimination as a given, and would,
perhaps, allow much more than a simple plus to be assigned
to it. Nevertheless, he and the Justices who joined him were
of the opinion that their approach did not grant seats in the
university based solely on race, but only to "minority appli-
cants likely to have been isolated from the mainstream of
American life . . . ; other minority applicants are eligible only
through the regular admissions program." Id. at 377, 98 S. Ct.
15453
at 2792. And, they asserted, their approach also gave appli-
cants "individualized consideration." Id. at 378 n.63, 98 S. Ct.
at 2793 n.63. Finally, they saw no real difference between a
"plus" program and one that used a kind of quota, except that
the former might be "more acceptable to the public." Id. at
379, 98 S. Ct. at 2793.
Therefore, it appears that those Justices would simply give
more weight to the race factor than would the Fourth princi-
ple, but they, it seems clear, would not have eschewed the use
of a plus factor in a program that also looked to other consid-
erations. Indeed, they saw nothing unconstitutional about a
diversity based program that at least purported to take all
kinds of special characteristics and talents, including race,
into account, and they opined that a program of that sort is
certainly constitutional. See id. In other words, they agreed
with the Fourth principle's conclusion that a program of that
type was constitutional.
But what is one to make of that fragmented decision of the
Supreme Court; what guidance or principles did it convey to
an anxious nation, and to even more anxious educators? Per-
haps it is a sign of our fractious times that the Supreme Court
has had to provide us with a template for reading its fractured
opinions. It has declared that "[w]hen a fragmented Court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, `the holding of the Court
may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.' "
Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993,
51 L. Ed. 2d 260 (1977) (citation omitted); see also Harris v.
Wright, 93 F.3d 581, 584 (9th Cir. 1996); United States v.
Puerta, 982 F.2d 1297, 1304 (9th Cir. 1992).
Bakke presents a special problem because Justice Bren-
nan's opinion disagreed with Justice Powell's opinion that the
Davis Medical School program, as it then stood, had to be
overturned on constitutional grounds. The overturning of that
15454
program, thus, actually required the vote of Justice Powell
plus the votes of those who joined in Justice Stevens' opinion.
The latter, however, so voted on the broad basis that Title VI
precluded all race-conscious admission policies. Thus, Justice
Powell's opinion was certainly more narrow than theirs in that
respect. Still, it was clear that a majority of the Court did not
take the view reflected in Justice Stevens' opinion. A majority
would have allowed for some race-based considerations in
educational institutions, both under Title VI and under the
Fourteenth Amendment. Thus, a race-based possibility must
be taken to be the actual rationale adopted by the Court. Cer-
tainly, Justice Powell's opinion has often been cited approv-
ingly in that regard. See, e.g., Metro Broad., Inc. v. FCC, 497
U.S. 547, 568, 110 S. Ct. 2997, 3010, 111 L. Ed. 2d 445
(1990), overruled on other grounds by Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d
158 (1995); Johnson v. Transp. Agency, 480 U.S. 616, 637-
38, 107 S. Ct. 1442, 1455, 94 L. Ed. 2d 615 (1987); Higgins
v. City of Vallejo, 823 F.2d 351, 358 (9th Cir. 1987); see also
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 285-86, 106
S. Ct. 1842, 1853, 90 L. Ed. 2d 260 (1986) (O'Connor, J.,
concurring). We must, therefore, apply the Marks analysis to
the opinions of Justices Powell and Brennan.
