Smith v. Univ. of WA
| Decision Date | 04 December 2000 |
| Docket Number | No. 99-35347,No. 99-35209,No. 99-35348,99-35209,99-35347,99-35348 |
| Citation | 233 F.3d 1188 |
| Parties | (9th Cir. 2000) 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 MADRID; RICHARD KUMMERT; MICHAEL TOWNSEND; ROLAND 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. THE UNIVERSITY OF WASHINGTON LAW SCHOOL, Defendant-Appellee. KATURIA E. SMITH; ANGELA ROCK; MICHAEL PYLE, Plaintiffs-Appellants, v. THE UNIVERSITY OF WASHINGTON LAW SCHOOL; WALLACE D. LOH; ROLAND HJORTH; SANDRA MADRID; RICHARD KUMMERT, Defendants-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael E. Rosman, Center for Individual Rights, Washington, 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.
Appeals from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding. D.C. No.CV-97-00335-TSZ
Before: Thomas M. Reavley,1 Ferdinand F. Fernandez, and Sidney R. Thomas, Circuit Judges.
Katuria Smith, Angela Rock, and Michael Pyle (collectively 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 administration 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 decertified 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.
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 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 terminated.
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 treatment 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 complained 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 eliminated the use of race as a criterion in its admission process. The new admission policy did retain a diversity clause, which stated that "[i]mportant academic objectives are furthered by . . . students . . . from diverse background[s]" and then went on to set out a nonexhaustive list of factors as indicative 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 .. . ; evidence 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 passage 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 raceconscious measures under the Fourteenth Amendment to the United States Constitution; and (2) whether race may be considered 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.
Pursuant to Rule 23(f) and our order which granted permission 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 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.
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 summary 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.
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 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 initiative 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 todeclare 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.
Mootness is, of course, simply one facet of justiciability. 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:"Mootness is `the doctrine of standing set in a time frame: The requisite personal interest that must exist at the...
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