Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JENNIFER GRATZ and PATRICK HAMACHER,

for themselves and all others similarly situated,
Plaintiffs,
vs.

Civil Action No. 97-75231
Hon. Patrick J. Duggan Hon. Thomas A. Carlson

LEE BOLLINGER, JAMES J. DUDERSTADT, THE UNIVERSITY OF MICHIGAN, and THE UNIVERSITY OF MICHIGAN COLLEGE OF LITERATURE, ARTS AND SCIENCE,

ORDER APPROVING SETTLEMENT AND NOTICE PLAN, DECERTIFYINGCLASS, AND DISMISSING CASE

Defendants. ____________________________________________________/

The above matter came on for consideration by the undersigned on the Joint Motion of

the Parties for Court Approval of Settlem ent and Notice Plan, for Decertification of Class, and

for Dismissal. On the basis of the Parties’ Settlem ent Agreement and Release, proposed notice

plan and proposed form of published notice, and all the files, records, and proceedings herein,

IT IS ORDERED:

1. The Court approves the term s of the Parties’ Settlem ent Agreement and Release,

including the provisions for the m anner and form of notice and decertification of

the class.

2. The Court approves of the form of published notice as shown on Exhi bit A to the

parties’ Settlement Agreement and Release.

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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 2 of 11
3. To wit, the manner of publication shall be as follows: a. The notice shall be published at the University’s expense wi thin 30 days of the entry of this Order in 1/6th page ads in the main news section on one Sunday and one weekday edition of each of the following publications: 1. Detroit Free Press 2. Ann Arbor News 3. Grand Rapids Press b. The notice shall be published at the University’s expense within 30 days of the entry of this Order in 1/6th page ads in the main news section of one Sunday edition of each of the following publications, or i f the publication does not have a Sunday edition, then once in the main news section of a weekday edition of each publication: 1. Flint Journal 2. Holland Sentinel 3. Jackson Citizen-Patriot 4. Lansing State Journal 5. Livingston County Daily Press and Argus 6. Kalamazoo Gazette 7. Midland Daily News 8. Monroe Evening News 9. Muskegon Chronicle 10. St. Joseph Herald-Palladium 11. Traverse City Record-Eagle
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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 3 of 11

4. The class c ertified by the Court in an Order dated Decem ber 23, 1998 is

decertified.

5. The case is hereby dismissed with prejudice and without further award of cos ts or

attorneys’ fees to any party. The Court retains jurisdiction for purpose

s of

enforcing the provisions of this Order if necessary.

s/Patrick J. Duggan Patrick J. Duggan United States District Judge
Dated: January 31, 2007
I hereby certify that a copy of the foregoing document was served upon counsel of record on January 31, 2007, by electronic and/or ordinary mail.
s/Marilyn Orem Case Manager

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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 4 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JENNIFER GRATZ and PATRICK HAMACHER,

for themselves and all others similarly situated,
Plaintiffs,
vs.

Civil Action No. 97-75231
Hon. Patrick J. Duggan Hon. Thomas A. Carlson

LEE BOLLINGER, JAMES J. DUDERSTADT, THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN,

SETTLEMENT AGREEMENT AND RELEASE

Defendants. ____________________________________________________/

WHEREAS, this action was filed by Plai ntiffs Patrick Ham acher and Jennifer Gratz in

the United St ates District Court for the East ern District of Michigan in Septem ber 1977

challenging the admissions policies of the Col lege of Literature, Science, and the Arts (“LSA”)

of the University of Michigan for academic years beginning in 1995;

WHEREAS, the action nam ed as defendants th e Board of Re gents of the University of

Michigan (the “University”), Jam es Duderstadt, and Lee Bollinger (collectively referred to as

“Defendants”);

WHEREAS, in Decem ber 1998 the case was certified by the District Court as a class

action under Fed. R. Civ. P. 23(b)(2) for injunctive and declaratory relief, with Plaintiff Patrick

Hamacher named by the District Court as class representative.

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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 5 of 11

WHEREAS, the District Court at the tim e of the class certif ication determined that

damages, if any, would be determ ined in subs equent proceedings, after determ inations with

respect to liability;

WHEREAS, the United States Suprem e Court in June 2003 issued its decision and

opinion in this case upholding the consideration of race a nd ethnicity in university adm issions

while also concluding that t he LSA adm issions policies in use from 1995 until 2003 did not

consider race and ethnicity in a permissible manner;

WHEREAS, on remand from the Supreme Court the District Court held that an applica nt

who wished to pursue a claim would have to prove that the policies’ unconstitutional

consideration of race and ethnicity was a “substan tial” or “m otivating” factor in the denial of

his/her particular application and that this denial resulted in harm to him/her;

WHEREAS, the parties have agreed to settle the remaining claims on the terms set forth

herein and to terminate the certified class, while providing notice to class members;

NOW, THEREFORE, the parties agree as follows:

1. The University will pay to Patrick Ham acher and Jennifer Gratz the sum of Ten

Thousand Dollars ($10,000.00) each as com

pensation to Plaintiffs for

miscellaneous costs, expenses and tim e incurred as nam ed plaintiffs and class

representative in this action and in ex change for the release by Ham acher and

Gratz of all claim s that were or could have been asserted by them in this action,

including but not limited to claims for damages. These sums shall be paid within

14 days of approval of this Settlement Agreement by the District Court.

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2. Upon approving this settlem ent, the District Court shall term inate the certified class and dism iss the action with prej udice, while direct ing notice to class members.
3. The form of notice agreed upon by the parties, subject to the District Court’s approval, is attached hereto as Exhibit A.
4. The manner of publication agreed upon by the parties, subject to the District Court’s approval, is as follows: a. The notice shall be publ ished at the University’s expense within 30 days of the District Court’s approval of this settlement in 1/6th page ads in the main news section on one Sunday and one weekday edition of each of t he following publications: 1. Detroit Free Press 2. Ann Arbor News 3. Grand Rapids Press b. The notice shall be published at the University’s expense within 30 days of the District Court’s approval of this sett lement in 1/6th page ads in the main news section of one Sunday edition of e ach of the following publications, or if the publication does not ha ve a Sunday edition, then once in the main news section of a weekday edition of each publication: 1. Flint Journal 2. Holland Sentinel 3. Jackson Citizen-Patriot 4. Lansing State Journal
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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 7 of 11

5. Livingston County Daily Press and Argus

6. Kalamazoo Gazette

7. Midland Daily News

8. Monroe Evening News

9. Muskegon Chronicle

10. St. Joseph Herald-Palladium

11. Traverse City Record-Eagle

5. The parties agree to use their best efforts to obtain prompt approval of the District

Court of this settlem ent, including subm ission to the Court of this Settlem ent

Agreement and the accom panying proposed order (Exhibit B) for the Distr ict

Court’s approval.

6. In consideration for the payme nt to be m ade as described in paragraph 1 above,

and upon approval by the Court of this settlement, Patrick Hamacher and Jennifer

Gratz, for themselves, their heirs and successors, release Defendants and their

successors, heirs, representatives, officers, a gents and directors from all claim s

that were or could have been asserted by Patrick Ham acher or Jennifer Gratz, for

themselves, their heirs and successors arising out of the underlyi ng facts alleged

in the Complaint.

7. It is specif ically agreed and understood by the parties that this Settlem

ent

Agreement does not release or extinguish the claims, if any, of any class members

other than Patrick Hamacher and Jennifer Gratz.

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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 8 of 11
8. It is specifically agreed and understood by t he parties that the payment and other terms agreed to herein are not an adm ission of liability on the part of Defendants, who expressly deny liability to any party.
9. Attorneys for Plaintiffs will not disclose the names or identifies of any applicants, or any other confidential inform ation learned from documents, materials, or information designated by the Defendants as “confidential” under the Pr otective Order in this action, and will in all other respects cont inue to com ply with that Order. The parties agree and understand, however, that attorneys f or Plaintiffs may provide inquiring class m embers, upon request, statistical analyses and summaries of the adm issions data previously furnished by Defendants, as well as any public or otherwise non-confidential inform ation, that does not contain information identifying individual applicants.
10. Upon approval by t he Court of this Se ttlement Agreement, the action shall be dismissed with prejudice and without an award of costs to any party.

Dated: ___10/2/06_____________

__________/s/ Jennifer Gratz_________________ Jennifer Gratz

Subscribed and sworn to before me this _2_ day of October_____________, 2006.

_____________/s/_____________________ Notary Public

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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 9 of 11

Dated: 9/8/2006

____/s/ Patrick Hamacher____________________ Patrick Hamacher

Subscribed and sworn to before me this _8_ day of September, 2006.

______/s/____________________________ Notary Public

Dated: 10/05/2006

MASLON EDELMAN BORMAN & BRAND, LLP

_________/s/ Kirk O. Kolbo______________________________ David F. Herr, #44441 Kirk O. Kolbo, #151129 3300 Norwest Center 90 South Seventh Street Minneapolis, MN 55402 612/672-8200
Michael E. Rosman CENTER FOR INDIVIDUAL RIGHTS 1233 20th Street, NW Suite 300 Washington, DC 20036 202/833-8400
ATTORNEYS FOR PLAINTIFFS

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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 10 of 11

ON BEHALF OF DEFENDANTS: Dated: __12/4/2006_______________ BUTZEL LONG, PC

165576

____/s/ Leonard M. Niehoff__________________ Philip J. Kessler (P15921) Leonard M. Niehoff (P36695) 350 South Main Street, Suite 300 Ann Arbor, MI 48104 (734) 995-3110
ATTORNEYS FOR DEFENDANTS

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Case 2:97-cv-75231-PJD Document 285 Filed 01/31/2007 Page 11 of 11

LEGAL NOTICE

TO: Those individuals who applied for and were not granted adm ission to the College of Literature, Science, and the Arts (LSA) of the University of Michigan (UM) for the academic years between 1995 and 2003:

This is a notice of dism issal of a class action lawsuit and termination of the class in that suit.

The lawsuit, Gratz v. Bollinger , Civil Action No. 97-75231, was filed in the United States District Court for the East ern District of Michigan. The lawsuit challenged LSA admissions policies in place for the 1995 academ ic year forward insofar as they allowed for the consider ation of race and e thnicity. Although the plaintiffs filed a m otion to certify a class as to both dam ages and injunctive and declaratory relief, the Di strict Court certified the class only as to injunctive and declaratory relief, with plaintiff Patrick Hamacher as the class representative. The court declined to consider dam ages claims during the first phase of the suit, and therefore did not certify a class for damages relief.

In June 2003 the Supreme Court upheld the consideration of race and ethnicity i n university admissions, while a lso concluding that the LSA policies in use from 1995 until 2003 did not consider race and ethnicity in a perm issible manner. On remand, the District Cour t held that an applicant who wished to pursue a claim would have to prove that the policies’ unconstitutional consideration of race and ethnicity was a “substantial” or “m otivating” factor in t he denial of his/her particular application and that this denial resulted in harm to him/her.

The parties decided to settle the rem aining claims, and accordingly, plaintiffs did not continue to pursue certification of a class for damages relief. On [insert date], the court therefore terminated the certified class and ordered dismissal of the case. Individuals who appl ied for adm ission during the years 1995-2003 and who believe that they (a) were rejected because of the University’s unlawf ul use of race and (b) suffered dam ages as a resul t may wi sh to consult an attorney to determine if they should fi le a lawsuit, as the claim s will become time-barred if not brought within the time period provided by law.

Pleadings and other public records in this suit m ay be examined and copied at the

Office of the Clerk, United States District Court, Eastern District of Michigan,

Southern Division, 231 West Lafayette Blvd., Detroit, MI 48226 or downloaded

through the PACER service. For inform

ation about PACER see

http://pacer.psc.uscourts.gov.

11

 
 2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 1 of 9 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

JENNIFER GRATZ and PATRICK HAMACHER,
for themselves and all others similarly situated,
Plaintiffs,
v.
LEE BOLLINGER, JAMES J. DUDERSTADT, THE UNIVERSITY OF MICHIGAN, and THE UNIVERSITY OF MICHIGAN COLLEGE OF LITERATURE, ARTS, AND SCIENCE,
Defendants.

97~,?5231
Civil Action #

;,-.
:;;:o CLASS ACTION

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Nature of the Action

1. This is a class action brought for violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment to the United States Constitution, and for racial discrimination in violation of 42 U.S.C. §§ 1981, 1983 and 2000d et seq. Plaintiffs seek declaratory and injunctive relief and compensatory and punitive damages in an amount to be proven at trial.

Jurisdiction and Venue

2. This Court has jurisdiction of the action under 28 U.S.C. §§ 1331 and 1343. This action arises under the Fourteenth Amendment to the United States Constitution, and under federal

2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 2 of 9 Pg ID 2
·.. ·'
laws, 42 U.S.C. §§ 1981, 1983, and 2000d et seq.
3. Venue in this Court is proper under 28 U.S.C. § 1391 and this Court has personal jurisdiction over the defendants in this matter because the events giving rise to this claim occurred, and will occur, in this district.
Plaintiffs
4. Jennifer Gratz is, and at all times relevant to this litigation was, a resident of the State of Michigan. Gratz applied in 1994 for admission to the University of Michigan College of Literature, Science & Arts (the "LSA College") in Ann Arbor as an undergraduate beginning in the academic year 1995-96. In January 1995, the LSA College placed her on a "wait list" for admission. In April 1995, she was apprised that her application had been rejected. She has attended University of Michigan at Dearborn instead.
5. Patrick Hamacher is, and at all times relevant to this litigation was, a resident of the State of Michigan. Hamacher applied for admission to the LSA College as an undergraduate in 1996. By letter dated November 19, 1996, the LSA College informed him that he had been placed on a "wait list" for admission. Sometime in the spring of 1997, he was apprised that his application had been rejected. He has attended Michigan State University instead, but would transfer to the LSA College if offered an opportunity. He intends to apply to transfer if
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2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 3 of 9 Pg ID 3
the discriminatory admissions system described herein is eliminated.
Defendants
6. The University of Michigan is a public educational institution in the State of Michigan. The LSA College is a school under the supervisory authority of the University of Michigan.
7. James Duderstadt was the President of the University of Michigan during the time that Gratz's application was under consideration. He was, at that time, the individual ultimately responsible for the admissions policies described below. He is being sued in his individual capacity.
8. On or around February 1, 1997, Lee Bollinger became the President of the University of Michigan, and was President at the time that Hamacher's application was rejected. He was, at that time, the individual ultimately responsible for the admissions policies described below. He is being sued in both his individual and official capacities. Unless enjoined, he will continue to approve of, and implement, an admissions system substantially the same as the system described below.
Class Action Allegations
9. Gratz and Hamacher bring this class action pursuant to Rules 23 (a), 23 (b), and 23 (c) (4) (A) of the Federal Rules of Civil
3

2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 4 of 9 Pg ID 4
• . I
Procedure on behalf of a class consisting of all students who:
• applied for and were not granted admission to the LSA College for all academic years since 1995-96 through the entry of a judgment in this action; and
• were members of those racial or ethnic groups, including Caucasian, that defendants treated less favorably in considering their applications for admission to the LSA College.
10. Plaintiffs seek to maintain this class, pursuant to Rules 23(b) and 23(c) (4), on the issues of whether defendants engaged in unlawful discrimination and whether defendants should be enjoined from continuing their discriminatory policies.
11. The Class is so numerous that joinder of all its members is impracticable. Defendants receive thousands of applications for admission each year for the LSA College. Plaintiffs do not know addresses or the precise number of rejected applicants, but can ascertain this information from the defendants' records.
12. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are whether defendants violated the Fourteenth Amendment to the United States Constitution, and federal laws, 42 U.S.C. §§ 1981, 1983, and
4

...

•• i

2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 5 of 9 Pg ID 5

2000d et seq., by discriminating and by conspiring to discriminate against certain applicants on the basis of race, and whether they will continue to do so.
13. Plaintiffs' claims are typical of the claims of the members of the Class, and they are adequate representatives of the Class. Plaintiffs and members of the Class have sustained damages because of defendants' unlawful activities alleged herein. Plaintiffs have retained counsel competent and experienced in race discrimination litigation and intend to prosecute this action vigorously. Plaintiffs will fairly and adequately protect the interests of the Class.
14. A class action is superior to other available means for the fair and efficient adjudication of the controversy.
Facts
15. The University of Michigan is a State-run university which also receives federal funds. The LSA College is an educational unit part of, operated by, and responsible to, the University of Michigan. It also receives federal funds.
16. The LSA Admissions Form asks each applicant to disclose his or her race.
17. Each of the plaintiffs identified his or her race by checking the box next to "white."
18. Defendants used the race information provided by
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2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 6 of 9 Pg ID 6
plaintiffs and other applicants to determine who would be admitted to the LSA College.
19. Defendants used different admissions standards based on each student's self-identified race. As a result, students from favored racial groups had a significantly greater chance of admission than students with similar credentials from disfavored racial groups.
20. Applicants from disfavored racial groups were not compared directly to applicants from favored racial groups.
21. Plaintiffs, categorized as white, were not among the favored racial groups that benefitted from less stringent admissions standards.
22. Defendants did not merely use race as a "plus" factor or as one of many factors to attain a diverse student body. Rather, race was one of the predominant factors (along with scores on standardized admissions tests and high school grades) used for determining admission.
23. Defendants had no compelling interest to justify their use of race in the admissions process, and were not motivated by either an interest in educational diversity or by a desire to remedy the present effects of any past discrimination.
24. Assuming arguendo that defendants had a compelling interest for which they used race in their admissions criteria,
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2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 7 of 9 Pg ID 7
defendants did not consider, and never employed, any race neutral alternative to achieve that interest.
25. As a result of defendants' racially discriminatory procedures and practices, plaintiffs' applications were rejected. Each of the plaintiffs suffered humiliation, emotional distress, and pain and suffering as a consequence of his or her application being rejected. Each of the plaintiffs also suffered humiliation, emotional distress, and pain and suffering upon learning that defendants had discriminated against him or her on the basis of race.
26. As a result of defendants' discrimination, Gratz and Hamacher were forced to attend undergraduate institutions that were either less prestigious or more expensive (or both) resulting in higher educational costs and lower future earnings.
27. If not enjoined, the University of Michigan, the LSA College, and Bollinger will continue to use race in selecting students for the LSA College.
FIRST CLAIM
28. Plaintiffs repeat and reallege the allegations and averments of paragraphs 1-27 as if fully set forth herein.
29. Bollinger and Duderstadt acted under color of law to deny plaintiffs equal protection of the laws, and to discriminate on the basis of race, in violation of 42 U.S.C. §§ 1981 and 1983.
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2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 8 of 9 Pg ID 8
30. Bollinger and Duderstadt violated plaintiffs' clear and well-established Constitutional right to receive the same consideration for admissions as applicants of other races.
SECOND CLAIM
31. Plaintiffs repeat and reallege the allegations and averments of paragraphs 1-30 as if fully set forth herein.
32. The University of Michigan and the LSA College are recipients of federal funds. They discriminated against plaintiffs on the basis of their race, color, and/or ethnicity in violation of 42 U.S.C. § 2000d et seq.
RELIEF
WHEREFORE, plaintiffs demand judgment:
A. Awarding them compensatory and punitive damages in an amount to be proven at trial;
B. Declaring that defendants violated their rights to nondiscriminatory treatment under the Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and 2000d et seq.;
C. Enjoining defendants from continuing to discriminate on the basis of race in violation of the Fourteenth Amendment;
D. Requiring the LSA College to offer Hamacher
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2:97-cv-75231-PJD Doc # 1 Filed 10/14/97 Pg 9 of 9 Pg ID 9
admission as a transfer student;
E. Awarding attorneys' fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable authority; and
F. Awarding any other relief that is appropriate and just.
Respectfully submitted,
Wright, Esq. (State Ba No. 54052) 37781 Hollyhead Farmington Hills, MI 48331 David F. Herr, Esq. Kirk Kolbo, Esq. (pro hac vice application
forthcoming) Maslon, Edelman, Borman &
Brand 2300 Northwest Center 90 S. 11th St. Minneapolis, MN 55402-4140 Michael E. Rosman, Esq. Michael P. McDonald, Esq. Hans F. Bader, Esq. (pro hac vice applications
forthcoming) CENTER FOR INDIVIDUAL RIGHTS 1233 20th Street, NW,
Suite 300 Washington, D.C. 20036 (202) 833-8400
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 2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 1 of 13 Pg ID 262

JENNIFER GRATZ and PATRICK HAMACHER,

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION
-,

CASE NO__ 97-CV-75'231- T

HON, PAT

I-

AN

Plaintiffs,
V,

LEE BOLLINGER, JAMES J. DUDERSTADT, THE UNIVERSITY OF MICHIGAN, and THE UNIVERSITY OF MICHIGAN COLLEGE OF LITERATURE, ARTS, AND SCIENCE,

Defendants, and,

EBONY PATTERSON, RUBEN

MARTINEZ, LAURENT CRENSHAW,

KARLA R WILLIAMS, LARRY

BROWN, TIFFANY HALL, KRISTEN

M.J. HARRIS, MICHAEL SMITH,

KHYLA CRAINE, NYAH

~. .n

CARMICHAEL, SHANNA DUBOSE,

EBONY DAVIS, NICOLE BREWER,

KARLA HARLIN, BRIAN HARRIS,

KATRINA GIPSON, CANDACE B.N.

REYNOLDS, by and through their parents

or guardians, DENISE PATTERSON,

MOISES MARTINEZ, LARRY

CRENSHAW, HARRY J. WILLIAMS,

PATRICIA SWAN-BROWN, KAREN A.

MCDONALD, LINDA A. HARRIS,

DEANNA A. SMITH, ALICE BRENNAN,

IVY RENE CARMICHAEL, SARAH L.

DUBOSE, INGER DAVIS, BARBARA

DAWSON, ROY D. HARLIN, WYATT G.

HARRIS, GEORGE C. GIPSON, SHAWN

R REYNOLDS, and CITIZENS FOR

AFFIRMATIVE ACTION'S

PRESERVATION,

Proposed Defendant-Intervenors.
--------------------------~/

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 2 of 13 Pg ID 263

OPINION AND ORDER DENYING PROPOSED INTERVENORS' MOTION FOR RECONSIDERATION

At a session of said Court, held in the U.S.

ofOCT " District Courthouse, City of Detroit, County

1 :998

Wayne, State of Michigan, on

l . t.

PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT ruDGE

This matter is currently before the Court on proposed intervenors' motion for reconsideration

of this Court's July 7, 1998 opinion and order in which the Court denied proposed intervenors'

motion to intervene as of right pursuant to FED. R. Crv. P. 24(a)(2), or in the alternative, for

permissive intervention pursuant to FED. R. Crv. P. 24(b)(2). Proposed intervenors, seventeen

African-American and Latino individuals, all of whom intend to seek admission to the University

of Michigan ("University") and Citizens for Affirmative Action's Preservation ("CAAP"), sought

to intervene in a lawsuit challenging the constitutionality of the University's present admissions

policy.' In support of their motion, proposed intervenors contend that the Court's opinion:

relegates to the sidelines the only people who will be fundamentally and irrevocably affected by the decision in this case. This result is plainly inconsistent with Sixth Circuit and Supreme Court law, and, more fundamentally, fails to take account ofthe broader social importance of the issues in this case.