When we do, it becomes apparent that Justice Powell's
analysis is the narrowest footing upon which a race-conscious
decision making process could stand. If educational institu-
tions can sometimes use race in their admission alchemy, vir-
tually every point in Justice Brennan's opinion would
establish broader grounds for allowing that. The standard of
scrutiny set forth in the First principle would become, if any-
thing, less demanding. The Third principle would be vastly
expanded to allow any unit of any institution to take account
of societal discrimination. Finally, race would, at the very
least, become a much more weighty factor in the Fourth prin-
ciple, and even come close to being a trump where some dis-
advantage to a member of a favored group was shown. True
it is that Justice Brennan did not specifically say that "race"
15455
could be used to achieve student body diversity in the absence
of any societal discrimination, but, then, there was no need for
him to do so in light of his view about past societal discrimi-
nation. Yet, we can hardly doubt that he would have
embraced that somewhat narrower principle if need be, for he
thought that it was simply an allotrope of the principle he was
propounding. If the various opinions in Bakke mixed so many
different colors that the result became rather muddy, that
result was still clear enough to permit educators to rely upon
the opinion that gave the decision its life and meaning -- the
opinion that avoided both polar possibilities. More impor-
tantly, we are required so to do.
We are well aware of the fact that much has happened since
Bakke was handed down. Since that time, the Court has not
looked upon race-based factors with much favor. See, e.g.,
Adarand, 515 U.S. at 227, 115 S. Ct. at 2112-13; City of Rich-
mond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S. Ct. 706,
721, 102 L. Ed. 2d 854 (1989). Still, it has not returned to the
area of university admissions, and has not indicated that Jus-
tice Powell's approach has lost its vitality in that unique niche
of our society. As we see it, regardless of what we think the
Supreme Court might do, we must let it decide. It has admon-
ished that "other courts [should not] conclude [that] our more
recent cases have, by implication, overruled an earlier prece-
dent." Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997,
2017, 138 L. Ed. 2d 391 (1997). On the contrary, it has said,
"[i]f a precedent of this Court has direct application in a case,
yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of over-
ruling its own decisions." Rodriguez de Quijas v. Shearson/
Am. Express, Inc., 490 U.S. 477, 484 , 109 S. Ct. 1917, 1921-
22, 104 L. Ed. 2d 526 (1989).
[12] We, therefore, leave it to the Supreme Court to declare
that the Bakke rationale regarding university admissions poli-
15456
cies has become moribund, if it has. We will not. 9 For now,
therefore, it ineluctably follows that the Fourteenth Amend-
ment permits University admissions programs which consider
race for other than remedial purposes, and educational diver-
sity is a compelling governmental interest that meets the
demands of strict scrutiny of race-conscious measures.
CONCLUSION
The district court correctly decided that Justice Powell's
opinion in Bakke described the law and would require a deter-
mination that a properly designed and operated race-
conscious admissions program at the law school of the Uni-
versity of Washington would not be in violation of Title VI
or the Fourteenth Amendment. It was also correct when it
determined that Bakke has not been overruled by the Supreme
Court. Thus, at our level of the judicial system Justice Pow-
ell's opinion remains the law.
However, the Law School has encountered a peripeteia in
its own state; it is bound by I-200, which precludes it from
granting "preferential treatment" to any individual "on the
basis of race." That has rendered Smith's request for prospec-
tive relief moot because we "[should] not assume that a uni-
versity, professing to employ a facially nondiscriminatory
admissions policy, would operate it as a cover for the func-
tional equivalent of a quota system. In short, good faith
[should] be presumed in the absence of a showing to the
_________________________________________________________________
9 We acknowledge that Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996),
decided to the contrary. The flaws in that decision, however, stem from
its failure to properly apply the teachings of Marks, 430 U.S. at 193, 97
S. Ct. at 993, and Agostini, 521 U.S. at 237, 117 S. Ct. at 2017. See Lesage
v. Texas, 158 F.3d 213, 223 (5th Cir. 1998) (Reavley, J. concurring),
reversed on other grounds, 528 U.S. 18, 120 S. Ct. 467, 145 L. Ed. 2d 347
(1999); Hopwood v. Texas, 84 F.3d 720, 723 (5th Cir. 1996) (Politz, C.J.,
dissenting from failure to grant rehearing en banc).
15457
contrary . . . ." Bakke, 438 U.S. at 318-19, 98 S. Ct. at 2763.
AFFIRMED.
15458