                                            Filed:   August 5, 2002

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                             No. 01-2039
                           (CA-98-1585-L)



Rob Farmer,

                                               Plaintiff - Appellant,

          versus


David J. Ramsay, Doctor, et al.,

                                              Defendants - Appellees.



                             O R D E R



     The court amends its opinion filed August 1, 2002, as follows:

     On page 10, first paragraph, line 3 -- “recommendatio” is

corrected to read “recommendation.”

     On page 10, first paragraph, line 9 -- “the district cor-

rectly” is corrected to read “the district court correctly.”

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
           UNPUBLISHED

   UNITED STATES COURT OF APPEALS

          FOR THE FOURTH CIRCUIT


ROB FARMER,
     Plaintiff-Appellant,

     v.

DAVID J. RAMSAY, Doctor; DONALD
E. WILSON, Doctor; MILFORD M.                          No. 01-2039

FOXWELL, JR.; UNIVERSITY OF
MARYLAND AT BALTIMORE;
UNIVERSITY OF MARYLAND SCHOOL OF
MEDICINE,
     Defendants-Appellees.


Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

       (CA-98-1585-L)

   Argued: April 3, 2002

  Decided: August 1, 2002

Before NIEMEYER, KING, and GREGORY, Circuit Judges.


____________________________________________________________

Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Niemeyer and Judge King joined.

____________________________________________________________

                 COUNSEL

ARGUED: John Willard Montgomery, Washington, D.C., for Appel-
lant. Dawna Marie Cobb, Assistant Attorney General, Baltimore,
Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney
General of Maryland, Baltimore, Maryland, for Appellees.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

____________________________________________________________

                  OPINION

GREGORY, Circuit Judge:

   Appellant, Rob Farmer, appeals the district court's order granting
summary judgment in favor of Appellee, the University of Maryland
School of Medicine. Farmer claims that the University's race-
conscious admissions process is inconsistent with the Equal Protec-
tion Clause of the United States Constitution. For reasons that follow,
we affirm the judgment of the district court.

             I.

   As the district court found, there is substantial evidence that the
University of Maryland School of Medicine (UMSM) considers race
during the admissions process. Cognitive factors, primarily grade
point average (GPA) and Medical College Admissions Test (MCAT)
scores, are the most important criteria for admission, but the school
also considers "non-cognitive" factors, such as letters of recommenda-
tion, family background, work history, personal statements, and race.1
____________________________________________________________
  1
     The record does not suggest the use of any rigid formula for determin-
ing the relative weight of race or other non-cognitive factors. Moreover,
there is no evidence that UMSM segregates applications into different
tracks based on race, sets aside a specified number of spots for minori-
ties, or operates under an express quota system. It is enough, for pur-
poses of this appeal, to accept the Appellant's assertion that cognitive
factors are the most important considerations for admission, and that race
also plays an important role as a non-cognitive factor.

             2
   Like many universities, UMSM processes applications through a
series of stages, weeding out unqualified candidates at each stage.
Candidates who survive the early stages are given a personal inter-
view, and the process culminates in a vote by the admissions commit-
tee. At the first stage, applicants complete a standard American
Medical College Admissions Service application form. Applicants
may, if they so choose, identify their race on this form. These prelimi-
nary applications are filtered by residency, GPA, and MCAT scores.
Applications from Maryland residents are almost invariably sent to
the second stage. Many other applications, however, are culled from
the pack at the first stage. In the second stage, applicants complete a
lengthier application, which includes the submission of letters of rec-
ommendation and personal statements, as well as GPA and MCAT
scores. Each application is assigned to a member of the admissions
committee, who presents the application to the full committee along
with a recommendation whether the applicant should be interviewed.
Each member of the admissions committee receives a report including
the applicant's grades, MCAT scores, undergraduate and graduate
institutions attended, degrees earned, age, race (if provided by the
applicant), and residency. The committee members consider this
information as well as the remaining non-cognitive factors, see ante
at 2. The full committee then votes to grant the applicant an interview,
or to reject the applicant without an interview. After the selected
applicants are interviewed, the applicant's full application is pre-
sented again to the admissions committee, which votes to either reject
the application or offer admission.

   Farmer, a white male, applied to UMSM three times—in 1994,
1995, and 1996—and was rejected without an interview each time.
Disappointed by his rejection, Farmer filed suit, alleging that
UMSM's race-conscious admissions policy was unconstitutional. Far-
mer limited his challenge to the rejection of his 1995 application—
that being his strongest application.