(Mot. Rec. at I). On a more specific note, proposed intervenors argue that the opinion is deficient

in that the Court:

(1) failed to consider, in determining whether Proposed Intervenors had a legal interest in this suit, the practical effect on African Americans and Latinos ofa ruling

'The lawsuit is premised upon plaintiffs' claim that the University's admissions policy impermissibly utilizes race as a factor in determining admissions in violation of 42 U.S. C. §§ 1981 and 1983, and in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
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2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 3 of 13 Pg ID 264
abolishing affirmative action at the University of Michigan; (2) misread Proposed Intervenors' interest in this lawsuit as involving a legal right to race-conscious admission programs rather than an interest in ensuring their legality; (3) failed to adhere to the dictates of Sixth Circuit and Supreme Court law regarding the minimal standard necessary for showing inadequacy; and, (4) did not consider, in evaluating inadequacy of representation, the specific arguments and evidence that Proposed Intervenors would introduce to show the practical and legal necessity for affirmative action at the University of Michigan.
(Mot. Rec. at 2). To the aforementioned perceived deficiencies in the Court's opinion, plaintiffs have
elected not to respond and instead rely upon their previously filed motion in opposition to proposed intervenors' motion to intervene.2
E.D. MICH. L.R. 7.1(h)(3) provides:3
(3) Grounds. Generally, and without restricting the discretion of the Court, motions for rehearing or reconsideration which merely present the same issues ruled upon by the Court, either expressly or by reasonable implication, shall not be granted. The movant shall not only demonstrate a palpable defect by which the Court and the parties have been misled but also show that a different disposition of the case must result from a correction thereof.
Therefore, in order for proposed intervenors to succeed on a motion for reconsideration, they must
not only identify a "palpable defect" in the Court's opinion, but they must ultimately show that a
different disposition of the case would result from the Court's cognizance of such a defect. For the
following reasons, the Court does not believe that an application of the standard set forth in
L.R. 7.1 (h)(3) to the arguments advanced by proposed intervenors, necessitates a different disposition
of proposed intervenors' motion to intervene.
2Letter from Kirk 0. Kolbo, Esq. to The Honorable Patrick J. Duggan, 8/5/98 at 1. 30n September 8, 1998, minor changes were made to this rule, and its designation was changed to L.R. 7.1(g)(3).
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2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 4 of 13 Pg ID 265
As the proposed intervenors' first two arguments essentially address the Court's finding that proposed intervenors lack a substantial legal interest in the subject matter of the litigation, the Court will address these claims together. Proposed intervenors contend that the implication ofthe Court's decision to deny intervention is a "devastating effect" on African American and Latino admissions to the University of Michigan. Proposed intervenors then commence with citation from a litany of sources ofstatistical data in support ofthe proposition that minority enrollment will suffer ifplaintiffs are successful in obtaining a ruling that the University's present admissions policy is unconstitutional. In addition, proposed intervenors contend that the Sixth Circuit does not require the proposed intervenors to demonstrate a "legal right" to the University's voluntarily enacted admissions policy. Instead, proposed intervenors argue that the standard is satisfied where they identity "a legally significant interest in preserving the University's option to adopt and maintain such a program." (Mot. Rec. at 7).
The Court notes that proposed intervenors advanced similar arguments in support of their original motion to intervene as of right, and for permissive intervention. In its opinion, the Court held, "proposed intervenors do not have the same 'significantly protectable' interest because proposed intervenors do not have any legally enforceable right to have the existing admissions policy continued." Gratz v. Bollinger, et. al., No. 97-CV-75231, slip op. at 9 (E.D. Mich. July 7, 1998). In support of its position, the Court noted that if defendants voluntarily ceased the administration ofthe present admissions policy, proposed intervenors could not claim the deprivation ofa legally protected interest. Proposed intervenors now assert that if the University were to cease application of the current program, "proposed intervenors would have a legal claim that the program violates Title VI." (Mot. Rec. at 7).
4

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 5 of 13 Pg ID 266
The Court does not agree. Presumably, proposed intervenors' reference to "Title VI" is intended to refer to Title VI of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000d, which provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Initially, the Court would point out that proposed intervenors' argument is premature in the sense that if the University's present policy is deemed unconstitutional, only then will the University have to determine the criteria upon which it will predicate a new policy. The Court is unable to discern how proposed intervenors can claim that some future policy of the University will violate Title VI when they do not have any idea what the terms and provisions of the new policy will contain. Therefore, proposed intervenors cannot, in this Court's opinion, claim a substantial legal interest in the present lawsuit on account ofa hypothetical claim that some future policy ofthe University may violate Title VI. Proposed intervenors next assert that an interest "in preserving the University's option to adopt and maintain" an affirmative action program is sufficient to establish a "legally significant interest." In support of this proposition, proposed intervenors rely on the Sixth Circuit's decision in Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997), the Eleventh Circuit's decision in Meek v. Metropolitan Dade Cty., 985 F.2d 1471 (lith Cir. 1993), and this Court's decision in Citizensfor Legislative Choice v. Miller, No. 97-CV-73777-DT (E.D. Mich. Oct. 15, 1997). Proposed intervenors claim that the interests advanced by them in the affirmative action program under consideration in the instant case mirror those interests which the courts have previously found
5

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 6 of 13 Pg ID 267
sufficient in Michigan, supra, Meek, supra, and Citizens, supra. The Court finds proposed intervenors' reliance on these cases unavailing for the following reasons.
The Sixth Circuit in Miller permitted the Michigan Chamber of Commerce to intervene in a lawsuit challenging the constitutionality oflegislation regulating campaign contributions from labor union members. In deciding to sanction intervention, the court was persuaded by the Chamber's status as:
(I) a vital participant in the political process that resulted in legislative adoption ofthe 1994 amendments ... , (2) a repeat player in Campaign Finance Act litigation, (3) a significant party which is adverse to the challenging union in the political process surrounding Michigan state government's regulation ofpractical campaign financing, and (4) an entity also regulated by at least three of the four statutory provisions challenged by plaintiffs. Miller, 103 F.3d at 1240. The Chamber's "substantial legal interest" in that litigation derived from its active participation in the political process that led to the adoption of the amendment and the fact that it is an entity regulated by some of the statutory provisions contained in the amendment. In the case at bar, proposed intervenors consist of African-American and Latino students and CAAP, an organization premised upon supporting diversity in higher education. While these groups share an interest in preserving race as an admissions preference, their interest is not analogous to the Chamber of Commerce's interest in Miller. The Court does not believe that the process leading up to the University's decision to enact an affirmative action program in its admissions guidelines is akin to the legislative process through which new legislation is enacted. The legislative process is distinct in that those individuals who campaign for or against a particular piece of legislation ultimately face the prospect of governance under it following enaction. If the University declined to continue its
6

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 7 of 13 Pg ID 268
present policy, proposed intervenors would not be foreclosed from admissions to the University, nor would they face any heightened criteria.
The decisions in Meek, supra, and Citizens, supra, similarly involved litigation in which legislative enactments were under challenge and the individuals seeking to intervene were affected by the legislation's passage. In Meek, four individuals sought to intervene in a challenge to Dade County's electoral system for county commissioners. The Eleventh Circuit, in determining the intervenors had a substantial legal interest, concluded "intervenors sought to vindicate important personal interests in maintaining the election system that governed their exercise ofpolitical power, a democratically established system that the district court's order had altered." Meek, 985 F.2d at 1480. On a related issue, this Court in Citizens permitted an organization, active in placing a term limits proposal on the ballot and promoting its passage, to intervene in legislation challenging its constitutional validity. See Citizens, slip op. at 4 ("Because these proposed intervenors were active in the adoption of§ 54, the Court concludes that they have a sufficient legal interest to intervene in this action.") In contrast, the Court declined to allow U.S. Term Limits' to intervene in Citizens and rejected that organization's stance that its "support[] [for] local term limits initiatives nationwide" and its "litiga[tion] [of] the constitutionality of term limit legislation in other courts" constituted an interest sufficient to entitle it to intervene as ofright. !d. The Court opined that "[b]ecause U.S. Term Limits only has a generalized interest on the topic of term limits.... " Citizens, slip op. at 4, it did not possess a "substantial legal interest" in the subject matter of the litigation. In sum, the Court believes that an individual's or an organization's interest in vindicating legislation through the
4U.S. Term Limits is a non-profit organization that has been involved in state and local campaigns for term limit legislation across the country.
7

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 8 of 13 Pg ID 269
legislative process is markedly different from proposed intervenors' interest in continuing the University's gratuitously enacted affirmative action program.
Moreover, as previously stated, the Court continues to believe that while the proposed intervenors argue that elimination or modification ofthe present policy may adversely affect minority interests, proposed intervenors simply do not have a "right" to have those policies continued by the University. In reaching this decision, the Court afforded great deference to the Sixth Circuit's opinion in Jansen v. City ofCincinnati, 904 F.2d 336 (6th Cir. 1990) in which the Sixth Circuit found that a class ofAfrican-American applicants and African-American employees ofthe Division ofFire ofthe City of Cincinnati had a substantial legal interest in a lawsuit challenging the validity of a consent decree establishing an affirmative action program governing hiring and promotion decisions. Specifically, the Sixth Circuit held, "as parties to the consent decree, the proposed intervenors have a significant legal interest in its interpretation." Jansen, 904 F.2d at 342. In permitting intervention in Jansen, the Sixth Circuit commented at length about the nature of proposed intervenors' interest in the consent decree:
The consent decree governs hiring and promotion decisions in the Division ofFire by setting goals for minority hiring and timetables for achieving racial integration. At stake in this litigation is the proposed intervenors' interest in continuing affirmative action under the consent decree.... The subject matter of the litigation requires an interpretation of the consent decree negotiated by proposed intervenors and the City when they were in the midst of an adversarial relationship. !d. In contrast to the proposed intervenors in the case sub judice, the proposed intervenors in Jansen had actively participated in the negotiation and implementation of the consent decree. The existence of the affirmative action program under consideration in Jansen was predicated upon the parties' entry into a consent decree. The Sixth Circuit explicitly stated in its holding that the proposed
8

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 9 of 13 Pg ID 270
intervenors' substantial interest emanated from the proposed intervenors' status as parties to a consent decree. Jansen, 904 F.2d at 342. In the instant case, while proposed intervenors' claim an "interest" in maintaining the status quo of the University's present admissions policy, such a generalized interest in a voluntarily enacted policy, without more, is simply insufficient to support a finding of a "substantial legal interest" necessary to entitle one to intervention of right.
Proposed intervenors next assert entitlement to reconsideration on the grounds that the Court held them to an inappropriately heightened standard with respect to adequacy of representation of proposed intervenors' interest by defendants. Specifically, proposed intervenors claim that the Court's decision "subjects Proposed Intervenors to a higher burden of showing inadequacy than is required by Sixth Circuit and Supreme Court law." (Mot. Rec. at 8). In support, proposed intervenors propound that the Court inappropriately relies on Hopwood v. State ofTexas, 21 F.3d 603, 605 (5th Cir. 1994) which proposed intervenors assert "conflicts with Sixth Circuit law on the applicability of the Trbovich' standard in cases involving government agencies." Id Further, the proposed intervenors again assert that the University will not make all of the necessary arguments in support of the continued utilization of race as a factor in admissions. Proposed intervenors also espouse that the University will not "present evidence that race and ethnicity should be considered as a factor in order to mitigate the discriminatory effects of its own admissions practices ... " nor do proposed intervenors believe that defendants will provide "evidence on the need for affirmative action to mitigate racial and ethnic bias in standardized tests, and the limitations of these tests in predicting
'The Supreme Court in Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. I 0, 92 S. Ct. 630, 636 n. 10, 30 L. Ed. 2d 686 (1972) held "[t]he requirement of the Rule is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal. ..." The Court believes that the standard set forth by the Sixth Circuit in Miller, and applied by the Court in its opinion, is in accord with the standard set forth by the Supreme Court in Trbovich.
9

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 10 of 13 Pg ID 271
future performance ofstudents." (Mot. Rec. at I 0). In sum, proposed intervenors argue that the Court held them to an inappropriately heightened standard in assessing the adequacy of representation and failed to consider those arguments which the University may not assert in defense of its present admissions policy.
At the outset, the Court notes that proposed intervenors misapprehend the Court's application of the appropriate standard to the adequacy of representation prong of the intervention analysis. In summing up plaintiffs' argument with respect to the adequacy of representation, the Court noted plaintiffs' citation to the Hopwood decision and their advocacy of the heightened standard on which the Fifth Circuit relied in denying intervention to the student interest groups in that case. However, the Court, in the next paragraph following the summation of plaintiffs' argument, cited to the Sixth Circuit's decisions in Jansen and Miller for the appropriate standard applicable to requests for intervention in the Sixth Circuit and explicitly acknowledged the "minimal nature of proposed intervenors' burden at this stage...." Gratz, slip op. at II. In the opinion, the Court noted that it "finds the Fifth Circuit's reasoning in Hopwood persuasive in that the Court does not believe in the instant case that the proposed intervenors have sufficiently articulated the existence ofa separate interest on which the defendants will not adequately represent them." Gratz, slip op. at 12 (emphasis added). The Court relied on the Hopwood decision to the limited extent that it similarly found deficiencies in proposed intervenors' ability in Hopwood to establish the existence of a separate defense which the University of Texas would not or could not assert. In addition, the Court cited the Hopwood decision for the proposition that proposed intervenors failed to assert a separate defense of the affirmative action plan that defendants had failed to assert. Gratz, slip op. at 13. Contrary to proposed intervenors' assertion in the motion for reconsideration, the Court plainly did not hold proposed intervenors to any heightened standard, applicable to a governmental entity, set forth by the
10

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 11 of 13 Pg ID 272
Fifth Circuit in Hopwood.6 In fact, conspicuously absent from the Court's opinion, is any reference,
outside of the summation of plaintiffs argument, to the heightened standard on which the Fifth Circuit relied in Hopwood. The Court, therefore, rejects proposed intervenors' argument that it held
proposed intervenors to a heightened showing on the adequacy of representation prong necessary to
entitle one to intervention of right. Moreover, proposed intervenors continue to fail to demonstrate any defense of the
University's admissions policy which the University will not assert on its behalf. While the proposed
intervenors argue that the University will confine the focus of its defense on what they characterize
as an interest in "promoting academic freedom," instead of"present[ing] evidence regarding the need
for race conscious programs to decrease racial inequality and promote the full inclusion of Latinos
and African-Americans," the Court does not believe that such "speculations" are sufficient to demonstrate the University's inability to adequate defend its programs. In the original opinion, the
Court expressed its belief that, "The University, having voluntarily enacted the affirmative action
policy in its admissions, has a strong interest in preserving the validity of its admissions program and
will vigorously defend the continued utilization of race as a factor in admissions." Gratz, slip op. at 12. Further, proposed intervenors have failed to "overcom[e] the presumption of adequacy of
6The Court specifically did not apply Hopwood's heightened standard to the instant case for the very reason identified by proposed intervenors in their motion for reconsideration. Not only did the Court's research fail to reveal the Sixth Circuit's countenance of any "heightened standard," applicable to challenged action on behalf of a government entity, but in the Hopwood decision the State ofTexas was a named defendant in the action whereas in the instant case, the State ofMichigan is not a party to the action. In contrast, however, the Court notes that the Fifth Circuit's articulation of a heightened standard for a governmental entity was applied by Judge Friedman in Gruffer v. Bollinger, No. 97-CV-75928-DT, slip op. at 6 (E.D. Mich. July 6, 1998) ("As the court noted in Hopwood, 'where the party whose representation is said to be inadequate is a governmental agency, a much stronger showing of inadequacy is required.' The proposed intervenors have made no showing of inadequacy of representation, to say nothing of the 'much stronger showing' required in this case.") (internal citations omitted).
11

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 12 of 13 Pg ID 273
representation that arises when the proposed intervenor and a party to the suit ... have the same ultimate objective." Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987) (quoting Wade v. Goldschmidt, 673 F.2d 182, 186 n. 7 (7th Cir. 1982) (per curiam)).' Plainly, the University, in enacting an admissions policy that considers race as a factor has among its objectives its continued utilization in not only creating a diverse student body, but in seeking to "equalize" those factors that may otherwise attribute a preference to a non-minority student. In this regard, the Court believes that the interests ofthe proposed intervenors in the maintenance ofthe affirmative action policy and those of the University in defending the policy converge. Accordingly, the Court believes that proposed intervenors have once again failed to meet their burden in establishing that defendants cannot adequately defend proposed intervenors' interest in the subject matter of this litigation.
Conclusion In sum, proposed intervenors have failed, in this Court's opinion, to establish a palpable defect in this Court's decision to deny proposed intervenors the opportunity to intervene in this litigation. Accordingly, the Court denies proposed intervenors' motion for reconsideration.
7In Bradley, two organizations and sixty individuals sought to intervene as of right in the advanced remedial stage of the desegregation of the Detroit public schools. The Sixth Circuit, in denying intervention of right, noted:
An applicant for intervention fails to meet his burden of demonstrating inadequate representation "when no collusion is shown between the representatives and an opposing party, when the representative does not have or represent an interest adverse to the proposed intervenor, and when the representative has not failed in the fulfillment of his duty." Bradley, 828 F.2d at 1192 (quoting Wade v. Goldschmidt, 673 F.2d 182, 186 n. 7 (7th Cir. 1982) (per curiam)). In the instant case, proposed intervenors have failed to make any showing of any collusive conduct on the part of defendants, nor have they shown that defendants have an interest adverse to proposed intervenors or failed in any manner to defend against the merits of plaintiffs' claims.
12

2:97-cv-75231-PJD Doc # 48 Filed 10/27/98 Pg 13 of 13 Pg ID 274 IT IS ORDERED that proposed intervenors' motion for reconsideration is hereby DENIED.
~~0j;~ ATRiCKi ANI
UNITED sTKIES DISTRICT mDGE Copies to: Kerry L. Morgan, Esq. Kirk Kolbo, Esq., David F. Herr, Esq. Michael E. Rosman, Esq., Michael P. McDonald, Esq., Hans F. Bader, Esq. John Payton, Esq., Jane Sherburne, Esq. Leonard M. Niehoff, Esq. Godfrey J. Dillard, Esq., Milton R. Henry, Esq.
13

 
 2:97-cv-75231-PJD Doc # 62 Filed 12/23/98 Pg 1 of 2 Pg ID 340

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ..-------~--···-··..;:·'-'::----.

JENNIFER GRATZ and PATRICK HAMACHER, for themselves and all others similarly situated,

CAS NO.: 97-CV-75231-DT HON. ATRICK J. DUGGAN

Plaintiffs, v.

LEE BOLLINGER, JAMES J. DUDERSTADT, THE UNIVERSITY OF MICHIGAN, and THE UNIVERSITY OF MICHIGAN COLLEGE OF LITERATURE, ARTS, AND SCIENCE,
Defendants.
--------------------------~/

0

r-r'l

c::.

C""i

~

' '..-.. •)

ORDER

.-,--,':?

At a session of said Court, held in the U.S.

'·-~

District Courthouse, City of Detroit, County of

Wayne, State of Michigan, on

DEC 2 3 1998

PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE

For the reasons set forth in an Opinion issued this date,

IT IS ORDERED, ADJUDGED, and DECREED that defendants' motion for an order

denying class certification is DENIED;

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that plaintiffs' motion for

class certification is GRANTED as follows:

Pursuant to Fed. R. Civ. P. 23(b)(2), the Court certifies the following class, represented by

Patrick Hamacher, on the issue of liability:

2:97-cv-75231-PJD Doc # 62 Filed 12/23/98 Pg 2 of 2 Pg ID 341
Those individuals who applied for and were not granted admission to the College of Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat less favorably on the basis of race in considering their application for admission. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that plaintiffs' motion to bifurcate the trial into a liability and damage phase is GRANTED.
{hdR4tfVJt~
PTRlCKiUGGAN I
UNITED STATES DISTRICT JUDGE Copies to: Kirk 0. Kolbo, Esq. Kerry L. Morgan, Esq. Michael E. Rosman, Esq. John Payton, Esq. Leonard M. Niehoff, Esq.
2

 
 2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 1 of 9 Pg ID 549

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JENNIFER ORATZ and PATRICK HAMACHER,
Plaintiffs, v.
LEE BOLLINGER, JAMES J. DUDERSTADT, THE UNIVERSITY OF MICHIGAN, and THE UNIVERSITY OF MICHIGAN COLLEGE OF LITERATURE, ARTS, AND SCIENCE,
Defendants.
_____________________________ !

:--_)
,·-)
::·~: '.:_~:

OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR RELIEF FROM ORDER

At a session of said Court, held in the U.S.

District Courthouse, City of Detroit,

County ofWMneYState of Michigan,

on

A 0 l ZOO~ ·

PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE

On October 14, 1997, plaintiffs filed a class action against defendants asserting that

defendants had denied plaintiffs equal protection of the laws and engaged in racial discrimination

in violation of 42 U.S.C. § 1983 by considering race as a factor in their admissions policy. Plaintiffs

seek injunctive, declaratory, and monetary relief.

