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March 4, 2002


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge.

On March 19, 2001, the Court granted in part and denied in part the defendant's motion to dismiss the plaintiff's original complaint. Thereafter, the plaintiff amended his complaint. Now the defendant again seeks dismissal, or in the alternative, summary judgment. In addition, the plaintiff has moved for summary judgment on the issue of liability. Specifically, the plaintiff claims that as a matter of law the defendant's use of racial and gender classifications in its promotion policy violated his Fifth Amendment rights and that the only issue left for the Court to resolve concerns fashioning an appropriate remedy. After a full review of the parties' memoranda, the applicable law, and for the following reasons, the Court DENIES in part and GRANTS in part the defendant's motion and DENIES in part and GRANTS in part the plaintiff's motion.


The facts of this case have already been fully recounted in the Court's March 19, 2001 Memorandum Opinion. For the present purposes, it enough to state that the plaintiff is a white male who is on retired status in the United States Army. He is ranked as a lieutenant colonel and, during the years 1996 and 1997, he sought promotion to the rank of colonel. In each instance, he was denied promotion.
On October 25, 1999, the plaintiff filed this action alleging that his failure to be promoted was due to the Army's equal opportunity policy. His complaint clearly alleged that the Army's policy was unconstitutional both facially and as applied. See Amended Complaint, Mar. 19, 2001 (stating that the defendant's equal opportunity instructions "both as set forth in writing and as actually interpreted and executed" violated the plaintiff's constitutional rights.)
On March 31, 2000, the Army moved to dismiss LTC Saunders' original complaint on several standing and mootness grounds. As such, the Army did not address whether the equal opportunity policy was, on its face, unconstitutional. The Court granted in part and denied in part the Army's motion. Specifically, the Court dismissed Saunders' claims for prospective relief on the ground that he, as a retired officer, had no standing to seek such relief.*fn1 With respect to Saunders' retrospective claims, the Court found that Saunders had properly stated a claim.
Thereafter, the plaintiff amended his complaint. He added an allegation that he was denied "equal protection of the laws [through the use of] racial and sexual classifications in [the] composition of the [promotion] selection boards." Amended Complaint, at 7.
In response to Saunders' amended complaint, the Army moved to dismiss, or in the alternative, for summary judgment. Aside from its argument against the selection board composition claim, the Army advances several different arguments:
(1) Saunders' claim with respect to the 1996 selection board should be dismissed because the equal opportunity policy did not discriminate on the basis of race or gender;
(2) Saunders' claim with respect to the 1997 selection board should be dismissed because
(a) his claim was mooted by the convening of a special selection board,
(b) he would not have been promoted even in the absence of the equal opportunity policy, and
(c) the Army's behavior is justifiable under a standard of intermediate scrutiny.
A. The Defendant's Motion to Dismiss the Plaintiff's Selection Board Membership Claim
1. Standard of Review for a Motion to Dismiss
If a plaintiff has failed "to state a claim upon which relief can be granted," a court may grant a defendant's motion to dismiss. Fed.R.Civ.P. 12(b)(6); see also Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000). In evaluating a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and give the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605,608 (D.C. Cir. 1979); see also Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." Wiggins v. Hitchens, 853 F. Supp. 505, 508 n. 1 (D.D.C. 1994) (citing 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987)).
2. The Defendant's Motion
As the plaintiff's amended complaint is identical to the plaintiff's original complaint in all respects save one, few words are needed to resolve the defendant's motion. The only issue presented in the instant motion that was not addressed by the Court's March 19, 2001 Opinion is the issue of selection board composition. On this issue, the Court finds that the plaintiff is without standing to facially challenge the selection board composition, but may proceed with an as applied claim. See Ward v. Caldera, 138 F. Supp.2d 1 (D.D.C. 2001).
To have jurisdiction over a case, a court must find there to be "a causal relationship between the [plaintiff's] injury and the challenged conduct." Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663 (1993). In the case at hand, there is no such relationship between the defendant's membership policy and the plaintiff's non-promotion. The Court recently explained its reasoning at length in Ward v. Caldera:
To hold [in favor of the non-promoted plaintiff] would be to hold that every time "one or more females and one or more members of racial groups other than Caucasian" are placed on a selection board, the collective promotion decisions of the selection board are unavoidably altered. Such a conclusion would necessarily include two presumptions. First, that all women and non-whites have an inherent and unavoidable disposition to favor their own race and gender. And second, that all promotion decisions by selection boards are controlled by the voting habits of a few women and non-whites.
The first presumption is not just patently false, it is diametrically opposed to Supreme Court jurisprudence which this Court is bound to follow. The Supreme Court has consistently shunned such racial and gender stereotypes, and, in any event, has never held that a decisionmaker's race or sex, by itself, prevents her from making an objective decision.
The second presumption behind the plaintiff's claim is completely devoid of logic. While it is reasonable to assume that women and non-whites, together with the other members of selection boards, inform the decisions of the board, it is patently unreasonable to assume that a few members, constituting a numerical minority of the board, can control the outcome of the board's decisions. Thus, even if women and non-whites were possessed of the class narcissism which the plaintiff implies, there is no reason to think they would be successful in converting the rest of the board to their views.
Of course, there exists the possibility (though it is a slight one for sure) that a particular woman or minority, possessed of both class narcissism and Machiavellian powers of persuasion, could pull off a coup of racial or gender discrimination against a particular applicant. But the mere possibility of this is a far cry from the necessity that, in a facial challenge, the plaintiff "establish that no set of circumstances exists under which the [policy] would be valid."