   Farmer's 1995 application revealed, as the district court noted, that
Farmer spent the nine years following his high school graduation rock
climbing, hitchhiking, and juggling. In 1987, at the age of 27, Farmer
enrolled at the University of Colorado, Boulder. Farmer was uninter-
ested in medical school at the time, and took few science courses.
After graduating in 1991, Farmer moved to Maryland to work for his

             3
father repairing houses. The district court noted that this was the only
paid employment Farmer listed on his application. In 1994, Farmer
began pursuing a medical career.

   Farmer lacked the minimum number of science courses to apply to
UMSM. Consequently, from 1992 to 1993, he took science courses
at Towson University. Farmer earned a science GPA of 2.8, and he
received "C" grades in several classes, including Basic Math and Sci-
ence, General Chemistry, Organic Chemistry, and Immunology.2 In
April 1994, Farmer took the MCAT for the first time. He concedes
his scores were poor. When he took the MCAT a second time, he
greatly improved his score.3

   In 1995, Farmer was one of 4,466 applicants seeking one of
approximately 140 available places in the Fall 1996 entering class. Of
the 4,466 applicants, 518 were offered interviews and of those, 299
were offered admission and 144 matriculated. The overall rate of
admission was 6%. Fifty-six black students were offered admission to
UMSM's Fall 1996 class; twenty-eight black students chose to attend.
____________________________________________________________
   2
     Farmer's experts stated that the average science GPA for minority
admittees to UMSM was 3.32. The average science GPA for non-
minority admittees was 3.63. J.A. 1414.
   3
     On the 1994 MCAT, Farmer received the following scores: Verbal
reasoning — 11 (85-96 percentile), Physical sciences — 6 (13-27 per-
centile), Writing Sample — P (63-75 percentile), and Biological sciences
— 7 (24-37 percentile). In 1995, Farmer received the following scores:
Verbal reasoning — 10 (75-87 percentile), Physical science — 10 (74-86
percentile), Writing sample — S (96-99 percentile), and Biological sci-
ences — 9 (56-72 percentile).

   From these data and the data that Farmer obtained in discovery, Far-
mer's experts generated "composite" scores. Farmer's composite score
on his first MCAT was 38. Farmer's composite score on his second
MCAT was 49. The average composite MCAT score for all admittees
was 44.92. J.A. 1402. The average composite MCAT score for minority
admittees was 38.42. The average MCAT for non-minority admittees
was 46.67.

   The average GPA for all admittees is unclear from the record. The
average GPA for preferred admittees was 3.46. The average GPA for
non-preferred admittees was 3.64. J.A. 1414. Farmer's overall GPA was
3.41. J.A. 1401.

             4
   Because Farmer was a Maryland resident, his application automati-
cally advanced to the second stage. Farmer's file included his rejected
1994 application, his second MCAT score, his undergraduate tran-
script, his employment history, a second letter of recommendation
from Towson University, other personal information (such as his mis-
demeanor arrest record) and additional personal statements. Hermione
Hicks, the Director of Recruitment for the Office of Admissions at
UMSM, presented Farmer's 1995 application to the admissions com-
mittee. Hicks noted that Farmer had not held a "significant job" as an
adult and had spent "an extreme amount of time" involved in purely
recreational activities. Hicks recommended against giving Farmer an
interview. The admissions committee voted 14-0 to reject Farmer
without an interview.

   During discovery, Hick's and other committee members' deposi-
tion testimony was that race played no part in the decision to reject
Farmer. They testified that Farmer's application was rejected because
of (1) the cool letter of recommendation from Towson University, (2)
his relatively low GPA from Towson, (3) his less than average and
inconsistent MCAT scores, (4) his quirky personal statements, (5) his
sparse employment history, and (6) the inconsistent explanations Far-
mer gave for his arrest record.

   During the admissions committee's evaluation of Farmer, Ms.
Hicks read to the committee a portion of the Towson letter of recom-
mendation, which she found to be very unsupportive of Farmer:

       We greatly respect his interest in the humanities, environ-
       mental issues and human rights, but have had concerns
       about whether his personality and somewhat inconsistent
       academic performance would lend themselves to the con-
       ventions of the medical profession that he hopes to enter.