On December 23, 1998, this Court issued an Opinion and Order bifurcating the trial into a

liability and damages phase, stating that "[i]fthe Court enters a finding that defendants' admissions

I

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 2 of 9 Pg ID 550
policy is unconstitutional, the Court will then make a determination as to how to proceed with the damage phase of the trial." (Dec. 23, 1998 Op. at 16). In the same opinion, the Court certified a class, to be represented by Mr. Hamacher, pursuant to Federal Rule of Civil Procedure 23(b)(2)1 solely on the issue of declaratory and injunctive relief, i.e., "whether defendants' use ofrace as a factor in admissions decisions violates the Equal Protection Clause ofthe Fourteenth amendment,"' consisting of:
Those individuals who applied for and were not granted admission to the College of Literature, Science & the Arts ofthe University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian that defendants treated less favorably on the basis ofrace in considering their application for admission. (!d. at 15). The class was specifically "limited to injunctive and declaratory relief." (!d.). The Court also expressly stated that it would not consider any claims for damages during this phase ofthe trial and declined to rule regarding class certification for the damages phase until after liability had been determined. (!d.). This matter is now before the Court on defendants' "Motion for Relieffrom Order Regarding Class Certification and Bifurcation in Light of Subsequent Authority." Defendants specifically request relief from those portions ofthe Court's December 13, 1998 Opinion and Order providing: "(I) that the constitutionality of the defendants' admissions policies be determined without regard to whether any particular plaintiff would have been admitted under an admissions system that did
1 Rule 23(b)(2) permits certification of a class action when "the party opposing the class has acted or refused to act on grounds that are generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." FED. R. CJV. P. 23(b)(2).
2 The Court labeled this as the "liability" phase of the litigation. 2

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 3 of 9 Pg ID 551
not consider race as a factor in admissions; and (2) that this case be certified as a class action." (Defs.' Br. Supp. Mot. Relief Order at 1). For the following reasons, defendants' motion shall be denied.
Discussion I. Bifurcation Order
Defendants do not per se object to bifurcation of this action into a liability and damages phase. (!d. at 3). Defendants, however, relying upon the United States Supreme Court's recent decision in Texas v. LeSage,-- U.S.--, 120 S. Ct. 467, 145 L. Ed. 2d 347 (1999), contend that "an applicant who would not have been admitted under a race neutral admissions decision lacks standing to sue for damages." (!d. at 5). According to defendants, under LeSage, they would be entitled to a judgment in their favor during the liability phase of the trial if they were to demonstrate that the individual plaintiffs "(1) do not intend to apply to the University of Michigan in the future; and (2) would not have been admitted at the time they applied under an admissions system that did not involve the consideration ofrace." 3 (!d.). Therefore, based upon their understanding of LeSage, defendants request that this Court "vacate its determination that the question of liability is limited to the issue 'whether defendants' use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution."' (!d.).
The Supreme Court's decision in LeSage, however, did not turn upon the distinction between the liability and damages phases of an action, but rather between the type of relief requested, i.e.,
3 Defendants acknowledge that they "have not decided whether to advance such an argument, and in any event cannot say whether the intervening defendants may elect to defend the lawsuit on this basis." (!d. at 5).
3

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 4 of 9 Pg ID 552
whether the plaintiffis asserting "a retrospective claim for damages [or] a forward-looking claim for injunctive reliefbased on continuing discrimination." LeSage, 120 S. Ct. at 469. If the plaintiff is asserting a retrospective claim for compensatory damages, a defendant may defeat its liability for such damages "by proving that it would have made the same decision without the impermissible motive." I d. at 468. However, "a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered." Jd. Rather, "[t]he relevant inquiry in such cases is 'the inability to compete on equal footing."' Id. (quoting Northeastern Fla. Chapter, Ass 'n. Gen. Contractors ofAm. v. Jacksonville, 580 U.S. 656, 666, 113 S. Ct. 2297,2303, 124 L. Ed. 2d 586 (1993)).
The "liability" phase of this action, which has been identified as "whether defendants' use ofrace as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution," has been specifically limited to plaintiffs' claims for injunctive and declaratory relief. (Dec. 23, 1998 Op. at 15). As such, the relevant inquiry under LeSage is not whether any individual plaintiffmay have been denied admission regardless ofdefendants' allegedly impermissible motive, but rather, whether plaintiffs have been denied the inability to compete for admission on equal footing. Therefore, the Court declines to vacate that portion of its December 23, 1998 Opinion and Order that certifies for class determination the sole issue of whether defendants' use of race as a factor in admission decisions violates the Constitution and reiterates that whether a particular plaintiff would, in fact, have been admitted under an admissions system that did not consider race is irrelevant to such an inquiry.
The Court, and the parties, recognize that the "damages" phase of this lawsuit, for which the 4

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 5 of 9 Pg ID 553
Court has not as of yet certified a class, also includes a "liability" factor. The "damages" phase, however, relates to defendants' ultimate "liability" for damages vis a vis each individual plaintiff. For example, for a particular plaintiff to establish his or her entitlement to compensatory damages, such plaintiff must establish not only that defendant employed an unconstitutional policy, but also that such unconstitutional policy was a "proximate cause" of harm to such plaintiff. In other words, defendants are not "liable" to a particular individual for compensatory damages if defendants establish that they would have denied admission to that plaintiff irrespective of the challenged policy. See LeSage, 120 S. Ct. at 468.
The Court notes that, consistent with LeSage, there is nothing currently barring defendants from arguing as a defense to their "liability" for compensatory damages with respect to a particular plaintiff during the "damages" phase of this action that they would have made the same decision regardless ofthe allegedly impermissible motive, or that class certification should be denied for the "damages" phase with respect to compensatory damages because such a defense would necessarily involve a very individualized inquiry. Accordingly, the Court is satisfied that its December 23, 1998 Order regarding bifurcation does not run afoul of the Supreme Court's decision in LeSage. 2. Class Certification
Defendants also seek relief from this Court's Order granting class certification for the liability phase arguing (I) that under the holding of LeSage, many of the purported class members are not entitled to any relief, and (2) that the United States Supreme Court's recent decision in Ortiz v. Fibreboard, 527 U.S. 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715 (1999), "make[s] clear that insofar as this lawsuit also seeks damages (in addition to injunctive relief), a mandatory class action (such as is provided by Rule 23(b)(2)) that does not provide class members with notice ofthe litigation and
5

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 6 of 9 Pg ID 554
the opportunity to opt out is violative of those absent class members' due process rights." (Defs.' Br. Supp. Mot. Relief Order at 6-7) (emphasis in original). Defendants' arguments, however, are without merit.
First, defendants contend that under LeSage, many of the purported class members are not entitled to relief because they "(1) applied in the past; (2) would not have been admitted under an admissions system that did not involve the consideration of race as a factor; and (3) [do] not intend to apply in the future." (Id. at 6). As discussed supra, defendants' contentions would have merit if the liability phase of this action were addressing plaintiffs' claims for compensatory damages. However, the liability phase of this action has been identified as "whether defendants' use ofrace as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution," and specifically limited to plaintiffs' claims for injunctive and declaratory relief; therefore, the only relevant inquiry is whether defendants' alleged discriminatory policy denies plaintiffs' the ability to compete on equal footing. LeSage, 120 S. Ct. at 468.
Second, defendants argue that a mandatory class action pursuant to Rule 23(b)(2) 1s inappropriate because class members are not provided with notice or an opportunity to opt out.' In support of their argument, defendants' erroneously contend that "every member of the class-- and there are thousands - - is now having his or her individual claim for money damages tried to this Court." (Defs.' Br. Supp. Mot. Relief Order at 7). As noted supra, however, only plaintiffs' claims for injunctive and declaratory relief are being addressed during the "liability" phase ofthis action. Therefore, the class members' claims for damages are not currently before the Court. In fact, in its
4 Notice and an opportunity to opt out are only required in Rule 23(b)(3) class actions. See FED. R. CJV. P. 23(c)(2); Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894, 896 (7th Cir. 1999).
6

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 7 of 9 Pg ID 555
December 23, 1998 Opinion and Order, the Court specifically declined to rule regarding class certification for the damages phase of this action. (Dec. 23, 1998 Op. at 15).
Defendants contend that the mere fact that the Court declined to certify a class for the damages phase of this action "does not protect the rights of unnamed class members" because "[i]n the event defendants prevail on the question ofliabi1ity, the unnamed class members would find their claims - - including their claims for monetary damages - - barred by virtue of the class action determination on the question of liability." (Defs.' Br. Supp. Mot. Relief Order at 9-10). Such an assertion, however, is true in every class action involving injunctive relief regardless of whether the action is bifurcated into a liability and damages phase or proceeds as a single action. If the Court were to accept defendants' argument, it would be inappropriate to certify a Rule 23(b)(2) class whenever damages are sought, regardless ofwhether such damages were incidental to the injunctive relief requested.
The Court agrees with defendants' contention that any class action that includes a claim for damages necessarily implicates, to some extent, concerns regarding notice and an opportunity to opt out. The Court, however, does not read Ortiz v. Fibreboard as requiring relief from class certification for the injunctive phase of this litigation. In Ortiz, the Supreme Court, addressing whether it was proper to certify a mandatory settlement class under a limited fund theory pursuant to Rule 23(b)(I )(B) when the settlement itselfcreated the limited fund, was faced with a significantly different scenario than the one currently before this Court, which has certified a mandatory class only as to the issue of injunctive and declaratory relief.
Defendants' reliance upon Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894 (7th Cir. 1999), is also unavailing. In Jefferson, the Seventh Circuit, citing Ortiz, held that it was improper for the
7

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 8 of 9 Pg ID 556
.·

district court to automatically certify a mandatory Rule 23(b)(2) class in an employment

discrimination case without considering whether the plaintiffs' claims for damages "were more than

incidental to the equitable relief in view." Id. at 899. Contrary to the case sub judice, however, the

district court in Jefferson had certified a mandatory Rule 23(b)(2) class on the issues of both

injunctive relief and damages. In vacating the district court's certification order and remanding for

further consideration, the Seventh Circuit specifically noted that in discrimination cases in which

both claims for injunctive relief and damages are asserted:

Divided certification also is worth consideration. It is possible to certify the injunctive aspects of the suit under Rule 23(b)(2) and the damages aspects under Rule 23(b)(3), achieving both consistent treatment of class-wide equitable relief and an opportunity for each affected person to exercise control over the damages aspects.

Id. at 898. Therefore, it appears to the Court that defendants' own authority supports the action taken

in this case: certification of the injunctive aspects of this suit under Rule 23(b)(2).

For the reasons stated above,

Conclusion

IT IS ORDERED that defendants' motion for relieffrom Order regarding class certification

&i\ \1

and bifurcation is DENIED.

\

Copies to:
Kerry L. Morgan, Esq. David F. Herr, Esq. Michael E. Rosman, Esq., Michael P. McDonald, Esq., Hans F. Bader, Esq. John Payton, Esq., Jane Sherburne, Esq. Leonard M. Niehoff, Esq.
8

2:97-cv-75231-PJD Doc # 144 Filed 05/02/00 Pg 9 of 9 Pg ID 557 Godfrey J. Dillard, Esq., Milton R. Henry, Esq. Elaine R. Jones, Esq., Theodore M. Shaw, Esq. Christopher A. Hansen, Esq., Steven R. Shapiro, Esq., Deborah N. Archer, Esq. Brent E. Simmons, Esq. Michael J. Steinberg, Esq. Patricia Mendoza, Esq.
9

 
 2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 1 of 51 Pg ID 1046

P"'ITED STATES DISTRICT COUR'r .

!:_.STERN DISTRICT OF MICHIGAl,

JENNIFER GRATZ and PATRICK HAMACHER,

SOUTHERN DIVISION
CHASEONON.: 97.-CV~-~~~~

for themselves and all others similarly

situated,

Plaintiffs,
v.
LEE BOLLINGER, JAMES J. DUDERSTADT, THE BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN,
Defendants, and
EBONY PATTERSON, RUBEN MARTINEZ, LAURENT CRENSHAW, KARLA R. WILLIAMS, LARRY BROWN, TIFFANY HALL, KRISTEN M.J. HARRIS, MICHAEL SMITH, KHYLA CRAINE, NYAH CARMICHAEL, SHANNA DUBOSE, EBONY DAVIS, NICOLE BREWER, KARLA HARLIN, BRIAN HARRIS, KATRINA GIPSON, CANDICE B.N. REYNOLDS, by and through their parents or guardians, DENISE PATTERSON, MOISE MARTINEZ, LARRY CRENSHAW, HARRY J. WILLIAMS, PATRICIA SWAN-BROWN, KAREN A. MCDONALD, LINDA A. HARRIS, DEANNA A. SMITH, ALICE BRENNAN, IVY RENE CHARMICHAEL, SARAH L. DUBOSE, INGER DAVIS, BARBARA DAWSON, ROY D. HARLIN, WYATT G. HARRIS, GEORGE C. GIPSON, SHAWN R. REYNOLDS, AND CITIZENS FOR AFFIRMATIVE ACTION'S PRESERVATION,

-
=-·~
.:(I. . .
"
0

Defendant-Intervenors.
_____________________________ /

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 2 of 51 Pg ID 1047
OPINION On October 14, 1997, Plaintiffs filed a class action against the University ofMichigan and various university officials asserting that the University's College ofLiterature, Science, and the Arts ("LSA") had violated Title VI of the Civil Rights Act, as well as the Equal Protection Clause of the Fourteenth Amendment, by considering race as a factor m admissions decisions. Plaintiffs seek injunctive, declaratory, and monetary relief. On December 23, 1998, this Court issued an Order bifurcating the action into a "liability" and "damages" phase. This matter is currently before the Court on cross-motions for summary judgment with respect to the "liability" phase only, which has been previously defined as "whether [D]efendants' use ofrace as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution,"1 and has been specifically limited to Plaintiffs' request for injunctive and declaratory relief? Oral argument was heard on November 16, 2000. For the reasons set forth herein:
1 Because Title VI "proscribe[s] only those racial classifications that would violate the Equal Protection Clause," it is not necessary for the Court to engage in a separate analysis regarding Plaintiffs' claims under Title VI. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 98 S. Ct. 2733,2746, 57 L. Ed. 2d 750 (1978).
2 In the same Order, this Court certified a class consisting of: Those individuals who applied for and were not granted admission to the College of Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treated less favorably on the basis ofrace in considering their application for admission.
(12/23/98 Op. at 15).
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Plaintiffs' motion for summary judgment shall be granted with respect to the LSA's admissions programs in existence from 1995 through 1998, and the admissions programs for such years shall be declared unconstitutional; .~ The University Defendants' motion for summary judgment shall be granted ~~ with respect to the LSA's admissions programs for 1999 and 2000;
c;\Q Plaintiffs' request for injunctive relief shall be denied; ~\ ~ Defendants Duderstadt and Bollinger's motion for summary judgment on
~ grounds of qualified immunity shall be granted; and The Board ofRegent's motion for summary judgment on grounds ofEleventh Amendment immunity shall be denied.3 Background The University ofMichigan ("University") is a public institution of higher education
located in Ann Arbor, Michigan. According to Defendants, admission to the University is selective, meaning that many more students apply each year than can be admitted. The University received some 13,500 applications for admission to the LSA in 1997, from which it elected to enroll 3,958 freshmen. Among its stated admissions objectives, the University strives to compose a class of students from diverse races, ethnicities, cultures, and socioeconomic backgrounds. The University views diversity as an integral component ofits mission. According to the University, diversity "increase[s] the intellectual vitality of[its] education, scholarship, service, and communal life." (Jt. Summ. Facts at 1).4 To facilitate
3 This Opinion and its corresponding order shall address only the University Defendants' arguments regarding diversity. The Intervenor-Defendants' arguments regarding remedial measures shall be addressed in a supplemental opinion and order.
4 The parties have provided the Court with a Joint Summary of Undisputed Facts Regarding Admissions Process, which was filed on December 13,2000.
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the University's goal of diversity, it is undisputed that the LSA employs race as a factor in its admissions decisions.
Plaintiffs Jennifer Gratz and Patrick Hamacher are Caucasian residents of the State ofMichigan, both ofwhom applied for admission into the 1995 and 1997 classes ofthe LSA, respectively. On January 19, 1995, Plaintiff Gratz was notified that a final decision regarding her admission had been delayed until early to mid April 1995, as she was considered by the LSA as "well qualified, but less competitive than the students who ha[d] been admitted on first review." (!d.). On April24, 1995, Plaintiff Gratz was notified that the LSA was unable to offer her admission. Thereafter, Plaintiff Gratz enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999.
Similarly, Plaintiff Hamacher was notified on November 19, 1996, that a decision regarding his admission was "postponed" until mid-April ofl997. According to the LSA's letter, a decision regarding PlaintiffHamacher had been postponed because,"[a]lthough [his] academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission." (ld. at 2). On April 8, 1997, Plaintiff Hamacher's admissions application was rejected. Thereafter, Plaintiff Hamacher enrolled at Michigan State University.
The Defendant-Intervenors are seventeen African American and Latino students who have applied for, or intend to apply for, admission to the University, joined by the Citizens for Affirmative Action's Preservation, a nonprofit organization whose stated mission is to preserve opportunities in higher education for African American and Latino students in
4

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 5 of 51 Pg ID 1050
Michigan. According to Defendant-Intervenors, the resolution ofthis case directly threatens African American and Latino students' access to higher education.
Plaintiffs have filed a motion for summary judgment asserting that the LSA's use of race as a factor in admissions decisions violates Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d, and the Equal Protection Clause of the United States Constitution. The University Defendants have filed a cross-motion for summary judgment asserting that the LSA's use of race as a factor in admissions decisions is, as a matter oflaw, constitutional. Defendant-Intervenors have filed responses to both motions, supporting the University Defendants' assertion that the LSA's admissions policies are constitutional.
Standard of Review Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702,709 (6th Cir. 2000); see also FED. R. Crv. P. 56(c). There is no genuine issue ofmaterial fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could "return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). On a motion for summary judgment, the moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the
5

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 6 of 51 Pg ID 1051
pleadings and come forward with specific facts to show that there is a genuine issue for trial. FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-24, 106 S. Ct. at 2552-53. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994). The nonmoving party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). If, after adequate time for discovery, the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Celotex, 477 U.S. at 322-24, 106 S. Ct. at 2552-53.
Discussion As previously mentioned, this phase ofthe litigation has been explicitly limited to the issue of "liability," defined as "whether Defendants' use ofrace as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution," as well as Plaintiffs' request for injunctive and declaratory relief. (12/23/98 Op. at 15; 5/l/00 Op. & Order at4). Specifically, Plaintiffs seek a declaratory judgment that the LSA's admission policies and practices for the academic years 1995 through the present
violate Plaintiffs' rights under the Constitution and 42 U.S.C. §§ 1981, 1983, and 2000d. Without such a declaration, Plaintiffs' claims for monetary relief fail. Plaintiffs further seek an order permanently enjoining the LSA from engaging in illegal, racially discriminatory admissions practices in the future.
The Equal Protection Clause of the Fourteenth Amendment provides that no State
6

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 7 of 51 Pg ID 1052
shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST., amend. XIV,§ 1. The "central mandate" of the Fourteenth Amendment "is racial neutrality in governmental decisionmaking." Millerv. Johnson, 515 U.S. 900, 904, 115 S. Ct. 2475, 2482, 132 L. Ed. 2d 762 (1995) (citing Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 1823,18 L. Ed. 2d 1010(1967);McLaughlin v. Florida, 379 U.S. 184,191-92,85 S. Ct. 283,287-88, 13 L. Ed. 2d 222 (1964)). "The basic principle is straightforward: 'Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination."' !d. (quoting Regents ofUniv. ofCal. v. Bakke, 438 U.S. 265,291, 98 S. Ct. 2733,2748,57 L. Ed. 2d 750 (1978) (Powell, J.)). Accordingly, the Supreme Court has explicitly clarified that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995).
Two interests have been asserted in support of the LSA's race conscious admissions policies. The University Defendants assert that the LSA has a compelling interest in the educational benefits that result from having a diverse student body, whereas the DefendantIntervenors assert that the LSA has a compelling interest in remedying the University's past and current discrimination against minorities.5 Therefore, the two issues this Court must
' Only the Defendant-Intervenors have asserted that the LSA's admissions policies serve a remedial purpose. The University Defendants have never justified the LSA's race-conscious admissions policies on remedial grounds.
7

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 8 of 51 Pg ID 1053
decide in resolving the parties' motions for summary judgment are: ( 1) whether Defendants have asserted a compelling governmental interest in support ofthe LSA's use ofrace and (2) whether the measures by which the LSA has used race as a factor in admissions decisions were narrowly tailored to serve such interest.
Both the Plaintiffs and the University Defendants have agreed to the material facts relating to the mechanics of the LSA's admission policies, and that the Court has, in the record currently before it, all the evidence they wish to present. Therefore, both Plaintiffs and the University Defendants agree there is no need for a trial with respect to the issue of whether diversity constitutes a compelling interest under strict scrutiny, and whether the LSA's admissions programs were narrowly tailored to achieving that interest, and that, based upon the record before the Court, such issues may be resolved by summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The Diversity Rationale Both parties assert that with respect to the University Defendants' "diversity" rationale, the Supreme Court's decision in Regents ofthe University ofCalifornia v. Bakke,
438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), governs this dispute. In support of their motion for summary judgment, the University Defendants, supported by DefendantIntervenors and a number of amici, contend that under Justice Powell's decision in Bakke, the University has a compelling governmental interest in the educational benefits that flow from a racially and ethnically diverse student body. The University Defendants also contend that under Bakke, the LSA's admissions policies were properly tailored to achieve the
8

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 9 of 51 Pg ID 1054
University's stated interest in diversity. Plaintiffs, however, contend that Justice Powell's decision in Bakke has never
garnered a majority of support from the Justices and that subsequent Supreme Court cases have confirmed that "diversity" and "academic freedom" are not compelling governmental interests that can ever justify the use of race in the admissions process. In the alternative, Plaintiffs contend that even if this Court were to find "diversity" to be a sufficiently compelling interest, they are nonetheless entitled to summary judgment because the manner in which the LSA used race in admissions decisions for the years at issue in this case, 1995 through the present, is inconsistent with that specifically endorsed by Justice Powell in Bakke. 1. The "Bakke" Decision
In Bakke, a rejected applicant challenged the University of California at Davis Medical School's admissions program, which consisted of two systems: a regular admissions system for non-minority applicants, and a special admissions system strictly for minorities. Bakke, 438 U.S. at 273-75, 98 S. Ct. at 2739-40. In contrast to the regular admissions system, the special minority admissions system operated with a separate committee, a majority ofwhom were members ofminority groups. Special applicants were rated by the special committee in a manner similar to the regular admissions system, except that the special applicants did not have to meet the 2.5 minimum GPA applied to nonminority applicants.
Under the university's special admissions system, the special applicants were never
9

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 10 of 51 Pg ID 1055
compared against the non-minority applicants. The special admissions committee would continue to recommend special applicants for admission until a specific number of minority applicants were admitted, which was predetermined by faculty vote. For example, in 1973 and 1974, sixteen out ofthe one hundred available seats were reserved for special applicants.
According to the university, its special admissions system served the purposes of: "(i) 'reducing the historic deficit oftraditionally disfavored minorities in medical schools and in the medical profession,' (ii) countering the effects ofsocietal discrimination, (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body." !d. at 306, 98 S. Ct. at 2756-57.
The Supreme Court ofCalifornia sustained the applicant's challenge, holding that the university's admission program violated the California Constitution, Title VI, and the Equal Protection Clause of the Fourteenth Amendment. On appeal, the United States Supreme Court, through a majority formed by Justices Powell, Stevens, Burger, Stewart and Rehnquist, affirmed the California Supreme Court's finding that the university's special admissions system was invalid, as was its order directing the university to admit the respondent to the Medical School. The Supreme Court also, through a different majority formed by Justices Powell, Brennan, White, Marshall, and Blackmun, reversed the California Supreme Court's order enjoining the university from ever considering race in making admissions decisions. An examination of the separate opinions in Bakke, however, clearly illustrates that there were no clear grounds upon which a majority of the Court agreed in
10

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 11 of 51 Pg ID 1056
reaching their respective decisions. Justice Powell's Opinion Justice Powell, writing solely for himself, supplied the pivotal vote in both affirming
the California Supreme Court's finding that the university's admission program was unlawful, and reversing the California Supreme Court's order "enjoining [the university] from according any consideration to race in its admission process." /d. at 272, 98 S. Ct. at 2738.
Applying strict scrutiny, Justice Powell found that to the extent that the university's purpose was 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 insubstantial, but as facially invalid." /d. at 307, 98 S. Ct. at 2757. Justice Powell also rejected the university's proferred interests in countering the effects of societal discrimination and improving the delivery ofhealthcare to disadvantaged communities. !d. at 307-10, 98 S. Ct. at 2757-59.
However, Justice Powell found that the university's fourth goal, "the attainment of a diverse student body," was "clearly" a "constitutionally permissible goal for an institution of higher education." /d. at 311-12, 98 S. Ct. at 2759. Relying upon the "four essential freedoms" that constitute "academic freedom," i.e. '"to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study,"' Justice Powell concluded that "[t]he freedom ofa university to make its own judgments as to education includes the selection of its student body." /d. at 312, 98 S.
II