Ward, 138 F. Supp.2d at 8-9 (citations omitted).

Regarding selection board composition, the instant case presents the same material facts as Ward v. Caldera. Thus, the Court finds that the plaintiff's facial challenge to the policy must fail.*fn2 The plaintiff, however, may continue to pursue an as-applied challenge; that is, an allegation that the 1996 and 1997 selection boards that considered his promotion intended to discriminate against him. As the Court recognized in Ward,
the plaintiff in this case might, in accordance with his duty to demonstrate a discriminatory purpose under Washington v. Davis, 426 U.S. 229, 242 (1976), utilize the selection board membership, together with other evidence such as the promotion rate for certain races and genders, to persuade the Court that he has been discriminated against.
Ward, 138 F. Supp.2d at 9. Thus, although the Court holds that board membership itself is not conclusive (or even probative) as to discrimination, the individual identities of board members may, of course, play a role in discrimination.
B. The Plaintiff's Standing to Seek Retrospective Relief
Before reaching the merits of a particular claim, a federal court must assure itself that it has jurisdiction over the case. See FW/PBS Inc. v. Dallas, 493 U.S. 215, 231 (1990) (noting that "the federal courts are under an independent obligation to examine their own jurisdiction, and standing `is perhaps the most important of the jurisdictional doctrines."); Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (same); Warth v. Seldin, 422 U.S. 490 (1975) (same). In order for a court to have jurisdiction over a case, the plaintiff bringing the suit must have standing to raise the claims asserted therein. Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663 (1993) (recognizing that "[t]he doctrine of standing is an essential and unchanging part of the case-or-controversy requirement of Article III[.]"). Courts should not, however, consider the merits of the plaintiff's claim in determining whether he has standing to bring the lawsuit. Warth, 422 U.S. at 500 (recognizing that "standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal"); Whitmore, 495 U.S. at 155 (stating that "we thus put aside for now Whitmore's Eighth Amendment challenge and consider whether he has established the existence of a `case or controversy.'"). In fact, "[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth, 422 U.S. at 501; AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982) (noting that "[f]or purposes of the standing issue, we accept as valid Congressman Sabo's pleaded legal theory."). As the Court has already dismissed the plaintiff's claims for prospective relief, the Court is now presented with the interesting and uncommon question of what showing a plaintiff seeking retrospective relief must make to obtain the jurisdiction of this Court.*fn3 The Court enunciates this showing below and finds that the plaintiff has met its requirements.
1. The Plaintiff's Injury in Fact
In order to have standing a plaintiff must demonstrate that: (1) he has suffered an injury that is both (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to (or caused by) the conduct of which he complains; and (3) the injury is likely to be redressed by a court decision in his favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Skaggs v. Carle, 110 F.3d 831, 834 (D.C. Cir. 1997). While all three of these elements must be satisfied in order for a plaintiff to have standing, "the central focus is fixed on the injury requirement." Wright, Miller, and Cooper Federal Practice and Procedure 418 (1984). The reason that the injury component of this tripartite test is particularly important is because without first determining the precise injury that a plaintiff has suffered or will suffer, it is impossible for a court to ascertain whether the remaining two requirements — causation and redressability — have been met. Indeed, there is no question that the manner in which the plaintiff's injury is defined will necessarily impact whether the injury is "fairly traceable" to the actions of the defendant and whether the injury can be "redressed" by a favorable decision of the court. Thus, in enunciating the showing that a plaintiff seeking retrospective damages has to make in order to have standing, the Court must begin by determining what the "injury" is in this type of case.
a. Inability to Compete on an Equal Footing