J.A. 174-175. The admissions committee, familiar with the care with
which letters of recommendations are written, understood this to be
a very poor recommendation. Every member of the admissions com-
mittee who voted on Farmer's application has attested that the Tow-
son letter was fatal to Farmer's application because it raised questions
about his personality and fitness for a medical career. J.A. 240-263;
359-360; 370; 516-521; 550; 722-723; 811-812.

             5
   The admissions committee was also concerned about Farmer's per-
sonal statements. These statements revealed negative feelings about
the medical profession. In one statement, quoting from the cartoon
"Calvin and Hobbes," Farmer stated that doctors should "be careful
or be roadkill." Farmer also described how, at age nine, he fell out of
a tree and broke his arm. According to Farmer, his doctor "pro-
nounced [him] crippled for life—a terrible falsehood to tell a nine-
year old boy." Farmer also wrote that "perhaps most doctors have not
read any new medical information in the last 12 years." He further
stated that "from a very unscientific poll, [he has] determined that
nearly everyone has a horror story to tell about a doctor."

   Returning to his personal experiences with physicians, Farmer
wrote about (1) the "absence of compassion" and "ignorance" of a
doctor treating his mother, (2) the incompetence of another physician
treating a friend for abdominal pains, (3) the "substandard" care
received by a friend's wife during nasal surgery, (4) the lack of "com-
mon sense" of his own childhood physician, and (5) the "crooked
bone in [his] hand" caused by another physician's incompetence.

   Finally, Farmer used his personal statements to disparage his fel-
low applicants to medical school. He wrote: "Most of the pre-med
students I've seen are very good at rote memorization, but they often
fall woefully short in areas of common sense, assertiveness, social
concern, and knowledge of current events." In another statement, Far-
mer wrote, "[m]ost of your prospective students are essentially inter-
changeable units; if one student doesn't fill a need somewhere,
someone else will fill that need . . . . This is why it is so important that
you accept me." According to the uncontroverted deposition testi-
mony of Ms. Hicks and another committee member, Associate Dean
Milford Foxwell, the admissions committee felt that Farmer's per-
sonal statements reflected hostility to the medical profession and con-
descension to his prospective classmates. The committee believed that
these views made Farmer a poor candidate for admission.4
____________________________________________________________
   4
     As noted above, Farmer's various applications gave different explana-
tions for his arrest record. On his 1994 application, Farmer wrote that he
had been convicted of criminal mischief after being "unjustly accused of
damaging a window screen." Farmer also wrote that he failed to appear

             6
   After being rejected by UMSM again the following year, Farmer
spent two years at Saba University's medical school in the Nether-
lands Antilles, after which he dropped out of medical school entirely.

             II.

   Farmer's complaint and amended complaint alleged claims under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; 42
U.S.C. §§ 1983 and 1981; and directly under the Fourteenth Amend-
ment's Equal Protection Clause. Farmer sought money damages, an
order requiring the medical school to admit him, and a permanent
injunction against future use of a race-conscious admissions policy.

    After substantial discovery, UMSM moved for summary judgment,
arguing that there was no genuine issue of material fact because even
if race had not been a factor in admissions decision-making, Farmer
would not have been admitted. UMSM also moved to exclude both
of Farmer's experts. The district court granted the motion for sum-
mary judgment. The district court also excluded both experts—one
because the expert's contingent fee arrangement violated Maryland
"public policy," and the other because she was unqualified to render
an expert opinion. Finally, the district court concluded that Farmer did
not have standing to pursue forward-looking injunctive relief. Farmer
filed this appeal.

            III.

   We review a grant of summary judgment de novo, employing the
same standards employed by the district court. Felty v. Graves-
Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir. 1987). Summary
judgment is appropriate if "there is no genuine issue as to any mate-
rial fact and . . . the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. Pro. 56. The party moving for summary judg-
____________________________________________________________

to answer a charge of "illegal dogwalking." On his 1995 application, Far-
mer claimed that he had merely "once pled `no contest' to something like
4th degree trespassing." Attempting to clarify, Farmer further explained
that "the woman against whom [he] allegedly trespassed later became
[his] girlfriend."