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Ct. at 2759 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S. Ct. 1203, 1218, 1 L. Ed. 2d 1311 (1957) (Frankfurter, J., concurring)). According to Justice Powell, "[t]he atmosphere of 'speculation, experiment and creation' --so essential to the quality of higher education--is widely believed to be promoted by a diverse student body." !d. at 312, 98 S. Ct. at 2760. Furthermore, "the 'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." !d. at 313, 98 S. Ct. at 2760.
According to Justice Powell, a university's "interest in diversity is compelling in the context of a university's admissions program," in which "[e]thnic diversity ... is only one element in a range of factors a university properly may consider in attaining the goal of a heterogenous student body." !d. at 314,98 S. Ct. at 2760-61.
Justice Brennan's Opinion Applying intermediate scrutiny, Justice Brennan, joined by Justices White, Marshall, and Blackmun, found that the university's articulated purpose of remedying the effects of past societal discrimination was "sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access ofminorities."6 !d. at 362, 98 S. Ct. at 2784.
6 As noted supra, the Supreme Court has since clarified that all racial classifications are subject to strict scrutiny review. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995).
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Justice Stevens's Opinion Based upon the fact that Bakke was not a class action, but rather a "controversy between two specific litigants," Justice Stevens, joined by Chief Justice Burger, Justice Stewart, and Justice Rehnquist, viewed "the question of whether race can ever be used as a factor in an admissions decision" as an issue not before the Court. /d. at 408 & 411, 98 S. Ct. at 2808 & 2809. Justice Stevens also declined to address the issue on constitutional grounds, relying solely upon Title VI's prohibition instead, which Justice Stevens viewed as "crystal clear: Race cannot be the basis ofexcluding anyone from participation in a federally funded program." /d. at 418, 98 S. Ct. at 2813. 2. Diversity as a Matter of Law In support oftheir motion for summaryjudgment, the University Defendants contend that under Justice Powell's reasoning in Bakke, the University has, as a matter of law, a compelling governmental interest in the educational benefits that flow from a racially and ethnically diverse student body.7 According to the University Defendants, Justice Powell's opinion in Bakke stands as the narrowest grounds offered in support of the judgment in that case and is therefore also binding precedent on this Court. "When 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
7 Defendant-Intervenors join in the University Defendants' assertion that racial diversity is a compelling governmental interest in the context of higher education. (Def.-Intervenors' 8/11/00 Resp. to Defs.' Mot. at 3-5).
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v. United States, 430 U.S. 188, 193,97 S. Ct. 990,993,51 L. Ed. 2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.l5, 96 S. Ct. 2909,2923 n.l5, 49 L. Ed. 2d 859 (1976)). As explained by the Sixth Circuit, "[w]here a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree, that standard is the law of the land." Triplett Grille, Inc. v. City ofAkron, 40 F.3d 129, 134 (6th Cir. 1994).
It is clear that a majority of the Justices in Bakke expressly agreed that the California Supreme Court erred in enjoining the university from ever considering race in its admissions programs. Therefore, to the extent that the University Defendants assert Bakke's holding to be that '"a properly devised admissions program involving the competitive consideration of race and ethnic origin'" is constitutional, this Court agrees. See Bakke, 438 U.S. at 320, 98 S. Ct. at 2763; see also Minnick v. California Dep 't ofCorr., 452 U.S. 105, 115 & n.l7, 110 S. Ct. 2211, 2217 & n.l7, 68 L. Ed. 2d 706 (1981) (recognizing that the opinions ofJustices Brennan, White, Marshall, Blackmun, and Powell "unequivocally stated that race may be used as a factor in the admissions process in some circumstances"); Oliver v. Kalamazoo Bd. ofEduc., 706 F.2d 757, 763 (6th Cir. 1983) (citing Bakke for proposition that "affirmative action admission programs of educational institutions may take race into account"). What is less clear, however, is whether five Justices implicitly agreed that diversity can be a compelling interest in the context of higher education, i.e., whether universities have a compelling interest in the educational benefits that flow from a racially and ethnically diverse
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student body. It is clear that no five Justices in Bakke expressly held that diversity was a compelling
interest under the Equal Protection Clause. The most that can be garnered from Bakke's splintered decision is that five Justices reached the same conclusion, i.e. that universities may take race into account in admissions when done so properly, for separate, unrelated reasons.
The University Defendants, relying upon Smith v. UniversityofWashington, Nos. 9935209,99-35347,99-35348,2000 WL 1770045 (9th Cir. Dec. 4, 2000), contend that Justice Powell's opinion is the "narrowest opinion" of the Court and therefore, diversity is a compelling governmental interest as a matter oflaw.8
While this Court does not necessarily agree with the Ninth Circuit's conclusion that Justice Powell's "analysis is the narrowest footing upon which a race-conscious decision making process could stand," Smith, 2000 WL 1770045 at* I0, this Court reaches the same ultimate conclusion as the Ninth Circuit, i.e., that under Bakke, diversity constitutes a compelling governmental interest in the context ofhigher educationjustifying the use ofrace as one factor in the admissions process, albeit through somewhat different reasoning.9
Plaintiffs, relying on the Fifth Circuit's decision in Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033, 116 S. Ct. 2581, 135 L. Ed. 2d 1095
8 In their briefs, the University Defendants rely on the district court's opinion in Smith, No. C973352 (W.D. Wash. Feb. 12, 1999). On December 4, 2000, however, the Ninth Circuit affirmed the district court's decision.
9 Recognizing that neither the Supreme Court nor the Sixth Circuit have definitively held that diversity can never be a compelling interest under strict scrutiny, this Court is satisfied that the University's argument remains viable.
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(1996), and more recently, the United States District Court for the Southern District of Georgia's decision in Johnson v. Board ofRegents ofUniversity System ofGeorgia, 106 F. Supp. 2d 1362, 1375 (S.D. Ga. 2000), contend that, as a matter of law, "diversity" and "academic freedom" are not compelling governmental interests that can ever justify the use of race in the admission process. This Court disagrees.
In Hopwood, two of the three judges on the Fifth Circuit panel held "that any consideration of race or ethnicity... for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment." Hopwood, 78 F.3d at 944. The Fifth Circuit reasoned that by explicitly agreeing with a portion ofJustice Powell's opinion, but remaining silent in regard to Justice Powell's diversity rationale, the Justices who joined Justice Brennan's opinion in Bakke "implicitly rejected" Justice Powell's position regarding diversity. !d. This Court, however, believes that the panel in Hopwood reads too much into the other Justices' silence regarding Justice Powell's diversity rationale. It is just as likely that the other Justices felt no need to address the issue of diversity based upon their finding that under intermediate scrutiny, the program at issue was justified as a means to remedy past discrimination.
For example, Justice Brennan's silence regarding diversity could just as easily be interpreted as "implicit approval" that, in an appropriate case, diversity may constitute a compelling governmental interest. In fact, in Metro Broadcasting, Inc. v. F. C. C., 497 U.S. 547,568, 119 S. Ct. 2997,3010, 111 L. Ed. 2d445 (1990), rev'd on other grounds, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995), Justice
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Brennan specifically described the Supreme Court's decision in Bakke as recognizing that "a 'diverse student body' contributing to a 'robust exchange of ideas' is a 'constitutionally permissible goal' on which a race-conscious university admissions program may be predicated." In this Court's opinion, Justice Brennan's statement in Metro Broadcasting further supports a conclusion that his silence regarding the diversity interest in Bakke was not an implicit rejection of such an interest, but rather, an implicit approval of such an interest. As the Ninth Circuit recognized in Smith:
True it is that Justice Brennan did not specifically say that "race" 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 discrimination. 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.
Smith, 2000 WL 1770045 at *10.
Although this Court agrees that since Bakke, no Supreme Court decision has explicitly accepted the diversity rationale under strict scrutiny, this Court does not agree that under recent Supreme Court precedent, the diversity interest can never constitute a compelling state interest, especially in the context of higher education. In fact, none ofthe cases relied upon by the Fifth Circuit involved the issue of whether the educational benefits that flow from a racially and ethnically diverse student body can ever constitute a compelling governmental interest in the context of higher education, most likely because the Supreme Court has not been faced with this precise issue since Bakke. See Hopwood, 78 F.3d at 944-45; Johnson, 106 F. Supp. 2d at 1367-70.
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In Hopwood, the Fifth Circuit relied upon the Supreme Court's decision in City of Richmond v. J.A. Croson, 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), in reaching its conclusion that diversity can never justifY the use of racial classifications. Croson, however, involved a minority set-aside program in the context of government construction contracts. This Court agrees with Judge Wiener's concurring opinion in Hopwood that the public graduate or professional school context is distinguishable from the employment, minority business set-aside, and re-districting contexts in that, unlike the other cited contexts, the higher education context implicates "the uneasy marriage ofthe First and Fourteenth Amendments."10 Hopwood, 78 F.3d at 965 n.21 (Wiener, J., concurring).
As Justice Powell recognized in Bakke, "[a]cademic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern ofthe First Amendment." Bakke, 438 U.S. at 312, 98 S. Ct. at 2759. This "freedom" has always been viewed as including "[t]he freedom of the university to make its own judgments as to education," including "the selection of its student body." !d. (citing Sweezy v. New
10 As the First Circuit recognized in Wessman v. Gittens, 160 F.3d 790, 795-96 (1st Cir. 1998): In the education context, Hopwood is the only appellate court to have rejected diversity as a compelling interest, and it did so only in the face of vigorous dissent from a substantial minority of the active judges in the Fifth Circuit. See Hopwood v. State of Texas, 84 F.3d 720, 721 (5th Cir. 1996) (Politz, C.J., with whom King, Wiener, Benavides, Stewart, Parker, and Dennis, JJ.,joined, dissenting from denial of rehearing en bane). The question that divided the Fifth Circuit centered on the precedential value of Justice Powell's controlling opinion in Bakke. The panel in Hopwood pronounced that opinion dead. The dissenting judges countered that the reports of Bakke's demise were premature.
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Hampshire, 354 U.S. 234,263,77 S. Ct. 1203, 1218, 1 L. Ed. 2d 1311 (1957) (Frankfurter, J., concurring); Keyishian v. Board ofRegents, 385 U.S. 589,603, 87 S. Ct. 675,683, 17 L. Ed. 2d 629 (1967)).
Moreover, that section of Justice O'Connor's opinion in Croson that is most often cited for the proposition that race-based classifications must be "strictly reserved for remedial settings" did not enjoy a majority of the Court. Croson, 488 U.S. at 493, 109 S. Ct. at 722. In his concurring opinion, Justice Stevens specifically disagreed with the premise that seemed to underlie Justice 0'Connor's opinion, i.e., "that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong." !d. at 511, 109 S. Ct. at 731. In Justice Stevens's opinion, Justice O'Connor's approach "overlook[ed] the potential value of race-based determinations that may serve other valid purposes." !d. at 511 n.l, 109 S. Ct. at 731 n.l.
In short, this Court is not convinced that recent Supreme Court precedent has established, as a matter of law, that the consideration of race in an attempt to attain the educational benefits that flow from a racially and ethnically diverse student body in the context of higher education can never constitute a compelling interest under strict scrutiny. To that end, this Court agrees with Judge Wiener's concurring opinion in Hopwood that applicable Supreme Court precedent has never held "squarely and unequivocally either that remedying the effects ofpast discrimination is the only compelling state interest that can ever justify racial classification, or conversely that achieving diversity in the student body of a public graduate or professional school can never be a compelling governmental interest."
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Hopwood, 78 F.3d at 964 (Wiener, J., concurring); see also Smith, 2000 WL 1770045 at* 11
("For now, therefore, it ineluctably follows that the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures."); Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123, 130 (4th Cir. 1999) (noting that issue ofwhether diversity constitutes a compelling interest remains unresolved); Boston's Children First v. City ofBoston, 62 F. Supp. 2d 247, 258 (D. Mass. 1999) (rejecting plaintiffs contention on motion for preliminary injunction that diversity can never be compelling governmental interest); Hunter v. Regents ofUniv. of Cal., 971 F. Supp. 1316, 1324-27 (C.D. Cal. 1997) (rejecting plaintiffs contention that remedying past discrimination is only compelling state interest). Accordingly, this Court is satisfied that, if presented with sufficient evidence regarding the educational benefits that flow from a diverse student body, there is nothing barring the Court from determining that such benefits are compelling under strict scrutiny analysis.
The University Defendants have presented this Court with solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body. According to Patricia Y. Gurin, Professor of Psychology at the University of Michigan and Interim Dean of the LSA, "[s]tudents learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting." (Gurin Rep. at 3; see also U.S. Br. at 20-24; Association of
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American Law Schools ("ALS")11 Br. at 6-1 0). Diversity in higher education also serves to
break "patterns of racial segregation and separation historically rooted in our national life."
(Id.). Gurin reports that "multi-institutional national data, the results ofan extensive survey
ofstudents at the University ofMichigan, and data drawn from a specific classroom program
at the University of Michigan" show that "[s]tudents who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills." (!d. at 5). Such students were also "better able to understand and consider multiple perspectives, deal with the conflicts that different perspectives sometimes create, and appreciate the common values and integrative forces that harness differences in pursuit of common ground." (Id. at 5-6; see also ALS Br. at 11-13; American Council on Education ("ACE"Y 2 Br. at 9-11).
Members of heterogeneous working groups also offer more creative solutions to problems than do homogeneous groups, and show a greater potential for critical thinking
11 The Association of American Laws Schools, National Association of State Universities and Land Grant Colleges, Committee on Institutional Cooperation (an academic consortium including Indiana University, Michigan State University, Northwestern University, The Ohio State University, Pennsylvania State University, Purdue University, the University of Chicago, the University of Illinois, the University oflowa, the University of Michigan, the University of Minnesota, and the University ofWisconsin-Madison), and Wayne State University have joined in one amicus brief in support of the University, together representing over 360 institutional members of the professional higher education community.
12 The American Council on Education is joined by twenty-four other associations, councils, and other groups representing the higher education community throughout the United States.
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because heterogeneity "eliminates a problem termed 'group think,' an organizational situation in which group members mindlessly conform." (!d. at 17) (internal citation omitted). Students who had experienced the most diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills. (!d. at 35-36 & Tables C1, C2, M1, M2, Il). Gurin also concludes that on average, students who attend more diverse institutions exhibit a greater "intellectual engagement and motivation index" and a greater "citizenship engagement index." (!d., Figs. 3 &4).
A number of amici have filed briefs concurring with the University that diversity results in a richer educational experience for students. 13 In support ofits position, the United States cites a study by Alexander Astin, Director ofthe Higher Education Research Institute at the University ofCalifornia, in which Astin associates diversity with increased satisfaction in most areas of the college experience and an increased commitment to promoting racial understanding and participation in cultural activities, leadership, and citizenship. (U.S. Br. at 20-21; see also ALS Br. at 6; ACE Br. at 15).
The over 360 institutions represented by the Association of American Law Schools
13 Along with the ALS and ACE, the following have filed amicus briefs in support of the University's position: the United States, the State ofOhio, the Michigan Attorney General, General Motors Corporation, Steelcase, Inc.,joined by nineteen other global corporations, and the National Association of Social Workers, joined by the Council on Social Work Education, the Association of Baccalaureate Social Work Program Directors, Inc., and the Group for the Advancement of Doctoral Education in Social Work.
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assert that they have learned through their extensive experience in the educational realm that the quality of education for all students is greatly enhanced when student bodies include persons ofdiverse backgrounds, interests, and experiences, including racial and ethnic makeups. (ALS Br. at v). According to these institutions, a decision adverse to the University Defendants would significantly undermine their ability to provide the highest quality of academic experience and to prepare their students to effectively contribute to society after graduation. (!d. at vi).
Plaintiffs have presented no argument or evidence rebutting the University Defendants' assertion that a racially and ethnically diverse student body gives rise to educational benefits for both minority and non-minority students. In fact, during oral argument, counsel for Plaintiffs indicated his willingness to assume, for purposes of these motions, that diversity in institutions ofhigher education is "good, important, and valuable." Counsel for Plaintiffs, however, contends that "good, important, and valuable" is not enough, and that the diversity rationale is too amorphous and ill-defined, and "too limitless, timeless, and scopeless," to rise to the level of a compelling interest. According to counsel for Plaintiffs, the University's diversity rationale has "no logical stopping point" but rather is a "permanent regime" in direct conflict with the strict scrutiny standard.
This Court, however, is not convinced that what may be too amorphous and illdefined in other contexts, i.e. the construction industry context, is also necessarily too amorphous or ill-defined in the context ofhigher education. In this Court's opinion, the fact that the University cannot articulate a set number or percentage of minority students that
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would constitute the requisite level of diversity does not, by itself, eliminate diversity as a potentially compelling interest.
Furthermore, unlike the remedial setting, diversity in higher education, by its very nature, is a permanent and ongoing interest. As previously noted, diversity is not a "remedy." Therefore, unlike the remedial setting, where the need for remedial action terminates once the effects ofpast discrimination have been eradicated, the need for diversity lives on perpetually. This does not mean, however, that Universities are unrestrained in their use of race in the admissions process, as any use of race must be narrowly tailored. Hopefully, there may come a day when universities are able to achieve the desired diversity without resort to racial preferences. Such an occurrence, however, would have no affect on the compelling nature ofthe diversity interest. Rather, such an occurrence would affect only the issue of whether a university's race-conscious admissions program remained narrowly tailored. In this Court's opinion, the permanency ofsuch an interest does not remove it from the realm of"compelling interests," but rather, only emphasizes the importance of ensuring that any race-conscious admissions policy that is justified as a means to achieve diversity is narrowly tailored to such interest.
The only argument rebutting the University Defendants' assertions regarding the educational benefits of a diverse student body comes from the National Association of Scholars ("NAS"), which has filed a briefas amicus curiae in support ofPlaintiffs. Contrary to the amici in support of the University Defendants, the NAS contends that "intellectual diversity bears no obvious or necessary relationship to racial diversity." (NAS Br. at 3).
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NAS specifically takes issue with the studies relied upon by the ALS, contending that such studies really report that "outcomes are generally not affected" by racial diversity on campus. (!d. at 6-7).
NAS also asserts that none of the variables Gurin uses in her studies as proxies for racial diversity on college campuses actually requires the presence ofother-race students on campus. (Jd. at 8). For example, NAS asserts that Gurin relies on a student's attendance at an ethnic studies course coupled with either participation in a racial/cultural awareness workshop or a discussion regarding racial issues. (Id.). As NAS points out, neither ofthese necessarily requires the presence of other-race students.
NAS also attacks Gurin's study as providing no indication ofthe number of minority students that are needed to achieve the effects reported. (!d. at 9). According to NAS, "[i]t is possible that the positive outcomes that Gurin catalogues do not require any more racial diversity than that which would occur without racial preferences." (Id.). This argument, however, does not go to the core issue of whether the educational benefits that flow from a diverse student body constitute a compelling governmental interest, but rather, whether the means employed to achieve that interest are narrowly tailored.
This Court is persuaded, based upon the record before it, that a racially and ethnically diverse student body produces significant educational benefits such that diversity, in the context of higher education, constitutes a compelling governmental interest under strict scrutiny.
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3. Narrowly Tailored Analysis Having determined that the educational benefits flowing from a racially and ethnically
diverse student body are a sufficiently compelling interestto survive strict scrutiny, the Court must now determine whether the LSA's admissions policies for the years at issue (1995present) were narrowly tailored to achieving that interest.
Although Justice Powell found diversity to be a compelling interest in the context of a university's admissions program, Justice Powell ultimately found that the particular admissions program at issue in Bakke was not a narrowly tailored means of achieving such interest and accordingly, the program was nonetheless unconstitutional. According to Justice Powell, the fatal flaw in the University of California's program was that:
It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class. Bakke, 438 U.S. at 318,98 S. Ct. at 2763. However, "[i]n enjoining [the university] from ever considering the race of any applicant," the California Supreme Court had "failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." !d. For that reason, Justice Powell concluded that so much of the California court's judgment that enjoined the university from any consideration of an applicant's race
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had to be reversed. 14
In contrast to the University ofCalifomia's special admissions system, Justice Powell
cited Harvard's admissions program as an example of how race could properly be taken into
account in an effort to achieve diversity. !d. at 316, 98 S. Ct. at 2762. As Justice Powell
described Harvard's admissions program:
In such an admissions program, race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that ofan applicant identified as an Italian-American ifthe latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the "mix" both of the student body and the applicants for the incoming class.
!d. at 317-18, 98 S. Ct. at 2762.
According to Justice Powell, such a program was appropriate because it "treat[ed]
each applicant as an individual in the admissions process." !d. at 318, 98 S. Ct. at 2762.
14 In contrast, Justice Brennan found that there was "no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission ofan approximately determined number ofqualified minority applicants and setting a fixed number of places for such applicants." Bakke, 438 U.S. at 378, 98 S. Ct. at 2793.
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"The applicant who loses out on the last available seat to another candidate receiving a 'plus' on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similarnonobjective factors, did not outweigh those of the other applicant." !d. An applicant whose qualifications had been weighed "fairly and competitively" had no basis to complain of unequal treatment under the Fourteenth Amendment. !d.
Although the Harvard plan spoken ofapprovingly by Justice Powell did not set targetquotas for the number of minorities to be admitted in a given year, the plan clearly used race as a factor in admissions. ld. at 316, 98 S. Ct. at 2761-62. Therefore, to the extent that Plaintiffs contend that race can never be used as a factor during admissions decisions, their argument must be rejected.
It is also clear that under the Harvard plan, "race may tip the balance in [an applicant's] favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases." !d. at316, 98 S. Ct. at 2761. Therefore, in some cases, an applicant may constitutionally be granted admission over another applicant solely on account of his race.
Furthermore, a university may "pay[ ] some attention to distribution among many types and categories of students," as more than a "token number of blacks" is necessary to fully achieve the educational benefits that flow from a racially and ethnically diverse student body. !d. at 316-17,98 S. Ct. at 2762. As Harvard explained in regard to its admission
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program: In Harvard College admissions the Committee has not set target-quotas for the number ofblacks, or ofmusicians, football players, physicists or Californians to be admitted in a given year. At the same time the Committee is aware that if Harvard College is to provide a truly heterogen[e]ous environment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers. It would not make sense, for example, to have I 0 or 20 students out of I, 100 whose homes are west of the Mississippi. Comparably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States.
Jd. at 323, 98 S. Ct. at 2765. As is clear from Justice Powell's opinion in Bakke, a university's interest in achieving
the educational benefits that flow from a diverse student body does not justify an admissions program designed to admit a predetermined number or proportion of minority students. Instead, a university must carefully design its system to fall between these two competing ends of the spectrum, i.e., between a system that completely fails to achieve a meaningful degree of diversity, under which the benefits associated with a diverse student body will never be realized, and a rigid quota system, which is clearly unconstitutional under Justice Powell's opinion in Bakke.
In striving to achieve such a system, "race or ethnic background may be deemed a 'plus' in a particular applicant's file," as long as this plus "does not insulate the individual from comparison with all other candidates for the available seats." Id. at 317, 98 S. Ct. at 2762. As Justice Powell explained with reference to the Harvard plan, an admissions program that takes race into consideration must be "flexible enough to consider all pertinent
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elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." !d. at 317, 98 S. Ct. at 2761. It is exactly because race need not necessarily be accorded the same weight as other objective factors that, in some instances, "race may tip the balance in an applicant's favor." !d. at 316,98 S. Ct. at 2761.
The instant action involves the LSA's admissions programs from 1995 through the present. In 1995 and 1996, admission decisions were based primarily on a set of guideline tables referred to as grids, with GPA 2 ranges represented on the vertical axis, and ACT/SAT scores represented on the horizontal axis. 15 In 1995, four grids were used: (1) in-state nonminority applicants, (2) out-of-statenon-minority applicants, (3) in-state minority applicants, and (4) out-of-state minority applicants. In 1996 only two grids were used- (1) in-state and legacy applicants and (2) out-of-state applicants- with non-minority applicant action codes listed in the top row of the grid's cells, and minority action codes listed in the bottom row. In 1997, the same grids as in 1996 were used. However, in 1997, the LSA also added .5 to under-represented minority applicants' GPA 2 scores.
From 1998 through the present, the LSA has used a 150 point system, under which admission decisions were generally determined by the applicant's rank on the 150 point scale. Under-represented minority applicants automatically receive 20 points based upon
15 An applicant's GPA 2 was calculated by adjusting the applicant's high school GPA based upon several factors, including the quality of the applicant's high school, the strength of the applicant's high school curriculum, any unusual circumstances, the applicant's geographical residence, and the applicant's alumni relations, if any.
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their membership in one ofthe identified under-represented minority categories. In 1999 and 2000, the LSA also added a system whereby certain applicants, including under-represented minority applicants, could be "flagged," thereby keeping such applicants in the review pool for further consideration.
Beyond the fact that rigid quotas are impermissible, Justice Powell's opinion in Bakke fails to set forth any bright line regarding what constitutes a permissible consideration ofrace in admissions decisions. Furthermore, in situations such as this, it is often a thin line that divides the permissible from the impermissible. Applying the principles set forth by Justice Powell in Bakke, this Court is satisfied that when examined in its entirety, the LSA's current admissions program ( 1999-present) represents a permissible use of race. At the same time, however, the Court is satisfied that although the LSA views its current system as "chang[ing] only the mechanics, not the substance" ofits prior systems, its prior systems, when examined in their entirety, cross that thin line from the permissible to the impermissible. 16
A. The LSA's Current System (1999-Present) Foremost in the Court's decision that the LSA's current admissions program is constitutional is the fact that the LSA's current program does not utilize rigid quotas or seek
16 It is understandable that the LSA does not contend that there is any "substantive" difference between its current and prior admissions programs. To acknowledge a substantive difference in such programs would give some support to Plaintiffs' claims that the admissions programs in effect from 1995 through 1998 were not "narrowly tailored." Furthermore, the University Defendants' contention that "only the current system can form the basis for [injunctive relief]," and their arguments in support of this contention, (Defs.' 8/11/00 Br. at 92), suggest that there are some significant differences between the LSA's current admissions programs and those used from 1995 through 1998.
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to admit a predetermined number of minority students. Therefore, the LSA's current program does not contain the fatal flaw identified by Justice Powell in Bakke. Instead, race is taken into account in two ways under the LSA's current program. First, admissions counselors may assign each under-represented minority applicant twenty points in calculating their selection index score on account of their race. Second, under the LSA's current program, counselors may "flag" applicants that possess certain qualities or characteristics the LSA deems important to the composition of its freshman class, one of which is "underrepresented race," thereby keeping an applicant who may not necessarily pass the LSA's initial admit threshold in the review pool for further consideration. 17 Such uses of race, however, operate as nothing more than the "plus" spoken ofwith approval by Justice Powell in Bakke.
In response, Plaintiffs contend that the LSA's practice of adding twenty points to under-represented minority applicants' selection index scores really operates as the functional equivalent of a quota. Justice Powell, however, rejected essentially the same argument in Bakke explaining:
It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated--but no less effective-means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element--to be weighed fairly against other elements--in the selection process. "A boundary line," as Mr. Justice Frankfurter remarked in another connection, "is none the worse for
17 Other qualities or characteristics include high school class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and geography.
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being narrow." McLeod v. Dilworth, 322 U.S. 327,329,64 S. Ct. 1023, 1025, 88 L. Ed. 1304 (1944). And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. See e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229,96 S. Ct. 2040,48 L. Ed. 2d 597 (1976); Swain v. Alabama, 380 U.S. 202,85 S. Ct. 824, 13 L. Ed. 2d 759 ( 1965). !d. at 318-19,98 S. Ct. at 2762-63. Minority applicants are not insulated from review by virtue ofthese twenty points any more than other applicants are insulated from review by virtue of the six points awarded for geographic factors, four points awarded for alumni relationship, three points awarded for an outstanding essay, five points awarded for leadership and service skills, twenty points awarded for socioeconomic status, or twenty points awarded for athletes. In fact, the Court notes that in certain circumstances, these points may be combined for a total of up to forty. The fact that these points may "tip the balance" in favor of a particular applicant, however, does not necessarily lead to a conclusion that such applicants have been insulated from competition in the sense that Justice Powell spoke of in Bakke. The Court agrees that in certain situations, a pre-existing commitment to a fixed preference may translate into an exact proportion of the favored group being selected. This is most clearly illustrated by programs in which a preference is only available for one factor, for example race. However, under the LSA's admissions program, there are many factors that may entitle an applicant to a preference, thereby making the results ofany one factor Jess
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predictable. Plaintiffs also contend that the LSA's program, under which twenty points may be
added to the selection index score of under-represented minority applicants, operates as the same type of "dual" or "two-track" system prohibited by Justice Powell in Bakke. (Pis.' 8/11100 Br. at 15). The "two-track" system Justice Powell spoke of in Bakke, however, was not a two-track system that employed lower thresholds for minority applicants vis a vis majority applicants. Such a conclusion is evident from the fact that not once in his narrowly tailored analysis did Justice Powell ever discuss the fact that under the University of California's admissions program, majority students were subject to a 2.5 minimum GPA requirement, whereas there was no minimum GPA requirement for minority students. See id. 274-75, 98 S. Ct. at 2739-40.
Instead, the "two-track" system of which Justice Powell spoke was the university's system under which one group of students, i.e. minority students, competed for one set of seats, and another group ofstudents, i.e. majority students, competed for another set ofseats, thereby in effect creating two separate admissions systems. Justice Powell's statement that the university's interest in genuine diversity would not be served by "expanding [the university's] two-track system into a multitrack program with a prescribed number of seats set aside for each identifiable category of applicants" further confirms that the two-track system Justice Powell spoke of related to the university's practice of setting seats aside for minority applicants, not the university's practice of employing different GPA requirements for minority vis a vis majority applicants. !d. at 314, 98 S. Ct. 2761.
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Furthermore, unlike the University of California, the LSA does not utilize a separate admissions review committee for under-represented minority applications. Instead, admission counselors are assigned to specific geographic areas. Each counselor reviews all applications from his or her territory, under-represented minority and non-minority alike. There is no separate review or assignment ofunder-represented minority applicants as there was in Bakke. (Spencer Dep. at 273; Gauss Dep. at 31, Vanhecke Dep. at 99).
Moreover, whenever a point-based system such as the LSA's is used in making admissions decisions, any factor that may result in points being added to an applicant's total score will necessarily have the effect oflowering that applicant's admission threshold. For example, any time an applicant receives three points for an outstanding essay, it can just as easily be said that the threshold for admission for that applicant has now been reduced by three points. The same is true for each of the other factors used during the admissions process, e.g., geographic location, alumni relationship, socioeconomic status, etc. Such a result is the natural byproduct of using such a point system.
What Plaintiffs really appear to contest is the fact that race is accorded twenty points, while other factors that may more consistently favor non-minority students are not typically accorded the same weight. However, as Justice Powell recognized in Bakke, universities may accord an applicant's race some weight in the admissions process and, in doing so, universities are not required to accord the same weight to race as they do other factors. Bakke, 438 U.S. at 317-18, 98 S. Ct. at 2762. As long as the admissions program does not work to isolate the applicants from review, it withstands constitutional muster, despite the
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fact that it may provide individuals with a "plus" on account of their race. Plaintiffs also attack the LSA's "flagging" system. According to Plaintiffs, the files
ofunder-represented minorities remain "protected" insofar as the LSA's flagging procedure ensures that the files of such students remain in the "review pool" because of their race.
Under the LSA's current admissions system, a counselor may "flag" an applicant if (l) in the counselor's estimation, the applicant is academically prepared for the University, (2) has a selection index score of at least 80 for residents, or 75 for non-residents, and (3) possesses a quality or characteristic the LSA deems important to the composition of its incoming class, including under-represented minority status. Counselors, however, are not required to flag every under-represented minority applicant. Furthermore, applicants other than under-represented minority applicants may also be flagged. For example, other factors a counselor may consider in flagging applications include whether the applicant was in the top of his class, resided in a preferred county of Michigan, exhibited any "unique life experiences, challenges, circumstances, interests or talents," exhibited a disadvantaged background, had an important connection to the University community, or was a recruited athlete. (Defs.' Exs., Ex. Z at 3-4). Given that any number of applicants, including applicants other than under-represented minority applicants, may be "flagged" under the LSA's current system, the Court rejects Plaintiffs' contention that under-represented minorities remain "protected" by virtue of such system.
Plaintiffs also contend that the University Defendants have failed to sustain their burden of showing that it considered race-neutral alternatives to its current program. For
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example, according to Plaintiffs, one obvious race-neutral mechanism would be to randomly select all or a portion ofthe class from the entire pool of'qualified' applicants, regardless of race. Plaintiffs, however, fail to explain how randomly selecting all or a portion of the class from the entire pool of applicants would produce a sufficiently diverse student body. As discussed supra, to achieve the educational benefits associated with a racially and ethnically diverse student body, more than a token number of under-represented minority students is required. Given the small size of the applicant pool, it is highly unlikely that a random selection process would result in a sufficiently diverse student body.
Furthermore, the University Defendants have presented evidence that a race-neutral admission program would substantially reduce the number of under-represented minority students in the LSA's incoming student body. (See Raudenbush 2/24/00 Supp. Rep. at 4-5; Raudenbush 3/3/99 Supp. Rep. at 9-11 ). If race were not taken into account, the probability ofacceptance for minority applicants would be cut dramatically, while non-minority students would see only a very small positive effect on their probability of admission, due largely in part to the size of their respective applicant pools. (See Raudenbush 3/3/00 Supp. Rep. at II).
The University Defendants have also presented evidence that a system that relied entirely on test scores would also lead to the rejection of a number of qualified minority applicants. (Bowen Rep. at I 0). This is due to the fact that nationally, minorities are very under-represented at the higher level ofstandardized test scores, and over-represented at the lower level. (/d. at 10).
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The University Defendants have also presented the expert opinion of William G. Bowen that the race-neutral admissions program currently used by the University ofTexas, under which all students who finish in the top ten percent of their high school class are guaranteed admission, and any system based purely on an applicant's income level, would not be as effective in enrolling "an academically well prepared and diverse student body." (Bowen Rep. at 12). According to Bowen, the Texas approach would have the effect of "admit[ting] some students from weaker high schools while turning down better-prepared applicants who happen not to finish in the top tenth of their class in academically stronger schools." (!d.). Bowen further hypothesizes that "[s]o long as high schools differ so substantially in the academic abilities of their students and the level of difficulty of their courses, treating all applicants alike if they finished above a given high school class rank provides a spurious form of equality that is likely to damage the academic profile of the overall class of students admitted to selective institutions." (Id.).
According to Bowen, income-based strategies are just as ineffective as there "are simply too few blacks and Latinos from poor families who have strong enough academic records to qualify for admission to highly selective institutions." (Id. at 13). Bowen also reports that if universities were totally eliminated from considering race during the admissions process, "over half of the black students in selective colleges today would have been rejected." (Id.).
Furthermore, the University has attempted to enlarge its pool of under-represented minority applicants through vigorous minority recruitment programs, which have all proved
38