When a plaintiff challenging an allegedly discriminatory*fn4 governmental policy seeks prospective relief, the plaintiff "need not allege that he would have obtained the benefit but for the [discriminatory policy] in order to establish standing." Northeastern Fla., 508 U.S. at 666. Rather, the "`injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the [discriminatory policy], not the ultimate inability to obtain the benefit." Id. (noting that "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."). See also Adarand Constructors, 515 U.S. at 211 (same). Thus, for a plaintiff seeking prospective relief to suffer an injury for purposes of standing, he only needs to demonstrate that he is ready and able to apply (or be considered) for a benefit and that a discriminatory policy prevents him from doing so on an equal basis. Id. Moreover, based on this definition of injury in fact, it is relatively easy for a plaintiff to demonstrate both that the discriminatory policy is the `cause' of his injury and that a judicial decree directing the government to discontinue its program would `redress' the injury. See, e.g., Northeastern Fla., 508 U.S. at 666.

Some courts have also applied the "inability to compete on an equal footing" standard in cases where the plaintiff seeks retrospective relief. See, e.g., Wooden v. Board of Regents of the University System of Georgia, 247 F.3d 1262 (11th Cir. 2001);*fn5 Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487 (10th Cir. 1998). For example, the plaintiffs in Wooden, who unsuccessfully sought admission to the University of Georgia, alleged that the university's freshman admissions policy illegally favored non-white applicants. Wooden, 247 F.3d at 1264. The Eleventh Circuit began its discussion of standing by explicitly citing cases such as Northeastern Florida and Adarand Constructors for the proposition that "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." Id. at 1274-76. Based on this definition of injury in fact, the court concluded that:
the critical inquiry for standing purposes [is] whether the plaintiff's application has actually been treated differently at some stage in the admissions process on the basis of 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.

Id. at 1278 (emphasis in original).*fn6 The court further held that to the extent the injury is differential treatment, "that injury was unquestionably caused by" the University and the "court could redress that injury" in a number of ways. Id. at 1281. Moreover, in Buchwald, the plaintiff, who unsuccessfully sought admission to the University of New Mexico School of Medicine, alleged that the school's admissions process illegally favored long-term residents. Again, relying on cases like Northeastern Florida, the Tenth Circuit found that:

[i]njury in fact in an equal protection case like this may simply be the existence of a government-erected barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group. It is not necessary for the plaintiff to show that she would have received the benefit but for the operation of the policy, because the injury is the imposition of the barrier itself. Here defendants admit favoring long-term over short-term residents, all other qualifications being equal, which by itself is therefore a sufficient demonstration of injury in fact. Because it is clear that defendant's stated policy `caused' the plaintiff to compete at a disadvantage vis-à-vis long term residents, we have little doubt that, were the district court to award damages, plaintiff's injury would likely be redressed.

Buchwald, 159 F.3d at 493.*fn7 It is important to note that, under this standard, plaintiffs who were not actually subjected to different treatment-that is, plaintiffs who competed on an equal footing-lack standing since they failed to suffer an injury in fact. Wooden, 247 F.3d at 1282-83 (finding 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."); Donahue v. City of Boston, 2001 WL 1682613 (D.Mass. December 13, 2001) (stating that "[t]he undisputed facts demonstrate that Donahue's test scores and lack of statutory preference doomed his candidacy to failure before the consent decree came into play. Because Donahue has no injury, he has no standing.").

b. Actual Denial of the Benefit

In contrast, other courts have found that when a plaintiff seeks retrospective relief the "injury in fact" is the actual denial of the benefit rather than the inability to have competed for the benefit on an equal footing.*fn8 Yeager v. General Motors Corp., 265 F.3d 389, 395 (6th Cir. 2001);*fn9 Comfort v. Lynn School Committee, 150 F. Supp.2d 285, 299-301 (D.Mass. 2001) (noting that "standing to claim compensatory relief requires a plaintiff to show that he would receive the benefit in question were race not considered, whereas to claim equitable relief, a showing of inability to compete on an equal footing will suffice."); Sims v. Ware, 1999 WL 637226 at *2 (N.D. Texas August, 20, 1999) (finding "that the plaintiffs have failed to meet this fundamental standing requirement as complete eradication of the affirmative action plan would not result in promotion to the rank of Senior Corporal for these seven Baird plaintiffs."). For example, in Yeager, the plaintiff, who was not admitted into General Motors Corporation's apprentice program, alleged that the apprentice program (which included a pre-apprentice training program) impermissibly favored minority and female candidates. In affirming the district court's determination that Yeager lacked standing to bring the suit, the Sixth Circuit found that "Yeager was not injured within the meaning of Article III because GMC hired fifty apprentices in 1996 and fifty candidates with higher unadjusted scores outranked Yeager." Yeager, 265 F.3d at 395. That is, the court found that Yeager did not suffer an injury in fact — and therefore he lacked standing — because he would have been rejected even under race and gender neutral criteria. Id. Cf. McNamara v. Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998) (noting that "[h]ad there been no favoritism, the six low-ranking plaintiffs would not have been promoted, because promotions would have stopped at 146 and the highest-ranking of these plaintiffs was as we said number 152. A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.").*fn10