             7
ment bears the initial burden of pointing to the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The burden then shifts to the non-moving party to come for-
ward with facts sufficient to create a triable issue of fact. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).5

   Under the established law of equal protection, "even if the govern-
ment has considered an impermissible criterion in making a decision
adverse to the plaintiff, it can nonetheless defeat liability by demon-
strating that it would have made the same decision absent the forbid-
den consideration." Texas v. Lesage, 522 U.S. 18, 20-21 (1999).
According to UMSM, Farmer would not have been admitted to the
medical school if the admissions process had been race-neutral. As
the above recitation of the uncontested facts demonstrates, we think
UMSM has met its burden of demonstrating the absence of a genuine
issue of material fact; viewing the evidence in the light most favor-
able to Farmer, a reasonable finder-of-fact could only conclude that
Farmer would have been rejected absent the allegedly forbidden con-
sideration.

   Farmer's attempts to rebut UMSM's showing of the absence of a
genuine issue of material fact fall short. Most of his argument on
appeal has been dedicated to convincing us that race plays a signifi-
cant role in admissions. As we stated at the outset, we take that as
given. But the fact that race plays a major role in general is insuffi-
cient to create a genuine issue of material fact as to whether Farmer
was injured by UMSM's admissions policy. In order to demonstrate
that he was adversely affected, Farmer must be able to show that he
was displaced by beneficiaries of racial considerations. Farmer argues
that his GPA and MCAT scores were superior to several of the 56
black students who were offered admission. But that is insufficient to
create a triable issue. Even if we were to assume that MCAT scores,
GPA, and race were the only factors considered by the admissions
____________________________________________________________
  5
    We review a district court's decision to exclude an expert for abuse
of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 139 (1997).
However, as will become clear, we find it unnecessary to decide whether
the district court appropriately excluded Farmer's experts. Even consid-
ering the experts' proffered testimony, Farmer has failed to demonstrate
a genuine issue of material fact.

             8
committee, Farmer has failed to adduce any evidence that he was
within the next group of 56 applicants that would have been admitted
had the entire pool of 4,466 applicants been considered under a race-
neutral policy. Indeed, even if we were to assume (and this is more
than Farmer purports to show) that his GPA and MCAT scores were
superior to every black student who was offered admission, Farmer
has still failed to produce a single shred of evidence that he was
within the next group of 56 applicants.6 We simply do not know, even
under these extraordinarily generous assumptions, how many other
applicants were standing between Farmer and acceptance to the medi-
cal school. UMSM has said that under no circumstances would it have
accepted Farmer, and we have been given no reason to doubt it.7

   Moreover, even if Farmer was competitive with respect to cogni-
tive factors, he fails to demonstrate that he was competitive in the
other non-racial, non-cognitive factors. UMSM has come forward
with sufficient evidence that the non-cognitive aspects of Farmer's
____________________________________________________________
  6
    This is obviously a grossly excessive assumption, but it is difficult to
derive a fairer approximation (to the medical school) from the limited
record. Moreover, analysis of cognitive factors is not the entirely objec-
tive exercise that Farmer suggests it is. Not all GPAs are created equal.
UMSM also considers the caliber of the institution at which the GPA was
acquired.
    7
      In the summer of 1995, Farmer participated in the Facilitation of
Entry Program. This program is designed to help aspiring medical stu-
dents improve their credentials. The program includes a free Kaplan
MCAT preparation course. Farmer asserts that, by providing this pro-
gram, UMSM is promising to accept any participant who improves their
credentials into the medical school, and that UMSM's failure to admit
him after he completed the program proves that he was denied admission
because he is white. We are unable to find any support for this assertion
in the record, much less sufficient support to warrant a trial. It is clear
that Farmer's 1995 application was considered by the admissions com-
mittee after his completion of the summer program. For example, his
1995 letter of recommendation, which the admissions committee had
before it at the time it voted to deny him an interview, is dated November
3, 1995, well after the summer program had ended. We simply do not
find credible the assertion that UMSM would make such a conditional
promise prior to making a full review of the applicant's entire applica-
tion. And, of course, UMSM flatly denies making any such promise.

             9
application precluded admission. Every member of the admissions
committee has sworn that certain non-cognitive, non-racial factors—
most specifically the letters of recommendation—were fatal to Far-
mer's application. Farmer has provided no evidence to rebut the depo-
sition testimony of the committee members. For this reason as well,
there is no genuine controversy over whether Farmer would have
gained admission had the process been entirely color-blind.8 Because
Farmer has failed to rebut UMSM's demonstration of the absence of
a genuine issue of material fact, the district court correctly granted UMSM
summary judgment with respect to retrospective relief.

             IV.