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to be unavailing. For example, the University's efforts have included personal contact with minority students at symposia, attendance at recruiting fairs, direct mailings, campus visits, and offices in Detroit. (Vanhecke Dep. at 11-12; Spencer Dep. at 29, 196-97). Nevertheless, according to the University, its pool of qualified minority applicants for the LSA has remained small, most of whom are also highly recruited by other selective institutions and universities. (Defs.' 7/17/00 Br. at 27).
The Court also rejects Plaintiffs' contention that the LSA' s current system amounts to nothing more than racial balancing. Unlike the cases relied upon by Plaintiffs, the LSA does not seek to achieve a certain proportion ofminority students, let alone a proportion that represents the community. To that end, the Court agrees with the Fourth Circuit in Tuttle v. Arlington County Sch. Bd., 195 F.3d 687, 707 (4th Cir. 1999), that an educational institution's goal ofachieving the educational benefits associated with a diverse student body "do[es] not require racial balancing." However, the University's interest does require a sufficiently diverse student body and therefore, requires that some attention be given to the composition of the student body. Although fixed racial quotas and racial balancing are not necessary to achieving that goal, the consideration of an applicant's race during the admissions process necessarily is.
In summary, the Court is satisfied that the LSA's current admissions program, under which certain minority applicants receive a "plus" on account of their race but are not insulated from all competition with other applicants, meets the requirements set forth by Justice Powell in Bakke and is therefore constitutional. Accordingly, the University
39

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 40 of 51 Pg ID 1085
Defendants' motion for summary judgment shall be granted with respect to the LSA's
current admissions program, and Plaintiffs' motion for injunctive relief shall be denied.
B. The LSA's Prior Programs (1995-1998)
Although the Court finds the LSA's current admissions program to be permissible
under the principles set forth by Justice Powell in Bakke, the Court is similarly satisfied that
the LSA's prior admissions programs, when examined in their entirety, represent an
impermissible use ofrace. One ofthe most significant factors that transforms the permissible
into the impermissible in this case is the LSA's prior practice of"protecting" or "reserving"
seats for under-represented minority applicants. As explained by the LSA itself:
Because the class is selected on a rolling basis, rather than at one point in time, a certain number ofseats is designated during the admissions cycle for in-state students and for certain other groups of students, including, for example, athletes, foreign applicants, underrepresented minority candidates, and ROTC candidates (sometimes referred to as "protected" space). This space is "protected" to enable OUA to achieve the enrollment targets ofthe University and of the individual units while using a rolling admissions system. If this space is not filled by qualified candidates from the designated groups toward the end of the season, it used to admit students from the postponed pool or the extended waiting list, applicants to other units, etc.
(Defs.' Answer Interrog. No. 1) (emphasis added); (See also Pis.' 4/9/99 Exs., Vol. I, Exs.
P, Q, & R) (showing number ofprotected seats for particular academic years). The LSA has
also explained this practice in the following manner:
LSA admissions occur on a "rolling" basis: rather than waiting for one date in late winter to notify all applicants ofthe disposition of their applications, LSA admits applicants throughout the admissions season. Under such a process, offers of admissions must be carefully monitored and managed to ensure that sufficient spaces are reserved, or protected, for attractive applicants who apply later in the cycle. The number of protected spaces is determined by the
40

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 41 of 51 Pg ID 1086
expected pool size of various groups of applications. As applicants from a particular group are admitted over the course ofthe admissions season, the protected spaces reserved for that group are used. If the pool of qualified applicants never reaches the number of protected spaces, those slots are filled with qualified applicants off the wait list. (Pis.' 4/9/99 Br. at 7 n.4) (quoting Defendants' Motion for Reassignment or Designating Actions as Companion Cases in Grutter v. Bollinger, 97-CV-5928-DT). Other memoranda refer to these "protected" seats as being "reserved" for particular groups of applicants. (See Pis.' 4/9/99 Exs., Vol. I, Ex. M). In fact, one memorandum specifically states that the number of"protected groups" for Falll997 would be decreased, thereby "opening up slots fornon-protected applicants." (!d., Ex. 0). This evidence clearly indicates that these slots were not merely protected from the admissions process itself, but from competition by non-protected applicants. It is clear that the LSA' s system operated as the functional equivalent of a quota and therefore, ran afoul of Justice Powell's opinion in Bakke. In this Court's opinion, there is no significant difference between the LSA' s prior practice of"protecting" or "reserving" seats and the University ofCalifomia's quota system. The fact that non-minority applicants may have had a chance at any "leftover" spots at the end of the admissions cycle does not change this conclusion. Under both systems, preferred minority applicants were insulated from competition from non-preferred applicants for a given number of seats. The fact that this number may have changed from year to year, or even during any one particular admissions cycle, does not change this fact. It can hardly be said that those non-preferred applicants who, by pure chance, may have had an opportunity
41

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 42 of 51 Pg ID 1087
to compete for one ofthe leftover seats, were allowed to compete on equal footing for every seat in the class.
Furthermore, it is undisputed that from 1995 through 1997, the LSA used facially different grids and action codes based solely upon an applicant's race. Under these differing grids, a certain group of non-preferred applicants were automatically excluded from competing for a seat in the class without any type of individualized counselor review solely on account oftheir race, 18 whereas, preferred minority applicants were never automatically rejected, regardless of their grades and test scores. Rather, all minority applicants received some type ofindividualized counselor review. (McKinney Dep. at41, Spencer Dep. at I05). This practice of "automatic exclusion" continued into the 1998 academic year despite the LSA's switch to the selection index system. (McKinney Dep. at 97-98, 150-52).
The Court agrees with the University Defendants' assertion that all who are ultimately admitted to the LSA are "qualified" academically, and neither Plaintiffs nor this Court seek to imply that those minorities who are admitted under the lower admissions standards are not academically qualified for admission. It cannot be seriously disputed, however, that the effect ofthe LSA's differing standards was to systematically exclude a certain group ofnonminority applicants from participating in the admissions process based solely on account of their race.
18 The Court notes that the LSA's practice of automatically rejecting applicants also ended with the 1999 academic year.
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2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 43 of 51 Pg ID 1088
For example, in 1995 and 1996, the LSA used two grids for instate applicants, 19 one for "non-minority" applicants and another for "minority" applicants. The non-minority grid indicated that an applicant with a GPA 2 of 3.2-3.3 and ACT of 18-20/SAT of 400-500 would be automatically rejected, whereas a minority applicant with the same grade/score would have most likely been admitted.20
In so doing, the LSA's policies foreclosed each of the automatically rejected applicants from further consideration for a seat simply because they were not of a favored race or ethnicity. These applicants were never accorded any further individualized review as envisioned by Justice Powell in Bakke. In this Court's opinion, the LSA's different treatment of preferred minority applicants vis a vis non-preferred applicants at this stage of the admissions process further adds to the infirmity of the LSA's prior programs.
Moreover, the only distinguishing factor between the grids used by the LSA during these years was the applicant's race. Therefore, to the extent admissions counselors used such grids in making admissions decisions, it is clear from the face of the grids themselves that in some cases, the only defining factor was race.
Although the LSA's use of facially different grids/action codes based upon an applicants' race, in and of itself, may not have been constitutionally impermissible, when combined with the other components previously discussed by the Court, i.e. the LSA's use
19 The Court notes that another set of grids was used for out-of-state applicants, for a total of four grids.
20 The minority grid also contained the option of delaying such a minority applicant "for senior year SAT's or ACT's."
43

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of protected seats and the LSA's system of automatic rejection, the Court is convinced that the LSA's prior programs, when examined in their entirety, fall within the impermissible under the principles enunciated by Justice Powell in Bakke. Accordingly, Plaintiffs' motion for summary judgment shall be granted with respect to the LSA's admissions programs employed from 1995 through 1998.
Qualified Immunity Defendants Bollinger and Duderstadt, who have been sued in their individual capacities under 42 U.S.C. § 1983, have moved for summary judgment on grounds of qualified immunity. Under the qualified immunity doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights ofwhich a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). "The question of whether qualified immunity attaches to an official's actions is a purely legal question for the trial judge to determine prior to trial." Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir. 1988). In order to determine whether an official is entitled to qualified immunity, a court must first consider, "whether, based on the applicable law, a constitutional violation occurred." Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.l996) (citing Centanni v. Eight Unknown Officers, 15 F.3d 587, 589 (6th Cir. 1994)). As discussed supra, the Court is satisfied that although diversity is a sufficiently compelling interest to survive strict scrutiny, the LSA's prior admissions programs (1995-1998) were nonetheless impermissible
44

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 45 of 51 Pg ID 1090
under the principles enunciated by Justice Powell in Bakke. Therefore, the Court is satisfied that a constitutional violation has occurred.
Next, the Court must determine whetherthe constitutional violation involved '"clearly established constitutional rights of which a reasonable person would have known."' !d. at 1158 (quoting Christophel v. Kukulinsky, 61 F.3d479, 485 (6th Cir. 1995)). "In determining whether a constitutional right is clearly established, a district court must find binding precedent by the Supreme Court, its court of appeals, or itself." Sheets v. Moore, 97 F.3d 164, 166 (6th Cir. 1996) (citing Ohio Civil Serv. Employees Ass 'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)). Neither party disputes the fact that under the Fourteenth Amendment, every individual is entitled to equal protection ofthe laws. To date, however, there has been only one Supreme Court decision addressing the extent to which a university may take race into consideration during the admissions decision, i.e., the Supreme Court's decision in Bakke. As is illustrated by the foregoing discussion, the binding effect of Justice Powell's opinion in Bakke has been the subject of much debate in recent years.
Furthermore, to defeat a claim of qualified immunity, Plaintiffs must show that Defendants "knew or reasonably should have known" that their actions were unconstitutional. Harlow, 457 U.S. at 816, 102 S. Ct. 2727; see also Dickerson, 101 F.3d at 1151 (quoting Russo v. CityofCincinnati, 953 F.2d 1036,1042 (6thCir. 1992)). '"[T]he unlawfulness must be apparent."' !d. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)).
In finding the University ofCalifornia's admission program unconstitutional, Justice
45

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 46 of 51 Pg ID 1091 • Powell relied exclusively upon the fact that the university employed a rigid quota. In light of the principles enunciated by Justice Powell in Bakke, the Court does not believe that it would necessarily have been unreasonable for an official in Defendants' position to conclude that the LSA 's admissions policies were constitutional. It is clear that the University did not employ the same type of rigid quota renounced by Justice Powell in Bakke. Moreover, the mere fact that this Court has disagreed with Defendants as to whether the LSA's programs were constitutional does not automatically defeat qualified immunity. As the Supreme Court has explained, "(t]he qualified immunity standard gives ample room for mistaken judgment by protecting all but the plainly incompetent or those who knowingly violate the law. This accommodation for reasonable error exists because officials should not err always on the side of caution because they fear being sued." Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991).
Applying the defense of qualified immunity in this case is, in this Court's opinion, consistent with the qualified immunity standard. Courts themselves have been struggling for well over two decades to fully understand what constitutes a properly devised admissions program under Bakke. This Court cannot say that a reasonable official in Defendants' position should have known that the LSA's prior admissions programs were unconstitutional. Accordingly, Defendants' motion for summary judgment based upon the doctrine of qualified immunity shall be granted.
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2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 47 of 51 Pg ID 1092 •
Eleventh Amendment Immunity
The Board of Regents ("the Board") also seeks summary judgment with respect to Plaintiffs' Title VI claims on grounds of Eleventh Amendment Immunity. In general, Eleventh Amendment immunity bars plaintiffs from bringing claims for damages against a state or its officials acting in their official capacities unless the state has waived its immunity, or Congress has exercised its power to override that immunity. See Will v. Michigan Dep 't ofState Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). With respect to Title VI, Congress has enacted a specific provision abrogating the states' Eleventh Amendment immunity. See42 U.S.C. § 2000d-7(a)(l).21
In fact, the Board specifically recognizes that Congress has abrogated its Eleventh Amendment immunity with respect to claims under Title VI, and that by accepting federal funds, it has consented to being sued for damages in federal court. (Defs.' 5/3/99 Br. at 68). In support of its motion for summary judgment, however, the Board contends that the scope of that agreement does not encompass Plaintiffs' claims because the Board was not on "notice" that its conduct in this case would subject it to liability. (!d. at 68-69). According to the Board, its actions must violate "clearly established legal principles" for its Eleventh
21 42 U.S.C. § 2000d-7(a)(!) specifically provides: A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C.A. § 794], title IX of the Education Amendments of 1972 [20 U.S.C.A. § 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C.A. § 6101 et seq.], title VI of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients ofFederal financial assistance. 47

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 48 of 51 Pg ID 1093
..
Amendment immunity to be abrogated. (!d.) (emphasis in original). None of the cases relied upon by the Board, however, support its claim that its
Eleventh Amendment immunity cannot be abrogated unless it had notice that its conduct was unconstitutional. In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998), the Supreme Court faced the issue of whether a plaintiff could maintain a cause ofaction for sexual harassment against a school under Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681, based upon a theory of respondeat superior or constructive notice. Because the express remedial scheme of Title IX was based upon notice to an appropriate person and an opportunity to rectify the discriminatory behavior, the Supreme Court held that a plaintiff could not maintain a cause of action under Title IX based upon a theory of respondeat superior or constructive notice. !d. 524 U.S. at 290-93, 118 S. Ct. at 1999-2000.
Similarly, in Guardians Association v. Civil Service Commission ofCity ofN Y., 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983), the Supreme Court faced the issue of whether a plaintiff could maintain a cause of action under Title VI without showing intentional discrimination on behalf of the defendant. In Guardians, the Supreme Court ultimately held that intent was not an essential element ofa Title VI violation, but "a plaintiff should recover only injunctive, noncompensatory relief for a defendant's unintentional violations of Title VI." !d. at 607, 103 S. Ct. at 3235. Each of these cases addressed the requisite showing a plaintiff must make to sustain a claim under the respective federal statute, not whether a state's Eleventh Amendment immunity could be abrogated where the
48

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 49 of 51 Pg ID 1094
...
state has not been put on "notice" thatthe specific conduct alleged to be a violation offederal law was illegal.
The Supreme Court has referred to§ 2000d as an "unequivocal waiver" ofthe states' Eleventh Amendment immunity. See Lane v. Pena, 518 U.S. 187, 198, 116 S. Ct. 2092, 2099, 135 L. Ed. 2d 486 (1996). Furthermore, a number ofcourts have recognized that with respect to Title VI, Congress has validly abrogated the states' Eleventh Amendment immunity. See, e.g., Fuller v. Rayburn, 161 F.3d 516, 518 (8th Cir. 1998)("We nevertheless agree with Mr. Fuller that by enacting section 2000d-7, 'Congress abrogated the States' Eleventh Amendment immunity under . . . Title VI."'); DeKalb County Sch. Dist. v. Schrenko, 109 F.3d 680, 688 (lith Cir. 1997) ("On the other hand, the parties agree that Congress has abolished the states' immunity for causes of action grounded in Title VI."); United States v. Yonkers Bd. ofEduc., 893 F.2d 498, 503 (2d Cir. 1990) ("With respect to Title VI, which prohibits, inter alia, racial discrimination in federally assisted programs, Congress has expressly abrogated the states' Eleventh Amendment immunity ....").
Moreover, to the extent that the Board seeks to extend the doctrine of qualified immunity to cover its actions, the Board's arguments must be rejected, as "[q]ualified immunity is not a defense available to governmental entities, but only to government employees sued in their individual capacity." Johnson v. Outboard Marine Corp., 172 F.2d 531,535 (8th Cir. 1999); see also Rodriguez v. City ofNew York, 72 F.3d 1051, 1065 (2d Cir. 1995) ("[T]he defense of qualified immunity protects only individual defendants sued in their individual capacity, not governmental entities."); Hill v. Dekalb Reg 'I Youth Det.
49

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 50 of 51 Pg ID 1095

Ctr., 40 F.3d 1176, 1185 (11th Cir. 1994) ("Governmental entities are not entitled to qualified immunity regarding section 1983 claims.").
By enacting§ 2000d, Congress validly abrogated the states' Eleventh Amendment immunity with respect to Title VI claim. Therefore, although the Board remains free to assert that Plaintiffs have failed to set forth a proper case under Title VI, the Eleventh Amendment does not bar Plaintiffs' claims for damages. Accordingly, the Board's motion for summary judgment with respect to Plaintiffs' Title VI claim shall be denied.
Conclusion For the reasons stated above, Plaintiffs' motion for summaryjudgment is granted with respect to the LSA's admissions programs in existence from 1995 through 1998, and the admissions programs for such years are declared unconstitutional. However, the University Defendants' motion for summary judgment is granted with respect to the LSA' s admissions programs for 1999 and 2000. Furthermore, Plaintiffs' request for injunctive relief is denied. Defendants Duderstadt and Bollinger's motion for summary judgment on grounds of qualified immunity is granted. The Board of Regent's motion for summary judgment on grounds of Eleventh Amendment immunity, however, is denied. An Order consistent with this Opinion shall issue.