Even if the injury in fact is the actual denial of a benefit rather than the inability to have competed for it on an equal footing, however, plaintiffs do not have to show — at least in employment discrimination cases — that they would have received the benefit absent the discriminatory policy. As Judge Posner, writing for the Seventh Circuit, explained in Doll v. Brown:
The plaintiff in an ordinary tort case must prove not only that the defendant committed a wrongful act but also that the act injured the plaintiff, that is, made him worse off than he would have been had the defendant not acted. Both wrong and injury are elements of the plaintiff's case, which he thus must prove by a preponderance of the evidence, because, as we tirelessly repeat . . . there is no tort without an injury. But, in the case of the statutory and constitutional torts of employment discrimination, the Supreme Court has held that the burden of proof on the issue of injury rests on the employer, the defendant, rather than the employee, the plaintiff.
Doll, 75 F.3d 1200, 1202 (7th Cir. 1996). See also Bishop v. Gainer, 272 F.3d 1009, 1016 (7th Cir. 1996) (agreeing with the district court's conclusion that "[i]t is defendants who bear the burden of establishing that plaintiffs would not have been promoted irrespective of any racial or gender discrimination.").
In employment discrimination cases where the plaintiff challenges an employer's decision as being based on illegal as well as legal factors, the injury that the plaintiff has to allege (and, in fact, ultimately prove) is that the impermissible reason was a motivating or substantial factor in the employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (finding that "[w]hen, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was `because of' sex and the other, legitimate considerations — even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account."); Thomas v. NFL, 131 F.3d 198, 202-03 (D.C. Cir. 1998) (recognizing that "[a] plaintiff asserting mixed motives must persuade the trier of fact by a preponderance of the evidence that [an] unlawful [factor] constituted a substantial factor in the defendant's action.").*fn11 As the Supreme Court stated in Price Waterhouse, which was a Title VII action based on gender discrimination, "our assumption always has been that if an employer allows gender to affect its decisionmaking process, then it must carry the burden of justifying its ultimate decision. We have not in the past required women whose gender has proved relevant to an employment decision to establish the negative proposition that they would not have been subject to that decision had they been men, and we do not do so today." Price Waterhouse, 490 U.S. at 248 (stating that the "critical inquiry . . . is whether gender was a factor in the employment decision at the moment it was made.") (emphasis in original); Tooney v. Block 705 F.3d 1364, 1366 (D.C. Cir. 1983) (noting that "in such circumstances it is unreasonable and destructive to the purposes of Title VII to require the plaintiff to establish in addition the difficult hypothetical proposition that, had there been no discrimination, the employment decision would have been made in his favor.").*fn12 In applying this standard to employment discrimination suits, the Court explicitly cited cases in other contexts, such as Mt. Healthy City Board of Education v. Doyle, for the proposition that the plaintiff only has to show that an illegal motive was "a `substantial' or `motivating factor' in the adverse treatment of him by his employer." Price Waterhouse, 490 U.S. at 248-49. Moreover, the Court further noted that "[i]n saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman." Id. at 250.*fn13 Once a plaintiff has shown that the illegal criteria was a motivating or substantial factor, "the factfinder is entitled to presume that the employer's discriminatory animus made a difference to the outcome, absent proof to the contrary by the employer." Id. at 276 (O'Connor, J., concurring). Finally, because the injury under this standard is that the employer relied on an impermissible factor in making the decision, there is no doubt that such reliance would be fairly traceable to the actions of the employer and that a favorable decision by the court could redress the injury.*fn14
2. The "Same Decision" Defense and Texas v. Lesage