   Farmer next argues that the district court erred when it found that
he did not have standing to pursue a permanent injunction barring
UMSM from considering race in the admissions process. The only
dispute is whether injury-in-fact exists for Farmer to pursue forward-
looking relief. In order to maintain a claim for forward-looking relief,
Farmer must allege that use of a race-conscious admissions policy in
the future constitutes "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)).
____________________________________________________________
   8
     Farmer also argues that the district court erred in ruling that his
§ 1981 count did not state a claim. Title 42, Section 1981 "guarantees to
all persons in the United States the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens." The district court ruled that
Farmer, being white himself, could not state a claim under the section.
This ruling would seem to be unassailably correct based on the plain lan-
guage of the statute, but apparently it is not. In L.N. McDonald v. Santa
Fe Trail Transportation Co., 427 U.S. 273 (1976), the Supreme Court
held that § 1981 prohibited discrimination against a white person in favor
of a black person. Id. at 285. However, the medical school accurately
points out that § 1983 is the exclusive remedy for violations of § 1981
by state actors. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989);
Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). Accord-
ingly, Farmer has no cause of action based on § 1981 independent of
§ 1983. Of course, Farmer's § 1983 claim was dismissed by the district
court's order granting summary judgment, which we affirm today.

             10
   While Farmer need not allege that he would have gained admit-
tance to UMSM in order to establish standing, he does have to allege
a real and imminent threat that he would suffer injury in the future.
And the threat of injury must be particularized as to Farmer. Ada-
rand, 515 U.S. at 211. In equal protection cases of this kind, the
injury is the inability to compete "on an equal footing." Id. (quoting
Northeastern Florida Chapter, Associated General Contractors of
America v. City of Jacksonville, 508 U.S. 656, 666 (1993)). Farmer
has not, and will not, suffer such an injury. As the above discussion
indicates, UMSM has adequately demonstrated that Farmer has not
been exposed to any "discriminatory classification." Id. Notwithstand-
ing his bare assertions to the contrary, Farmer was rejected because
of, inter alia, an unsatisfactory letter of recommendation. The letter
was unsatisfactory regardless of race. Or, to put it another way, Far-
mer was never actually treated differently on the basis of race. As for
the future, it is beyond cavil that Farmer would be rejected for the
same reason should he reapply to UMSM. Indeed, when Farmer reap-
plied to UMSM in 1996, Towson refused to give him any recommen-
dation, stating that "serious reservations" precluded a letter of
recommendation in support of Farmer's application. J.A. 72. Conse-
quently, assuming that some white applicants to UMSM do not com-
pete on equal footing, Farmer will not be exposed to any such
inequality. In short, Farmer cannot show any "particularized" injury.

    In addition, even if Farmer could show the threat of a concrete, par-
ticularized injury, he fails to demonstrate that UMSM's admissions
policy will cause him "imminent" injury. Id. "Although `imminence'
is concededly a somewhat elastic concept, it cannot be stretched
beyond its purpose, which is to ensure that the injury is not too specu-
lative for Article III purposes—that the injury is `certainly impend-
ing.'" Lujan, 504 U.S. 565 n. 2 (emphasis in original). In order to
have standing, Farmer must make an adequate showing that "some-
time in the relatively near future" he will again apply to UMSM and
be subjected to an impermissibly race-conscious admissions process.
See Adarand, 515 U.S. at 211. This he has not done. In the initial
interrogatories propounded to Farmer, he admitted that he would not
reapply to UMSM except as a transfer student. J.A. 266. It was not
until UMSM moved for summary judgment, challenging Farmer's
standing to pursue prospective relief, that Farmer insisted that he
might reapply as a first year student. Farmer, in his reply brief, states

            11
that he applied as a transfer student in 2001 (after the record had
closed) and was rejected. It is not clear from the record whether race
is a factor considered in the admission of transfer students. Thus, Far-
mer has not expressed an unequivocal intention to subject himself to
a race-conscious admissions process. Consequently, Farmer has failed
to show "imminent injury." Moreover, even assuming that race is a
consideration in the admission of transfer students, UMSM stated at
oral argument that the school does not accept transfers from Saba
University. Again, because Farmer has failed to demonstrate that he
will very likely be subjected to an allegedly unconstitutional admis-
sions process, he does not have standing to pursue forward-looking
relief. Accordingly, the district court correctly granted summary judg-
ment to UMSM.

            V.

   For the reasons stated above, the judgment of the district court is
affirmed.

           AFFIRMED

            12