Date: December 13, 2000

PAe~zt:~
UNITED STATES DISTRICT JUDGE

50

2:97-cv-75231-PJD Doc # 206 Filed 12/13/00 Pg 51 of 51 Pg ID 1096
Copies to:
Kerry L. Morgan, Esq. Kirk 0. Kolbo, Esq. Michael E. Rosman, Esq. John Payton, Esq. Leonard M. Niehoff, Esq. Godfrey J. Dillard, Esq. Theodore M. Shaw, Esq. Christopher A. Hansen, Esq. Brent E. Simmons, Esq. Michael J. Steinberg, Esq. Patricia Mendoza, Esq. L. Michael Wicks, Esq. Jeremiah Glassman, Esq. Edward B. Foley, Esq. Richard A. Wilhelm, Esq. Philip L. Graham, Jr., Esq. Susan I. Leffler, Esq. Kenneth S. Geller, Esq. Carolyn I. Polwy, Esq. Brice M. Clagett, Esq. Walter E. Dellinger, Esq. Martin Michaelson, Esq. Randall E. Mehrberg, Esq. Deanne E. Maynard, Esq.
51

 
 ~ 3/J../.r(p/f'k'fj ~3( 2:97-cv-75231-PJD

Doc # 237

Filed 12/11/02

Pg 1 of 1 Pg ID 1097
()/-! 3

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QPREME COURT OF THE UNITED STATES

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DEC 0 5 2002

OFFICE OF THE CLERK
WASHINGTON, D. c. 20543

LEONARD GREEN, Clerk December 2, 2002

DEC - 6 2002

Clerk

United States Court of Appeals for

the Sixth Circuit

524 Potter Stewart Courthouse 100 East Fifth Street

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> '·"':\.S -· IL t!:. Cincinnati, OH 45202

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r . R.e: Ebony Patterson, et al • .-:z v~"0./:-

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,

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DEC 11 2002

v. Lee Bollinger, et al.

No. 02·571

CLERK'S OFFICE

(Your No. 01-1333/1416/1418/1438) U.S. DISTRICT COURT

EASTERN MICHIGAN

Dear Clerk:

The Court today entered the following order in the above entitled case:
The petition for a writ of certiorari is denied. before judgment.

Sincerely,
U!~ t.J;/;;;
William K. Suter, Clerk

 
 2:97-cv-75231-PJD Doc # 271 Filed 01/27/05 Pg 1 of 2 Pg ID 2250

UNITED STATES DiSTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DlVlSlON

JENNIFER GRATZ and PATRICK HAMACHER, for themselves and all others similarly situated,
Plaintiffs,
v.
LEE BOLLINGER, ET AL. Defendants, and
EBONY PATTERSON, ET AL.
________I_n_te_rv_en_in_g_D_e_fe_n_da_n_ts._/

Case No. 97-75231
Honorable Pattiek J. Duggan

JAN 2 7 i'OD5

CLF.· ,, .j :. , , .

U. S. Di8T•' E'ltST ERr.:t

:

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I.'fR~NT

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' .FEES AND COSTS PURSUANT
TO 42 U.S.C. § 1988 AND DENYING PLAINTIFFS' MOTION TO ALLOW LIMITED DISCOVERY RELATED TO FEES AND COSTS

At a session of said Court, held in the U.S.

District Courthouse, City of Detroit, County of Wayne, State of Michigan, on

J~1'~11

2..

,
'

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~

PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE

On October 14, 1997, Plaintiffs filed this class-action lawsuit challenging the

admissions policy of the University of Michigan's College of Literature, Science, and the

2:97-cv-75231-PJD Doc # 271 Filed 01/27/05 Pg 2 of 2 Pg ID 2251

Arts. Presently before the Court is Plaintiffs' motion for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988. For the reasons set forih in an Opinion issued on this date,
IT IS ORDERED, that Plaintiffs' Motion for an Award of Attorneys' Fees and Costs Pursuant to 42 U.S.C. § 1988 is GRANTED IN PART AND DENIED IN PART;
IT IS FURTHER ORDERED, that Defendants shall pay Plaintiffs the Maslon law firm's attorneys' fees in the amount of$346,704.84 and costs in the amount of $3,947.75;
IT IS FURTHER ORDERED, that Defendants shall pay Plaintiffs the attorneys' fees of CTR (which includes fees for Patrick Wright) in the amount of $76,418.78 and costs in the amount of$239,681.30;
IT IS FURTHER ORDERED, that Defendants shall pay Plaintiff Kerry Morgan's attorney's fees in the amount of $5,170 and costs in the amount of $75.08;
IT IS FURTHER ORDERED, that Plaintiffs' Motion to Allow Limited
Discovery Related to Fees and Costs is DENIED.

Copies to:
David F. Herr, Esq. Michael E. Rosman, Esq.
Kerry L. Morgan, Esq. Philip J. Kessler, Esq. John Payton, Esq.

iib 4~-~-·
PATRICKJ(DUGGA UNITED STATES DISTRICT JUDGE

 
 2:97-cv-75231-PJD Doc # 282 Filed 08/05/05 Pg 1 of 19 Pg ID 2444

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JENNIFER GRATZ and PATRICK HAMACHER, for themselves and all others similarly situated,
Plaintiffs,
v.
LEE BOLLINGER, ET AL.
Defendants,
and
EBONY PATTERSON, ET AL.
Intervening Defendants. /

Case No. 97-75231 Honorable Patrick J. Duggan

OPINION On October 14, 1997, Plaintiffs Jennifer Gratz and Patrick Hamacher– both of whom are Caucasian– filed this class-action lawsuit asserting that the admissions policy of the University of Michigan’s (“University”) College of Literature, Science, and the Arts (“LSA”) violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000d), and 42 U.S.C. § 1981. Plaintiffs sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that Defendants violated their rights to nondiscriminatory

1

2:97-cv-75231-PJD Doc # 282 Filed 08/05/05 Pg 2 of 19 Pg ID 2445
treatment, an injunction prohibiting Defendants from continuing to discriminate on the basis of race in violation of the Fourteenth Amendment, and an order requiring the LSA to offer Plaintiff Hamacher admission as a transfer student.
In a decision issued on December 13, 2000, this court held the LSA’s admissions policies for the years 1995-1998 unconstitutional. Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000). While the court held that it was proper to consider race in the admissions process in order to achieve diversity in the student body, the court concluded that the LSA’s policy of reserving seats for under-represented minority applicants during those years operated as the functional equivalent of a quota and therefore ran afoul of Regents of the University of California v. Bakke, 438 U.S. 365, 98 S. Ct. 2733 (1978). Gratz, 122 F. Supp. 2d at 832. The court upheld the LSA’s program from 1999 forward, however, finding the school’s consideration of race narrowly tailored to achieve its goal of achieving a diverse student body. Id. at 831. On June 23, 2003, the Supreme Court reversed this court’s holding with respect to the admissions program for 1999 forward, finding the program not narrowly tailored and therefore unconstitutional. Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411 (2003). The Court remanded the action for further proceedings consistent with its opinion. Id.
At a meeting with the parties following the Supreme Court’s decision and remand, the court directed the parties to brief the following issues: (1) whether Plaintiffs have standing to pursue their claims for retrospective relief; (2) if so, what legal standard applies to determine liability; and (3) which party bears the burden of proof with respect
2

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to liability. Damages issues remain with respect to Plaintiffs’ claims for injunctive and prospective relief; however, the court will address those issues at a later date. Some background information is necessary with respect to the issues now before the court.
Factual and Procedural Background Plaintiff Gratz applied for admission to the LSA for the Fall of 1995. On January 19, 1995, the LSA notified her that a final decision regarding her admission had been delayed until early to mid-April 1995, as she was considered by the LSA as “well qualified, but less competitive than those students who ha[d] been admitted on first review.” In other words, Gratz was wait-listed. On April 24, 1995, the LSA notified Gratz that it was not able to offer her admission. Gratz thereafter enrolled in the University of Michigan at Dearborn, from which she graduated in 1999. Plaintiff Hamacher applied for admission into the 1997 class of the LSA. The LSA notified Hamacher on November 19, 1996, that a decision regarding his admission was postponed until mid-April of 1997. Hamacher was told that a decision regarding his admission had been postponed because “although his academic credentials were in the qualified range, they were not at the level needed for first review admission.” On April 8, 1997, the LSA rejected Hamacher and he subsequently enrolled at Michigan State University. The LSA’s admissions programs in 1995 and 1996 were based primarily on a set
3

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of guideline tables referred to as grids, with “GPA 2"1 ranges represented on the vertical axis and ACT/SAT scores represented on the horizontal axis. In 1995, four grids were used: (1) in-state, non-minority applicants; (2) out-of-state, non-minority applicants; (3) in-state, minority applicants; and (4) out-of-state, minority applicants. In 1996 only two grids were used: (1) in-state and legacy applicants and (2) out-of-state applicants. An applicant’s race and/or ethnicity were designated by non-minority applicant action codes listed in the top row of the grid’s cells and minority applicant action codes listed in the bottom row. In 1997, the same grids as in 1996 were used; however, the LSA also added .5 points to under-represented minority applicants’ GPA 2 scores.2
As this court previously found, Gratz v. Bollinger, 122 F. Supp. at 832, the LSA used facially different grids and action codes based solely upon an applicant’s race. Under these differing grids, a certain group of non-preferred applicants were automatically excluded from competing for a seat in the class without any type of individual counselor review based solely on their grades and test scores. In comparison,
1An applicant’s “GPA 2" was calculated by adjusting his or her high school GPA based upon several factors, including the quality of the applicant’s high school, the strength of the applicant’s high school curriculum, any unusual circumstances, the applicant’s geographical residence, and the applicant’s alumni relations, if any.
2As discussed infra, the court previously certified a class; however, that class was certified for injunctive and declaratory relief only. With respect to Plaintiffs’ claims for retrospective relief, no class has been certified. Therefore since Gratz and Hamacher– the only named plaintiffs– applied for admission in 1995 and 1997, respectively, the LSA’s admissions programs post-1997 are not relevant at this time to the issues discussed in this opinion. A description of those programs, however, can be found in this court’s decision of December 13, 2000. Gratz v. Bollinger, 122 F. Supp. 2d at 827.
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preferred minority applicants never were automatically rejected, regardless of their grades and test scores, but instead received some type of individualized counselor review. Thus for example, in 1995 and 1996, a non-minority applicant with a GPA 2 of 2.3-3.3 and an ACT score of 18-20/SAT score of 400-500 would be automatically rejected, whereas a minority applicant with the same grade/score would have received some type of individualized counselor review.
Because admissions for the LSA are determined on a rolling basis, the LSA designates a certain number of seats during the admissions cycle for in-state students and for certain other groups of students, such as athletes, foreign applicants, and underrepresented minority candidates. If these spaces are not filled by qualified candidates from the designated groups toward the end of the admission season, the LSA uses those seats to admit students from the postponed pool or the extended waiting list.
On December 23, 1998, this court issued an Order certifying a class and bifurcating the proceedings into a liability phase and a damages phase. The court certified a class consisting of “those individuals who applied for and were not granted admission to the [LSA] for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that [D]efendants treat[ed] less favorably on the basis of race in considering their application for admission.” See Op. dated 12/23/1998 at 15; see also Gratz v. Bollinger, 122 F. Supp. 2d at 814 n.2. As the court clearly stated in its Order granting class certification, the claims of the class are limited to injunctive and declaratory relief only. Id. The court explained that during the
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liability phase, it would determine “whether Defendants’ use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.” See id.
The parties subsequently filed cross-motions for summary judgment with respect to liability. Plaintiffs asserted that Defendants’ use of race as a factor in admissions to the LSA violated Title VI, Section 1981, and the Equal Protection Clause of the Fourteenth Amendment. Relying on Justice Powell’s opinion in Bakke, 438 U.S. 265, 98 S. Ct. 2733 (1978), Defendants responded that the consideration of race as a factor in admissions decisions might serve a compelling government interest in some cases and the LSA had such an interest in the educational benefits that result from having a racially and ethnically diverse student body. Defendants further argued that the LSA’s admissions policies were narrowly tailored to achieve that interest.
This court concluded that Defendants presented “solid evidence” that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. Gratz, 122 F. Supp. 2d at 822. The court further concluded, however, that the admissions policies Defendants utilized from 1995 through 1998 were not narrowly tailored to achieve that interest. Id. at 831-33. The court reached a different result with respect to the policy Defendants began using in 1999. Id. at 831. Because the court found that the new policy did not utilize rigid quotas, seek to admit a predetermined number of minority students, or establish a two-track system for applicants, the court held that it was narrowly tailored to
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achieve the University’s compelling interest in a diverse student body. Id. at 828-31. Based on these findings, the court granted Plaintiffs’ motion for summary
judgment with respect to the admissions programs in existence from 1995 through 1998, and granted Defendants’ motion with respect to the admissions program from 1999 forward. Id. at 836. Because the court ruled that the current admissions policy was constitutional, it denied Plaintiffs’ request for injunctive relief. Id.
The court subsequently certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U.S.C. § 1292(b). The Sixth Circuit permitted the appeal and granted Plaintiffs’ subsequent motion for initial hearing en banc. The appellate court scheduled oral argument for December 6, 2001, the same day as the hearing in Grutter v. Bollinger– a class-action lawsuit raising identical challenges to the University’s law school admissions policies.
On May 14, 2002, the Sixth Circuit issued its decision in Grutter. 288 F.3d 732 (6th Cir. 2002). In its opinion, the court indicated that it would separately render its decision in Gratz in a “forthcoming opinion.” Id. at 735 n.2 On October 1, 2002, because the Sixth Circuit had not issued an opinion in this case and a petition for writ of certiori from the Supreme Court already was pending in Grutter, Plaintiffs petitioned the Supreme Court for a writ of certiori before judgment. The Supreme Court granted the petition on December 2, 2002. Gratz, 537 U.S. 1044, 123 S. Ct. 602 (2002). The Supreme Court heard separate arguments in Gratz and Grutter on April 1, 2003.
On June 23, 2003, the Supreme Court issued opinions in both cases. Gratz v. 7