Under this latter standard, "[w]hen the plaintiff successfully shows that an unlawful motive was a substantial factor in the employer's action, the defendant may seek to prove in response that it would have taken the contested action even absent the discriminatory motive." Thomas, 131 F.3d at 202-03. The reason why the employer may attempt to make this showing is that "under Price Waterhouse a defendant who is guilty of acting pursuant to an unlawful motive may nonetheless escape liability by proving that it would have made the same decision in the absence of the unlawful motivation." Id.; Doll, 75 F.3d at 1202 (noting that "[i]f the plaintiff proves that the employer was motivated to take the action of which the plaintiff complains, which might be, as here, the denial of a promotion, by a discriminatory purpose, but the employer proves that he would have taken the same action even if he had had no discriminatory purpose, the employer has negated liability and not just injury.").*fn15 Courts have referred to this showing by the employer as the same decision defense. In order to satisfy this burden, the employer "must show that its legitimate reason, standing alone, would have induced it to make the same decision." Price Waterhouse, 490 U.S. at 252. "As to the employer's proof, in most cases, the employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive." Id. See also Hopkins v. Price Waterhouse, 920 F.2d 967, 972-74. Merely showing that the employer could have made the same decision is not the same as proving that it would have made the same decision, and such a demonstration is therefore insufficient. Id. See also Speedy v. Rexnord Corp., 243 F.3d 397, 402 (7th Cir. 2001) ("proving that the same decision would have been justified absent an [illegal] motive is not the same as proving the same decision would have been made absent the motive."). If the employer is unable to show that it would have made the same decision absent the illegal factor, then the factfinder is justified, as noted above, in concluding that the decision was made because of consideration of the illegal factor. Price Waterhouse, 490 U.S. at 252.

One recent (and controversial) application of the same decision defense occurred in Texas v. Lesage, 528 U.S. 18 (1999). Lesage involved the claim of a white applicant, Francois Daniel Lesage, who alleged that he had been denied admission to a school's Ph.D. program in counseling psychology on account of his race. The school admitted to considering race in the selection process, but argued — in its motion for summary judgment — that Lesage's qualifications were such that he would have been denied admission even if the selection process were colorblind. The school initially noted that in the year Lesage applied, it received 223 applications for the program and offered admission to approximately 20 candidates. The school submitted evidence that "[a]t least 80 applicants had higher undergraduate grade point averages (GPA's) than Lesage, 152 applicants had higher Graduate Record Examination (GRE) scores, and 73 applicants had both higher GPA's and higher GRE scores." Id. at 19. The school also filed an affidavit of Professor Ricardo Ainslie, one of two faculty members on the school's admissions committee. In his affidavit, Professor Ainslie stated that in addition to having a lower GPA and GRE score than several other applicants, Lesage also had "weak" letters of recommendation and his personal statement indicated that he only had a "superficial interest" in the field. Id. Based on these factors, Professor Ainslie stated that Lesage's application was rejected early in the review process, when the committee was winnowing the full application pool to a list of 40. Id. Based on this evidence, the District Court concluded that race did not effect the decision to reject Lesage and that there was uncontested evidence that the students ultimately admitted to the program had credentials that the committee considered superior to the plaintiff's. It therefore granted the university's motion for summary judgment and dismissed the case.

Although the Fifth Circuit recognized the district court's findings as undisputed, it nevertheless concluded that they were irrelevant to the question before the court, namely, "whether the state violated Lesage's constitutional rights by rejecting his application in the course of operating a racially discriminatory admissions program."*fn16 Texas v. Lesage, 158 F.3d 213, 222 (5th Cir. 1998). In reversing the district court, the Fifth Circuit found that summary judgment could not be granted in favor of the school because there remained a factual dispute as to whether the stage of review during which it rejected Lesage's application was in some way race conscious. Id. The Fifth Circuit additionally found that the possibility that Lesage "would not have been offered admission [wa]s relevant only to the quantum of damages available — not the pure question of the state's liability, which [wa]s the issue on summary judgment." Id. at 222.

On appeal, the Supreme Court reversed. The Court held that "where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government's conclusive demonstration that it would have made the same decision absent the discrimination precludes any finding of liability." Lesage, 528 U.S. at 21. In making this determination, the Court found 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 for the 1996-1997 academic year even if [the school] 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. Id. at 20. Specifically, the Court cited its decision in Mt. Healthy City Board of Education v. Doyle as providing the appropriate framework to apply in this type of case. Id.*fn17 The Court observed that under Mt. Healthy, "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." Id.; See also Mt. Healthy, 429 U.S. at 287 (finding that initially, "the burden was properly placed upon [the plaintiff] to show that his conduct was constitutionally protected, and that this conduct was a `substantial factor' or to put it in other words, that it was a `motivating factor' in the Board's decision not to rehire him. [Plaintiff] having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to [the plaintiff's] reemployment ...

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