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Bollinger, 539 U.S. 244, 123 S. Ct. 2411 (2003); Grutter v. Bollinger, 539 U.S. 982, 124 S. Ct. 35 (2003). As the Supreme Court set forth in its opinion in this case, Plaintiffs raised two arguments in their challenge to this court’s opinion granting summary judgment to Defendants. First Plaintiffs argued that the consideration of race in undergraduate admissions always violates the Fourteenth Amendment unless used to remedy identified past discrimination. Gratz, 539 U.S. at 268, 123 S. Ct. at 2426. Alternatively, Plaintiffs argued that even if the University’s interest in diversity can constitute a compelling state interest, use of race in its admissions program was not narrowly tailored to achieve such an interest. Id.
The Supreme Court rejected Plaintiffs’ first argument, referring to its holding in Grutter that a university’s interest in a racially and ethnically diverse student body is a compelling interest that may justify the consideration of race in the admissions process. Id. at 268-69, 123 S. Ct. at 2426-27 (citing Grutter, 539 U.S. at 328-331, 123 S. Ct. at 2338-41). The Supreme Court agreed with Plaintiffs, however, that the LSA’s admissions program for 1999 forward was not narrowly tailored to achieve that compelling interest. The Court therefore held that the program violated the Equal Protection Clause of the Fourteenth Amendment, Title VI, and Section 1981. Id. at 26975, 123 S. Ct. at 2427-30.
Standing Defendants argue that Gratz and Hamacher lack standing to pursue their claims for prospective relief. Relying on the Supreme Court’s per curiam decision in Lesage v.
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Texas, 528 U.S. 18, 120 S. Ct. 467 (1999), and subsequent cases applying Lesage to nonminority applicants’ challenges to college admissions or government hiring programs, Defendants contend that Gratz and Hamacher only have standing if they can establish that they would have been admitted under a lawful admissions program. Plaintiffs claim they have standing because Defendants’ unlawful admissions policies denied them the right to compete on an equal footing with minority applicants. In other words, regardless of whether they were denied admission as a result of Defendants’ unconstitutional consideration of race or because of their failure to meet other criteria for admission, Plaintiffs argue that they have standing to pursue their claim for retrospective relief simply because their applications were evaluated under an unconstitutional admissions system.
Article III of the Constitution limits federal court jurisdiction to “cases” and “controversies.” U.S. CONST. art. III, § 2. Inherent in this “case” or “controversy” requirement is the doctrine of standing. The question of standing relates to whether a particular plaintiff has alleged a sufficient personal interest in the outcome of a controversy “to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205 (1975). “[T]he fact that ‘a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’” Gratz, 539 U.S. at 289, 123 S.
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Ct. at 2438 (Stevens, J., dissenting)(quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976)). While the doctrine of standing appears straight-forward, it frequently has been identified by judges and commentators as “one of the most confused areas of the law” or alternatively as “a morass of imprecision.” See Erwin Chemerinsky, Federal Jurisdiction, § 2.3 (2d ed. 1994); Comfort v. Lynn Sch. Comm., 150 F. Supp. 2d 285, 295 n.24 (D. Mass. 2001)(quoting New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996)).
Courts and commentators agree, however, that at a constitutional minimum, standing requires a plaintiff to satisfy three things. First, the plaintiff must show that he or she has suffered an “injury in fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992); Aiken v. Hackett, 281 F.3d 516, 519 (6th Cir. 2002). The injury must arise out of “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) ‘actual or imminent, not conjectural or hypothetical.’” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136 (internal citations and quotations omitted). Second, the plaintiff must show a causal connection between the asserted injury and the challenged action of the defendant. Id.; Aiken, 281 F.3d at 519. Third, the plaintiff must show that it is likely that “the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136-37; Aiken, 281 F.3d at 519. A plaintiff must satisfy all three of these requirements for each claim and for each form of relief sought. Donahue v. City of Boston, 304 F.3d 110, 116 (1st Cir. 2002)(citing Adarand Constructors, Inc. v. Pena, 515 U.S. 210-211, 115 S. Ct. 2097, 2104 (1995)).
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To establish standing in a case in which the plaintiff is seeking prospective relief,
the plaintiff need only demonstrate that he or she has been denied the opportunity “to
compete on an equal footing.” Northeastern Fla. Chapter of the Associated Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 2308
(1993). However, to establish standing where a plaintiff is seeking retrospective relief,
the plaintiff must show that he or she would have received the benefit at issue absent the
defendant’s consideration of race. As the Lesage Court stated:
[W]here a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983.
Of course, a plaintiff who challenges an ongoing raceconscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is ‘the inability to compete on an equal footing.’ . . . But 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 alleged discrimination precludes any finding of liability.
528 U.S. at 21, 120 S. Ct. at 468-69.
Following Lesage, the Sixth Circuit in Aiken held that Caucasian police officers
did not have standing to challenge the promotions program for police sergeants used by
the City of Memphis, Tennessee, because the plaintiffs could not show that they would
have received promotions under a race-neutral policy. 281 F.3d 516 (6th Cir.), cert.
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denied sub nom. Ashton v. City of Memphis, 537 U.S. 817, 123 S. Ct. 87 (2002). The
court explained:
If the plaintiffs allege that a racial preference cost them some benefit under a government program, those plaintiffs may have alleged an injury in fact. But if those same plaintiffs cannot also allege and show that “under a race-neutral policy” they would have received the benefit, those plaintiffs have not alleged an injury in fact because they have not alleged an invasion of some interest that the law protects. Texas v. Lesage, 528 U.S. 18, 20, 120 S. Ct. 467 . . . Those plaintiffs lack Article III standing.
Id. at 519. The First Circuit applied the same standing analysis in Donahue v. City of
Boston, 304 F.3d 110 (1st Cir. 2002). As the Donahue court read Lesage, there are
“crucial analytical differences between [a claim for retrospective relief and a claim for
prospective relief]” for standing purposes:
We think that Lesage is a clear cue from the Supreme Court that we cannot apply identical standing analyses to claims for damages and claims for prospective relief. It is equally apparent, in light of Lesage, that the “equal footing” analysis is applied only in claims for the latter type of relief. Our standing inquiry on the claim for damages therefore asks whether [the plaintiff] can demonstrate that, under a raceneutral policy, he would have received the benefit for which he now seeks compensation.
Id. at 116.
This court is bound by the interpretation of Lesage adopted by the Sixth Circuit in
Aiken. Plaintiffs criticize this approach as conflating the standing inquiry with resolution
of the merits. However the court believes that any standing inquiry overlaps significantly
with a resolution of the merits of the plaintiff’s case, as standing always requires a litigant
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to show that he or she is entitled to relief in order to “walk through the courthouse door.” Lesage clearly holds that to be entitled to retrospective relief in a case such as this one, the relevant injury-in-fact is not the ability to compete on an equal footing, but rather the applicant’s ability to succeed absent the unlawful conduct. What proof a litigant must offer to establish his or her standing depends on the stage in the proceedings at which a challenge to his or her standing is raised.
As the Eleventh Circuit explained in Bischoff v. Osceola County, 222 F.3d 874 (2000), “each element of standing ‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.’” Id. at 878 (quoting Lujan, 504 U.S. at 561, 112 S. Ct. at 2136). Therefore, as the Bischoff court further explained:
[W]hen standing becomes an issue on a motion to dismiss, general factual allegations of injury resulting from the defendant’s conduct may be sufficient to show standing. However, when standing is raised at the summary judgment stage, the plaintiff can no longer rest on ‘mere allegations.’ [Lujan, 504 U.S.] at 561, 112 S. Ct at 2137. Instead, the plaintiff must “ ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . . which for purposes of the summary judgment motion will be taken to be true.” Id. In Aiken and Donahue, the courts addressed the plaintiffs’ standing in the context of motions for summary judgment. Finding no factual dispute with respect to whether the plaintiffs’ rejections were on account of the defendants’ use of racial preferences, the courts granted summary judgment to the defendants based on the plaintiffs’ lack of
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standing. See also Cotter v. City of Boston, 323 F.3d 160 (1st Cir. 2003)(granting summary judgment to the defendant based on the plaintiffs’ inability to prove standing as the city’s race-neutral ranking system resulted in plaintiffs being so far down the applicant list that their applications were not impacted when the city departed from rank order in order to promote more minority candidates). At this time in the present case, however, no summary judgment is pending and Plaintiffs have alleged facts in their complaint to support the necessary requirements of standing under Aiken. See Compl. ¶¶ 25-26.
As discussed previously, Defendants are correct that Plaintiffs must prove each element of standing. If Defendants file a motion for summary judgment challenging Plaintiffs’ standing, the Court will apply Aiken’s analysis to determine whether Plaintiffs have standing. As Aiken holds, Plaintiffs must “allege and show that ‘under a raceneutral policy’ they would have received the benefit” [i.e. admission]. 281 F.3d at 519. If the court finds a genuine issue of fact with respect to the three requirements necessary for Plaintiffs to establish standing or if Defendants do not file a motion, the court only will consider whether Plaintiffs have met their burden– as the First Circuit suggested in Donahue– when Plaintiffs ultimately set forth evidence to establish Defendants’ liability. 304 F.3d at 119.
Standard for Assessing Liability and the Applicable Burden of Proof Plaintiffs successfully demonstrated that the LSA’s admissions policies were unconstitutional. This finding, however, does not necessarily lead this court to find that
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Defendants are liable to Plaintiffs on their claims for retrospective relief. To determine Defendants’ liability, the court must consider the relevant injury and test for liability set forth in Lesage. As the Supreme Court held in that case, when a plaintiff seeks retrospective relief, the relevant injury for determining the defendant’s liability is whether or not the plaintiff would have received the benefit at issue absent the defendant’s unlawful consideration of certain criteria such as race. Id. at 21, 120 S. Ct. at 468.
As Mt. Healthy provides, Plaintiffs must establish by a preponderance of the evidence that Defendants’ unconstitutional consideration of race played at least “a substantial factor” or a “motivating factor” in the rejection of Plaintiffs’ applications. Mt. Healthy, 429 U.S. at 287, 97 S. Ct. at 576 (emphasis added); see also Blalock v. Metals Trades, Inc., 775 F.2d 703, 712 (6th Cir. 1985). If Gratz and Hamacher are able to make this showing, Defendants may avoid liability by demonstrating that the University would have reached the same decision with respect to their applications if it had not used the admissions policy the Supreme Court deemed unconstitutional.
Plaintiffs and Defendants agree that Mt. Healthy’s burden shifting framework is the proper framework for analyzing Plaintiffs’ claims for retrospective relief. Plaintiffs assume, however, that they already have proven Defendants’ liability by showing that their applications were subjected to race-conscious considerations during the admissions process. Plaintiffs therefore argue that the burden now is upon Defendants to show that Plaintiffs would have been rejected even absent the LSA’s unlawful consideration of race.
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Defendants, on the other hand, contend that Plaintiffs have not established all the elements necessary to satisfy their initial burden under Mt. Healthy. The court agrees with Defendants.
In Mt. Healthy, the Supreme Court describes the test for liability as follows: 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 [defendant’s] decision not to rehire him. [Plaintiff] having carried that burden, however, the [d]istrict [c]ourt should have gone on to determine whether the [defendant] had shown by a preponderance of the evidence that it would have reached the same decision as to [plaintiff’s] reemployment even in the absence of the protected conduct.
Mt. Healthy, 429 U.S. at 287, 97 S. Ct. at 576 (emphasis added). In Blalock, the Sixth Circuit summarized the plaintiff’s burden in the context of a race discrimination claim as: “Under Mt. Healthy, a plaintiff must show by a preponderance of the evidence that his race . . . was a ‘motivating factor’ in the employer’s decision to discharge him.” Blalock, 775 F.2d at 712. Only then does the burden shift to the defendant “to prove that the adverse employment action would have been taken even in the absence of the impermissible motivation and that, therefore, the discriminatory animus was not the cause of the adverse employment action.” Id. Citing to Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), Plaintiffs argue that they have met their initial burden under this framework.
In Hopwood, the Fifth Circuit determined that the plaintiff satisfied his burden to establish liability under Mt. Healthy’s framework because there was no question that the
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plaintiff had been denied the opportunity to compete on an equal footing. Id. The court
made this determination, however, without the benefit of the Supreme Court’s subsequent
instruction in Lesage that courts must distinguish between retrospective claims for
damages and forward-looking claims for injunctive relief in determining the relevant
injury that a plaintiff must establish. As the Lesage Court further instructed, the plaintiff
seeking retrospective relief must show that the defendant’s use of unlawful racial
preferences was a “motivating factor” or “substantial factor” in its denial of the plaintiff’s application.3 Because Hopwood preceded Lesage, the Court does not find it persuasive.
The court in Johnson v. Board of Regents of University System of Georgia, 106 F. Supp.
2d 1362 (S.D. Ga. 2000), relied on Hopwood and therefore also incorrectly identified the
relevant injury in fact when a plaintiff seeks retrospective relief. Thus the court does not
find it persuasive, as well.
Plaintiffs in this case have yet to show by a preponderance of the evidence or
otherwise that the LSA’s consideration of race was a “motivating” or “substantial” factor
3It is interesting to note the district court’s comments on remand in Hopwood with respect to the Fifth Circuit’s interpretation of the plaintiffs’ burden of proof under Mt. Healthy. See Hopwood, 999 F. Supp. 872, 883 (W.D. Tex. 1998). Without the benefit of the Supreme Court’s decision in Lesage– which was issued the following year– Judge Sparks believed the plaintiffs should have been required to prove that they were denied some right or benefit as a direct result of the defendant’s use of unlawful racial preferences. Id. Although recognizing his obligation to follow the Fifth Circuit’s ruling, Judge Sparks wrote: “The Fifth Circuit’s analysis in this regard was incomplete at best; at worst, it was a misapplication of the Mt. Healthy framework because it presupposed that race was a substantial or motivating factor in every nonminority applicant’s denial of admission to the law school in 1992, regardless of the applicant’s qualifications to enter law school. As a matter of common sense and rudimentary mathematics, that cannot be the case.” Id.
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in their rejections. Plaintiffs have shown that they were sufficiently qualified to make the LSA’s waiting list. At this point, however, Plaintiffs have not established– nor has there been any need for them to do so– that but for the LSA’s consideration of race they would have been accepted immediately instead of being placed on the waiting list or that they eventually would have been selected for an opening in the freshman class. The LSA receives applications from many more qualified non-minority applicants than it has spaces to fill in its freshman classes. Thus even if the LSA rejected all non-minority applicants at the outset, it appears it still would not be able to offer a slot in its freshman class to every qualified non-minority applicant. For that reason, the court cannot presume that every qualified, non-minority applicant was rejected because of the LSA’s consideration of race in its admissions programs.
In short, while Plaintiffs have demonstrated that the LSA’s admissions policies were unconstitutional, they have not demonstrated their entitlement to retrospective relief as a result of this unconstitutional conduct. To establish Defendants’ liability, Mt. Healthy clearly provides that Plaintiffs initially must prove by a preponderance of the evidence that they were injured– i.e. denied admission to the LSA– and that Defendants’ unlawful conduct was a substantial or motivating factor in their rejection. Mt. Healthy, 429 U.S. at 287, 97 S. Ct. at 576. The fact that Hamacher’s and Gratz’ race may have been considered in the application process is not enough to demonstrate Defendants’ liability.
The court believes its above analysis addresses the three issues the court directed 18

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the parties to brief, including the legal standard applicable to Defendants’ burden under

Mt. Healthy in light of the Supreme Court’s holding.

SO ORDERED.

Date: August 5, 2005
Copies to: Kirk O. Kolbo, Esq. Michael E. Rosman, Esq. Kerry L. Morgan, Esq. Leonard M. Niehoff, Esq.

___________________________ s/PATRICK J. DUGGAN UNITED STATES DISTRICT JUDGE

19

 
 135 F.Supp.2d 790 United States District Court,
E.D. Michigan, Southern Division.
Jennifer GRATZ and Patrick Hamacher, for themselves and all others similarly situated,
Plaintiffs, v.
Lee BOLLINGER, James J. Duderstadt, the Board of Regents of the University of Michigan, Defendants, and
Ebony Patterson, Ruben Martinez, Laurent Crenshaw, Karla R. Williams, Larry Brown, Tiffany Hall, Kristen M.J. Harris, Michael Smith, Khyla Craine, Nyah Carmichael, Shanna Dubose, Ebony Davis, Nicole Brewer, Karla Harlin, Brian Harris, Katrina Gipson, Candice B.N. Reynolds, by and through their parents or guardians, Denise Patterson, Moise Martinez, Larry Crenshaw, Harry J. Williams, Patricia Swan–Brown, Karen A. McDonald, Linda A. Harris, Deanna A. Smith, Alice Brennan, Ivy Rene Charmichael, Sarah L. Dubose, Inger Davis, Barbara Dawson, Roy D. Harlin, Wyatt G. Harris, George C. Gipson, Shawn R. Reynolds, and Citizens for Affirmative Action’s
Preservation, Defendant–Intervenors.
No. 97–CV–75231–DT. | Feb. 26, 2001.
In action challenging constitutionality of state university’s admissions programs for its college of literature, science, and the arts, the District Court, Duggan, J., held that college’s race-conscious admissions policies were not a narrowly tailored means of achieving compelling governmental interest of remedying the present effects of past discrimination and therefore violated equal protection clause.
Plaintiffs’ motion for summary judgment granted.
Attorneys and Law Firms
*791 Kerry L. Morgan, Pentiuk & Couvreur, Taylor, MI, Kirk O. Kolbo, David F. Herr, *792 Maslon, Edelman, Borman & Brand, Minneapolis, MN, Godfrey J. Dillard, Detroit, MI, for plaintiffs.
Philip J. Kessler, Okemos, MI, John A. Payton, Jane Sherburne, Wilmer, Cutler & Pickering, Washington, D.C., Leonard M. Niehoff, Butzel & Long, Ann Arbor,

MI, Richard A. Wilhelm, Dickinson Wright, Detroit, MI, Susan I. Leffler, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, Kenneth S. Geller, Mayer Brown & Platt, Washington, D.C., Jeffrey S. Silver, Ann Arbor, MI, for Defendants.
Opinion
OPINION
DUGGAN, District Judge.
On October 14, 1997, Plaintiffs filed a class action against the University of Michigan and various University officials asserting that the University had violated Title VI of the Civil Rights Act, as well as the Equal Protection Clause of the Fourteenth Amendment, by considering race as a factor in admissions decisions at its College of Literature, Science, and the Arts (“LSA”). On December 13, 2000, this Court issued an Opinion addressing only the University Defendants’ arguments that the LSA’s admissions programs pass constitutional muster as a narrowly tailored means of achieving diversity, see Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D.Mich.2000), reserving Defendant–Intervenors’ argument that the LSA’s admissions programs pass constitutional muster as narrowly tailored means of remedying past and current discrimination by the University for later consideration. This Opinion shall address the Defendant–Intervenors’ arguments.
Discussion
[1] As explained in the Court’s prior Opinion in this matter, racial classifications are subject to the strictest of scrutiny, under which “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995). In opposition to Plaintiffs’ motion for summary judgment, Defendant–Intervenors contend that the LSA’s admissions programs “serve[ ] the uncontroverted compelling interest in remedying LS & A’s past and current discrimination against minorities.” (Def.–Intervenors’ Resp. Pls.’ Renewed Mot. Summ. J. at 2–3). In particular, Defendant–Intervenors contend that the University’s race-conscious admissions policies serve to “remedy the present effects of discrimination that it has caused or tolerated; remedy the negative racial climate

that it has sustained or that has been caused by others on the campus; and, remedy or off-set the effects of any current discrimination in which it is engaged.” (Id. at 5).
[2] [3] In a proper case, racial classifications may be justified by a State’s interest in remedying the effects of past or present “identified” discrimination. Shaw v. Hunt, 517 U.S. 899, 909, 116 S.Ct. 1894, 1902, 135 L.Ed.2d 207 (1996) (citing Croson, 488 U.S. at 498–506, 109 S.Ct. at 724–28, 102 L.Ed.2d 854). To rise to the level of “compelling,” however, such an interest must meet two conditions. “First, the discrimination must be ‘identified discrimination.’ ”1 Id. (citing *793 Croson, 488 U.S. at 499, 500, 505, 507, 509, 109 S.Ct. at 724–25, 725, 728, 729, 730). While states and their subdivisions may take remedial action when they possess evidence of past or present discrimination, “ ‘they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief.’ ” Id. (quoting Croson, 488 U.S. at 504, 109 S.Ct. at 727). “Second, the institution that makes the racial distinction must have had a ‘strong basis in evidence’ to conclude that remedial action was necessary, ‘before it embarks on an affirmative-action program.’ ” Id. at 910, 116 S.Ct. at 1903 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 106 S.Ct. 1842, 1848, 90 L.Ed.2d 260 (1986) (plurality opinion) (emphasis added)).
[4] “A generalized assertion of past discrimination in a particular industry or region is not adequate because it ‘provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy.’ ” Id. at 909, 116 S.Ct. at 1902–03 (quoting Croson, 488 U.S. at 498, 109 S.Ct. at 724 (O’Connor, J.)). For this reason, the Supreme Court has repeatedly stated that “an effort to alleviate the effects of societal discrimination is not a compelling interest.” Id. at 909–10, 116 S.Ct. at 1903 (citing Wygant, 476 U.S. at 274–75, 276, 288, 106 S.Ct. at 1847–48, 1854).
[5] When the race-based classifications of an affirmative action plan are challenged, “the proponents of the plan have the burden of coming forward with evidence providing a firm basis for inferring that the ... identified discrimination in fact exists or existed and that the race-based classifications are necessary to remedy the effects of the identified discrimination.” Contractors Ass’n of E. Pa. v. Philadelphia, 91 F.3d 586, 597 (3d Cir.1996); see also Concrete Works of Colo. v. Denver, 36 F.3d 1513, 1521–23 (10th Cir.1994). Once this burden of production has been met, “the opponents of the program must be permitted to attack the tendered evidence and offer evidence of their own tending to show that the identified discrimination did or does not exist and/or that the means chosen as a remedy do not ‘fit’ the identified discrimination.” Id. Ultimately, the plaintiffs

challenging the program retain the burden of persuading the court that a violation of the Equal Protection Clause has occurred by either persuading the court that the race-based preferences were not intended to serve the asserted compelling interest, or that there is no strong basis in the evidence as a whole to support the defendant’s conclusion that the identified discrimination actually existed, or that the continuing effects of such discrimination necessitated the chosen remedy. Id.
The significance of the burden of persuasion differs depending upon which path the plaintiff chooses to pursue. If the plaintiff’s theory is that the race-based preferences were adopted with an intent unrelated to remedying past discrimination, “the plaintiff has the burden of convincing the court that the identified remedial motivation is a pretext and that the real motivation was something else.” Id. *794 “The ultimate issue under this theory is one of fact, and the burden of persuasion on that ultimate issue can be very important.” Id. at 597–98.
When the plaintiff proceeds under the theory that, “although the [defendant] may have been thinking of past discrimination and a remedy therefor, its conclusions with respect to the existence of discrimination and the necessity of the remedy chosen have no strong basis in evidence,” the plaintiff bears the burden of persuading the court that the facts alleged as support for the defendant’s conclusions are not accurate. Id. at 598. Under this approach, “[t]he ultimate issue as to whether a strong basis in evidence exists is an issue of law” and, therefore, “[t]he burden of persuasion in the traditional sense plays no role in the court’s resolution of that ultimate issue.” Id.
[6] Defendant–Intervenors assert that the University’s race-conscious admissions policies serve to “(1) remedy the present effects of practices of LS & A that have served to exclude African Americans and Latinos from enrollment, (2) provide a critical mass of students to remedy LS & A’s hostile racial climate, and (3) remedy the discriminatory effects of LS & A’s current admissions criterion.” (Def.–Intervenors’ Resp. Pls.’ Renewed Mot. Summ. J. at 7).
1. The “Actual” Purpose Behind the LSA’s Race–Conscious Admissions Programs Plaintiffs initially assert that the Court should reject Defendant–Intervenors’ arguments because it is clear from the University Defendants’ extensive briefing on this issue that the “actual purpose” behind the University’s race-conscious admissions policies was not to remedy past or present discrimination, but rather, to achieve “diversity.” (Pls.’ 8/24/00 Br. at 2–7). According to Plaintiffs, “neither the University nor the intervenors

even pretend that the University was actually motivated by the interests that intervenors ask this Court to consider. The remedial justifications are just rationales that the intervenors believe the University might have chosen to adopt to justify their discriminatory admissions policies.” (Id. at 5) (emphasis in original).
The Supreme Court has cautioned that when engaging in an Equal Protection analysis, the Court must look behind a defendant’s “articulated” reason to determine whether there is sufficient evidence to conclude that the “articulated” reason is genuine, i.e., that the articulated reason actually motivated the race-conscious program or policy. See, e.g., Shaw, 517 U.S. at 910, 116 S.Ct. at 1902; Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 728, 102 S.Ct. 3331, 3338, 73 L.Ed.2d 1090 (1982). When conducting such an inquiry, the Court does not look behind the “articulated” interest to decipher for itself whether there were other justifiable reasons that may have supported the race-conscious program. “[A] racial classification cannot withstand strict scrutiny based upon what ‘may have motivated the [State].’ ” Shaw, 517 U.S. at 908 n. 4, 116 S.Ct. at 1902 n. 4. The state actor must show that the alleged objective was the “actual purpose” for the discriminatory classification. Id.
In allowing Defendant–Intervenors to join this action, the Sixth Circuit found it persuasive “that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy.” Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir.1999). The Court shall interpret the Sixth Circuit’s statement as an indication that although the University Defendants *795 have never claimed that the LSA’s race-conscious admissions programs were implemented to remedy past or present discrimination, Defendant–Intervenors should be given the opportunity to present evidence that remedying discrimination was the “actual” purpose behind the LSA’s admissions programs.
According to Defendant–Intervenors, “[d]espite the University’s sole reliance on Bakke’s diversity rationale in this litigation, the record quite clearly shows that the University was motivated by both diversity and remedial purposes in adopting its affirmative action program.” (Def.–Intervenors’ 9/1/00 Sur–Reply at 5). It is not enough, however, that remedial measures “may have” motivated the LSA in adopting the challenged admissions programs. As part of their burden, Defendant–Intervenors must establish that remedial measures “actually” motived the challenged race-conscious programs. See Shaw, 517 U.S. at 908 n. 4, 116 S.Ct. at 1902 n. 4.

In this Court’s opinion, Defendant–Intervenors have failed to present any evidence that the discrimination alleged by them, or the continuing effects of such discrimination, was the real justification for the LSA’s race-conscious admissions programs. Although not dispositive, the University Defendants have never claimed that the challenged programs were implemented as a means to remedy past discrimination. See Hogan, 458 U.S. at 727 n. 16, 102 S.Ct. at 3339 n. 16 (stating that even if court were to assume discrimination had occurred, challenged policy would nonetheless be invalid because the state failed to establish that the legislature “intended” the challenged policy to compensate for any perceived discrimination); Lutheran Church–Mo. Synod v. F.C.C., 141 F.3d 344, 354 (D.C.Cir.1998) (rejecting interest asserted by Department of Justice in support of F.C.C. administrative regulation because “[a]s the independent agency which promulgated the regulation in question, [the F.C.C.’s] view of the government interest it was pursuing must be accepted”).
Furthermore, the terms of the admissions policies themselves indicate that they were developed to achieve diversity, not as a means to remedy discrimination. For example, the 1997 guidelines refer to “students who meet the spirit of contributing to a diverse class.” (Pls.’ 4/9/99 Exs., Ex. AA at ¶ F.1) (emphasis added). The 1998, 1999, and 2000 admissions guidelines state that “[a]dmission is based on several factors that combine to produce a freshman class that provides a mixture of attributes and characteristics valued by the University,” and that it is the University’s “sincere belief that this mixture contributes to the education of our students, as well as fulfills the University’s mission to prepare society’s future citizens and leaders.” (Pls.’ 4/9/99 Exs., Ex. DD at ¶ I.B.4 & Ex. EE at 1 (1998); Kolbo Aff., Ex. A at ¶ I.B.4 & Ex. B at 1 (1999); Ex. C at ¶ I.B.4 & Ex. D at 2 (2000) (emphasis added)). The guidelines also state that the University was “committed to an educational experience that involves students interacting with other students of different races and ethnicities than their own.” (Pls.’ 4/9/99 Exs., Ex. EE at 7 (1998); Kolbo Aff., Ex. A at ¶ I.B.4 & Ex. B at 1 (1999); Ex. C at ¶ I.B.4 & Ex. D at 2 (2000)).
Moreover, Defendant–Intervenors acknowledge that the admissions policies at issue were a result of the Michigan Mandate. (Def.–Intervenors’ 9/1/00 Sur–Reply at 7). President Duderstadt has “described the Michigan Mandate as an attempt to better respond to the diversity of the nation and the world, by trying to change the nature of the institution itself *796 so that all ethnic groups could be brought fully into the life and leadership of the institution,” and enacted “with the goal of building a multicultural learning community which values, respects, and draws intellectual strength from the rich diversity of people of different races.” (Pls.’ 6/1/99 Exs., Exs. H & I).

In a series of letters written in 1995, President Duderstadt explained the Michigan Mandate as the University’s “commitment to make the University of Michigan a national and world academic leader in the racial and ethnic diversity of its faculty, students, and staff,” and repeatedly referred to the University’s efforts to “achieve diversity,” “better reflect ethnic, racial, and socioeconomic diversity,” and “to build a richly diverse community of students.” (Pls.’ 6/1/99 Exs., Exs. D, E, & F) (emphasis added).
The fact that none of the evidence cited by Defendant–Intervenors even discusses past or present discriminatory conduct toward Native Americans is further evidence that the University’s race-conscious admissions policies were not designed with a remedial purpose in mind. See Croson, 488 U.S. at 506, 109 S.Ct. at 728 (stating that the “random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination ... suggests that perhaps the city’s purpose was not in fact to remedy past discrimination”). The justifications for a suspect policy or program must be “genuine, not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. at 533, 116 S.Ct. at 2275.
“[A] tenable justification must describe actual state purposes, not rationalizations for actions differently taken.” Id. at 535, 116 S.Ct. at 2277. Defendant–Intervenors have presented no evidence that the LSA’s race-conscious admissions programs were enacted to counter the present effects of past discriminatory policies or the discriminatory impact of the other SCUGA factors. To the contrary, all of the evidence supports the conclusion that the University’s race-conscious admissions programs were specifically designed for the purpose advanced by the University Defendants, i.e. racial and ethnic diversity. Therefore, even if the Court were to assume that the alleged discrimination or continuing effects thereof exists today, Defendant–Intervenors’ argument would nonetheless fail as there is no evidence that the LSA’s race-conscious admissions programs were actually put in place to remedy such discrimination. See Hogan, 458 U.S. at 727 n. 16, 102 S.Ct. at 3339 n. 16.
2. The University’s History of Discrimination Conversely, even if Defendant–Intervenors had presented evidence that the LSA’s race-conscious admissions programs were actually implemented in an effort to remedy past or current discrimination, Defendant–Intervenors’ argument would nonetheless fail because Defendant–Intervenors have failed to establish a genuine issue of fact as to whether the identified

discrimination in fact exists or existed, as well as whether

the race-conscious admissions policies are necessary to

remedy such discrimination. Defendant–Intervenors assert

that the LSA’s consideration of race in admissions

decisions “serves compelling interests in remedying the

continuing effects of long-standing discrimination at the

University.” (Id. at 6). According to

Defendant–Intervenors, “Professor James Anderson’s

expert report and other evidence in the record establish

that since its founding, the University has engaged in

racially discriminatory and exclusionary practices against

minorities.”

(Id.

at

7).

Specifically,

Defendant–Intervenors contend that:

*797 The record shows that the

University tolerated the presence of

a few minorities, but that it refused

to integrate them meaningfully into

campus life, establishing racially

segregated housing, maintaining

segregated fraternities and

sororities, and—when the

University finally permitted

African–American students to live

on

campus

in

dormitories—acquiescing to white

students who refused to room with

them. Through the years and to the

present, minority students have

struggled to maintain their presence

on campus, enduring racial

incidents on campus and in

classrooms, from other students,

faculty and staff. The University,

even after receiving these

complaints and corroborating

student experiences, either refused

to act, or did so in a woefully

inadequate manner.

(Id. at 7).

In his expert report, Professor James Anderson, Head of the Department of Educational Policy Studies and Professor of History at the University, recounts the history of the University from 1817 to the present. According to Professor Anderson, although the University was founded in 1817, it was not until 1868 that the first African American students were enrolled, and up until 1930, African Americans were systematically excluded from University-owned housing. (Anderson Rep. at 3–10). On-campus housing remained segregated up until the 1960s.

Moreover, despite the fact the Michigan Civil Rights Congress had called for an end to discriminatory clauses

in the constitutions and by-laws of all campus organizations in 1949, and in 1952 the Committee on Student Affairs accepted a proposal to eliminate discriminatory clauses in fraternity and sorority by-laws, then University President Harlan Hatcher rejected such proposals and allowed student organizations to continue to prohibit membership based on race, religion, or color. (Id. at 5). According to one observer, as of 1959, no fraternity had ever accepted an African American student. (Id. at 11). Through the late 1950’s, the University refused to integrate its housing by continuing its policy of respecting students’ wishes who did not wish to live with a student of another race. (Id. at 7).
In 1966, the Defense Department conducted an investigation of the University’s compliance with Title VI of the Civil Rights Act of 1964, ultimately urging the University to increase its enrollment of African American students, faculty, and staff. (Id. at 9). In 1967, the University’s first black professor, Professor Albert Wheeler, wrote a letter to then Vice Presidents Allan Smith and Frank Pierpont expressing his fear that the University had developed an “unfavorable image” among the African American community. (Id. at 15). During her deposition, a 1971 graduate of the LSA recounts how University staff actively discouraged her from applying to the LSA, and that one admissions counselor specifically told her that “community college might be better suited for [her].” (Glenn Dep. at 10).
During the 1970s, minority students often voiced their concern regarding the University’s failure to address campus racism and to increase minority enrollment. (Anderson Rep. at 17–19). According to Defendant–Intervenors, throughout the 1970s and 1980s, the University “continued to tolerate racial tensions on campus that had a devastating effect on minority enrollment, and minority participation and sense of belonging on campus.” (Def.–Intervenors’ Br. Resp. Pls.’ Mot. Summ. J. at 13; Anderson Rep. at 32–34). Racial tension in the dorms became widely publicized in the early 1970s. (Anderson Rep. at 35). “Both University officials and students acknowledge[d] *798 the severity of racial tensions within the dormitory system, and the inadequacy of any attempt to improve them.” (Id.).
A 1980 study of African American students at the University revealed that eighty-five percent of the students surveyed had encountered racial discrimination while at the University, ninety percent wanted more African American students at the University, and over sixty percent stated they had little or no contact with African American faculty and staff. (Id. at 52). Expert Dr. Joe R. Feagin, Ph.D., a graduate research professor in sociology at the University of Florida, also reports that a 1980 survey of more than two hundred black

undergraduates at the University of Michigan revealed that “most had faced verbal and other racial harassment since arrival” at the University, mostly comprised of “total avoidance by white students and subtle actions or statements with racist overtones.” (Feagin Rep. at 9). Between 1976 and 1985, the University suffered a drastic decline in minority enrollment, losing 34 percent of its African American students. Niara Sudakasa, Report on Minorities, Handicappers and Women in Michigan’s Colleges and Universities at 10 (1986).
From 1986 to 1987, a number of racist events occurred at the University, including the distribution of racist fliers, vandalism in the minority lounge, and racist jokes broadcast over the University’s campus radio station. (Anderson Rep. at 62; Ransby Dep. at 19–21, 33–34). An investigation resulted in a report recognizing that African American students at the University were “likely to be subjected to ridicule, abuse, and threat,” as well as “instructors who make openly racist comments, inside and outside of class,” and that the radio broadcasts were “only a symptom of a pervasive atmosphere on this campus.” (Anderson Rep. at 63–64).
In 1995, students continued to voice concerns regarding racism on the University’s campus, citing incidents in which racist messages were scrawled on walls and sent via e-mail. (Anderson Rep. at 74–75). Professor Anderson, however, also reports that “[g]eneral perceptions of racial climate on campus among students of color have become more positive,” and that a 1994 study revealed that “students of color in general do not perceive tremendous tension, nor do White students feel overwhelmed by hostility from students of color.” (Id. at 76–77). According to Professor Anderson, “perceptions of racial climate, particularly in the residence halls, are significantly more positive in the post Michigan Mandate era.” (Id. at 77).
Dr. Feagin also reports of “several dozen complaints by black students and staff at the University” describing racist incidents from 1990 through 1999, including racist graffiti, racially derogatory remarks, white supremacist group lettering, racist slurs by whites on or near campus, racist e-mail messages, and racist literature. (Feagin Rep. at 9–10). Dr. Feagin attributes the University’s racially hostile environment to white students (Id. at 14–18), white professors’ perceived attitudes toward minority students (Id. at 21–23), negative experiences with campus security personnel (Id. at 24–26) (see also Def.–Intervenors’ 8/11/00 Exs., Vol. IV, Ex. 7), and negative experiences with other white staff members (Id. at 27–28).
It is also Dr. Walter Allen’s expert opinion that “African American and Latino/Hispanic students regularly

experience racial incidents on the [University’s] campus” and “describe a hostile racial environment.” (Allen Rep. at 13). According to Dr. Allen, African American and Latino students report being the subject of racial *799 stereotypes in the classroom and that “white faculty and white students avoid interacting with them outside of class.” (Id . at 14). Defendant–Intervenors have also presented portions of deposition testimony from several past and present minority students, who have each recounted incidents in which they have experienced racial hostility or stereotyping by other students or faculty members. (Def.–Intervenors’ 8/11/00 Exs., Vol. IV, Exs. 1–6).

3. Present Effects of the University’s Prior Discrimination As an initial matter, the Court notes that Defendant–Intervenors have presented the Court with no evidence that the University or the LSA ever facially discriminated against minorities in admissions decisions. There is absolutely no evidence that minorities were ever outright excluded from admission to the University; nor is there any evidence that the University’s past admissions programs had a discriminatory impact on minority applicants.

Furthermore, with the exception of racial hostility, which

Defendant–Intervenors have presented evidence of well

into the 1990s, all of the University’s allegedly

discriminatory

conduct

cited

by

the

Defendant–Intervenors, i.e. segregated housing,

segregated fraternities, and policies allowing

non-minority students to refuse to room with minority

students, occurred years before the challenged admissions

policies were put in place. Where the identified

discrimination has occurred in other than the immediate

past, “the inquiry into the legitimacy of a race-based

classification turns to the state’s basis for finding

continuing effects of such past discrimination.”

Podberesky v. Kirwan, 956 F.2d 52, 56 (4th Cir.1992),

vacated on other grounds, 38 F.3d 147 (4th Cir.1994);

Wygant, 476 U.S. at 280, 106 S.Ct. at 1850; Fullilove v.

Klutznick, 448 U.S. 448, 480, 100 S.Ct. 2758, 2775, 65

L.Ed.2d 902 (1980) (“We recognize the need for careful

judicial evaluation to assure that any ... program that

employs racial or ethnic criteria to accomplish the

objective of remedying the present effects of past

discrimination is narrowly tailored to the achievement of

that goal.”). According to Defendant–Intervenors, “[t]he

continuing effects of the discrimination against minority

students is evident in the fact that students of color,

understandably concerned with the school’s reputation for

discrimination and racial insensitivity, may be deterred

from applying.” (Def.–Intervenors’ Br. Resp. Pls.’

Renewed Mot. Summ. J. at 17) (emphasis added).
As evidence that the University’s prior discriminatory policies have continually deterred African Americans from attending the University, Defendant–Intervenors cite the fact that as the percentage of African Americans graduating high school in Michigan rose from 8.9% in 1976 to 10.97% in 1983, the percentage of African Americans enrolled at the LSA decreased from 7.2% to 5.14%. (Id. at 18).
As the Supreme Court has recognized, reliance on statistical disparities to establish a prima facie pattern or practice of discriminatory conduct is not appropriate where special qualifications are required. See Croson, 488 U.S. at 501, 109 S.Ct. at 726 (“But it is equally clear that when special qualifications are required to fill a particular job, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.”) (internal quotation omitted). “[W]here special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task.” Id. at 501–02, 109 S.Ct. at 726. Defendant–Intervenorssssssss *800 s have presented no evidence regarding the number of African Americans graduating high school in 1976 or 1983 that were qualified to attend the University, nor, more importantly, the number of high school graduates even interested in attending college.
Furthermore, the Court finds Defendant–Intervenors’ statistical data from 1976 and 1983 to be of little probative value with respect to whether such policies served to deter African American and other minority students from applying to the University in 1995 when the first of the challenged admissions programs was implemented. As Defendant–Intervenors themselves acknowledge, “[t]he years after the passage of the Civil Rights Act of 1964 saw a marked increase in the number of African American students attending the University.” (Id. at 10). Although there were only approximately thirty-five African Americans enrolled at the University in 1935, in 1966, African American students constituted 1.2 percent of the University’s 32,000 student population, 3.5 percent in 1970, 6.8 percent in 1972, and 7.1 percent in 1990. The fact that the percentage of minority students attending the University has steadily increased tends, in this Court’s opinion, to indicate that any deterrent effect the University’s prior discriminatory policies and practices may have had has dwindled in recent times.
Defendant–Intervenors also assert that “[t]he parents of the children who present themselves for admissions to Michigan today, did not have the economic and social

advantage gained from attending an institution such as Michigan, and thus cannot pass on the full range [of] advantages to their children that many white parents, who are more likely to have attended Michigan, can.” (Def.–Intervenors’ Br. Resp. Pls.’ Renewed Mot. Summ. J. at 18). Defendant–Intervenors, however, have provided no link between any particular identified discrimination on behalf of the University and the social or economic disadvantage of such parents. As previously discussed, generalized assertions of past discrimination in a particular spectrum, such as college admissions, or of societal discrimination, do not provide a strong basis for engaging in remedial action. See Shaw, 517 U.S. at 909–10, 116 S.Ct. at 1902–03.
Although Defendant–Intervenors frame their argument in terms of remedying the continuing effects of the University’s prior discrimination, it is clear from the evidence cited by Defendant–Intervenors that the alleged deterrence stems from the past and current racial hostility on campus and/or the University’s alleged acquiescence in such hostility, not from any “identified” discrimination by the University itself. Accordingly, the Court rejects Defendant–Intervenors’ contention that the University has a compelling interest in remedying any present effects of its own past discrimination.
4. The University’s Past and Current Hostile Racial Climate Defendant–Intervenors have presented ample evidence that minority students at the University have been, and continue to be subjected to, racial hostility, stereotyping, and isolation. According to Defendant–Intervenors, “[t]his hostile environment is perpetuated by various aspects of the University community, including other students, University staff, and professors.” (Def.–Intervenors’ Br. Resp. Pls.’ Renewed Mot. Summ. J. at 19). As Defendant–Intervenors explain, “[b]y increasing the numbers of African–Americans and Latinos, race-conscious admissions provides the critical mass of minority students required to remedy this negative social climate *801 and the detrimental isolation that they experience.” (Id.).
According to Defendant–Intervenors’ experts, studies show that race-conscious admissions programs serve to remedy this negative racial climate by creating a “critical mass” of African American and Latino students on campus such that African American and Latino students are “able to form the necessary community and social support networks associated with success.” (Id. at 23–24; Allen Rep. at 7). Defendant–Intervenors further assert that “[t]his increase in numbers serves to reduce the racial isolation that is so harmful to the educational experiences

of minority students, increase intergroup interaction, and thus help diminish negative racial stereotypes and racial hostility.” (Id. at 24).
As Defendant–Intervenors correctly acknowledge, although the University itself is not the cause of the alleged racial hostility, it may take affirmative steps to dismantle a system of racial exclusion in which it has become a passive participant. Croson, 488 U.S. at 492, 109 S.Ct. at 720. Defendant–Intervenors, however, have provided no evidence that the University has been a “passive participant” in the more recent racial episodes outlined above. As the Supreme Court has acknowledged, there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for African Americans. This observation, however, by itself, is not sufficient to justify race-conscious measures. Id. at 499, 109 S.Ct. at 724.
5. Discriminatory Effect of the University’s Current Admissions Policies Next, Defendant–Intervenors assert that the University’s race-conscious admissions policies are necessary to counteract other factors in its admissions policies that have an adverse impact on minority applicants. (Def.–Intervenors’ Br. Resp. Pls.’ Renewed Mot. Summ. J. at 26–32). Defendant–Intervenors have presented the expert reports of William T. Trent, and Drs. Jacob Silver and James Rudolph, in support of their assertion that other factors considered in the University’s admissions policies have an adverse impact on minority applicants, specifically African Americans and Latino Americans.
According to Defendant–Intervenors, the SCUGA factors “are used to enhance the GPAs or selection index point totals of white applicants to a significantly greater degree than for African–American and Latino applicants, rendering the latter less competitive in the admissions process.” (Id. at 30; Trent Rep. at 7; Silver & Rudolph Rep. at 14–15). For example, African American and Latino applicants are less likely to attend high schools that receive a high “S” (school) factor, or offer advanced courses contributing to an applicant’s “C” (curriculum) factor. (Id. at 27–28; Trent Rep. at 4–7). Similarly, due to the University’s past history of discrimination, it is less likely that a minority student will receive any alumnus “A” (alumni) points. (Id. at 29; Trent Rep. at 7; Silver & Rudolph Rep. at 16–17). Furthermore, minority students are less likely to reside in the forty-five northern Michigan counties that the University identifies as under-represented under its “G” (geography) factor.2 (Id. at 30; Trent Rep. at 7; Silver & Rudolph Rep. at 16).
In this Court’s opinion, Defendant–Intervenors’ reliance

upon the discriminatory impact of the other SCUGA factors is misplaced as the SCUGA factors are but one component of the overall race-conscious admissions programs that Plaintiffs seek *802 to invalidate. Because both the allegedly discriminatory SCUGA factors and the racial preferences are part of the same program, there is no overall discriminatory impact.
Moreover, if the current selection criteria have a discriminatory impact on minority applicants, it seems to this Court that the narrowly tailored remedy would be to remove or redistribute such criteria to accommodate for socially and economically disadvantaged applicants of all races and ethnicities, not to add another suspect criteria to the list. Accordingly, the Court finds Defendant–Intervenors’ contention to be unpersuasive.
Conclusion
Defendant–Intervenors have failed to cite any evidence that the LSA’s race-conscious admissions criteria were actually motivated by a desire to remedy any past or present discrimination by the University. Furthermore, the Court is satisfied that the LSA’s race-conscious admissions programs cannot be justified as measures to remedy either the current effects of past discrimination, or the discriminatory impact of the LSA’s other admissions criteria. Because Defendant–Intervenors have failed to present sufficient evidence to create a genuine issue of material fact in support of their claim that the LSA’s admissions programs in existence from 1995 through 1998 were a narrowly tailored means of achieving the compelling governmental interest of remedying the

present effects of past discrimination, Plaintiffs are entitled to summary judgment on this issue.3

To survive summary judgment, the nonmoving party “is

required to do more than simply show that there is some

‘metaphysical doubt as to the material facts.’ ” Pierce v.

Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th

Cir.1994) (quoting Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,

1356, 89 L.Ed.2d 538 (1986)). “The mere existence of a

scintilla of evidence in support of the [nonmoving party’s]

position will be insufficient; there must be evidence on

which the jury could reasonably find for the [nonmoving

party].” Anderson v. Liberty Lobby, 477 U.S. 242, 252,

106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The Court

is satisfied that Defendant–Intervenors have failed to

sustain this burden. Therefore, Plaintiffs’ motion for

summary

judgment

with

respect

to

Defendant–Intervenors’ claim that the University was

justified in using race as a factor in admissions to remedy

the present effects of past discrimination shall be granted,

and Defendant–Intervenors’ claims that the University

was justified in using race as a factor in admissions to

remedy the present effects of past discrimination shall be

dismissed.

An Order consistent with this Opinion shall issue forthwith.

Parallel Citations 152 Ed. Law Rep. 699

Footnotes

1

Defendant–Intervenors assert that “courts have been more tolerant of race-conscious action taken to remedy race-based denial of

educational opportunity” and have stated that “race-conscious steps to ensure equal educational opportunity for minorities may be

constitutionally permitted even in the absence of particular identified discrimination.” (Def.–Intervenors’ Resp. Pls.’ Mot. at 4–5)

(emphasis added). Each of the cases cited by Defendant–Intervenors, however, involved voluntary desegregation plans designed to

eliminate the vestiges of past de jure or de facto segregation in the educational context. Defendant–Intervenors have provided no

evidence that the State of Michigan ever maintained a segregated higher education system, or that the admissions policies at issue

were designed as voluntary plans to integrate its higher education system. Therefore, the Court is satisfied that

Defendant–Intervenors must present evidence of particular identified discrimination.

2

The “U” (unusual) factor includes under-represented minority status.

3

The Court notes that its decision today has no practical effect on its prior decision regarding the LSA’s admissions programs in

existence for 1999 and 2000, as such policies were previously found to be constitutional as a narrowly tailored means of achieving

a compelling governmental interest, i.e. diversity. See Gratz, 122 F.Supp.2d at 827–31.

 
 183 F.R.D. 209 United States District Court,
E.D. Michigan, Southern Division.
Jennifer GRATZ and Patrick Hamacher, Plaintiffs, v.
Lee BOLLINGER, James J. Duderstadt, The University of Michigan, and The University of Michigan College of Literature, Arts, and Science,
Defendants, and
Ebony Patterson, Ruben Martinez, Laurent Crenshaw, Karla R. Williams, Larry Brown, Tiffany Hall, Kristen M.J. Harris, Michael Smith, Khyla Craine, Nyah Carmichael, Shanna Dubose, Ebony Davis, Nicole Brewer, Karla Harlin, Brian Harris, Katrina Gipson, Candace B. N. Reynolds, by and through their parents or guardians, Denise Patterson, Moises Martinez, Larry Crenshaw, Harry J. Williams, Patricia Swan–Brown, Karen A. McDonald, Linda A. Harris, Deanna A. Smith, Alice Brennan, Ivy Rene Carmichael, Sarah L. Dubose, Inger Davis, Barbara Dawson, Roy D. Harlin, Wyatt G. Harris, George C. Gipson, Shawn R. Reynolds, and Citizens for Affirmative Action’s Preservation, Proposed Defendant–Intervenors.
Defendant.
No. 97–CV–75231–DT. | July 7, 1998.
Plaintiffs filed complaint alleging that university’s admissions policy impermissibly utilized race as a factor in determining admissions. Prospective minority applicants for admission to university and non-profit organization dedicated to preserving higher educational opportunities for minority students filed motion to intervene as of right, or in the alternative for permission to intervene. The District Court, Duggan, J., held that: (1) proposed intervenors lacked a substantial legal interest in the suit necessary for intervention as of right; (2) proposed intervenors failed to show inadequate representation by university, so as to satisfy requisite for intervention as of right; and (3) permissive intervention would not be allowed.
Motion denied.
Attorneys and Law Firms
*210 Daivd F. Herr, Kirk Kolbo, Maslon, Edelman, Borman & Brand, Minneapolis MN, Michael E. Rosman,

Michael P. McDonald, Hans F. Bader, Washington, DC, for plaintiffs.
D-all Wilmer, Cutler & Pickering, by John Payton & Jane Sherburne, Washington, DC, Butzel Long, by Leonard M. Niehoff, Ann Arbor, MI, for defendants.
Godfrey J. Dillard, Milton R. Henry, Reginald M. Turner, Jr., Citizens for Affirmative Action’s Preservation, Detroit, MI, Elaine R. Jones, Director–Counsel, Theodore M. Shaw, New York City, Christopher A. Hansen, Steven R., Shapiro & Deborah N. Archer, New York City, Brent E. Simmons, Lansing, MI, Michael J. Steinberg, Detroit, MI, Patricia Mendoza, Mexican American Legal Defense & Educational Fund, Chicago, IL, for Proposed Intervening Defendants.
Opinion
OPINION
DUGGAN, District Judge.
This matter is currently before the Court on proposed defendant-intervenors (“proposed intervenors”) motion to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2), and in the alternative, for permission to intervene pursuant to Fed.R.Civ.P. 24(b)(2). Plaintiffs have filed a response in opposition to the motion contending that the proposed intervenors have failed to meet the requirements of intervention of right, and alternatively, that the Court should decline to exercise its discretion and permit intervention under Fed.R.Civ.P. 24(b)(2).1
On October 14, 1997, plaintiffs filed a complaint against Lee Bollinger, James J. Duderstadt, The University of Michigan, and The University of Michigan College of Literature, Arts, and Science (collectively “University”) alleging that the University’s admissions policy impermissibly utilizes race as a factor in determining admissions in violation 42 U.S.C. §§ 1981 and 1983, and in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The present motion seeks intervention on behalf of seventeen African–American and Latino individuals, all of whom state that they intend to seek admission to The University of Michigan, and Citizens for Affirmative *211 Action’s Preservation (“CAAP”), a non-profit organization “with the mission of preserving higher educational opportunities for African–American and Latino students in the State of Michigan.” (Mot. Int. at 4).
The proposed intervenors assert that they are entitled to

intervention of right because they have a direct and substantial interest in an admissions policy that “preserves and broadens access to the University, including ... the University’s authority to consider the impact of a student’s racial background ...” in determining the propriety of admission. According to the proposed intervenors, a decision in favor of plaintiffs eliminating race as a criteria for admission would substantially impair the proposed intervenors’ interest in preserving access to the University on behalf of African–American and Latino students, precipitate a decline in enrollment of African–American and Latino students at the University, and create a potential stare decisis effect through a ruling that the University’s admissions policy is unconstitutional. Finally, the proposed intervenors argue that their asserted interests cannot be adequately represented by defendants because “the University may be subject to internal and external pressures that temper its ability to protect often-controversial race-conscious admissions programs” and “the University faces less risk of harm than do Applicants if such race-conscious admissions programs are dismantled.” (Mot. Int. at 10).
Alternatively, the proposed intervenors seek permission of the Court to intervene pursuant to Fed.R.Civ.P. 24(b)(2) claiming that “[p]roposed intervenors seek to ensure educational access for African–American and Latino students and to maintain a diverse student body.” (Mot. Int. at 17).
In contrast, plaintiffs oppose the proposed intervenors’ motion for intervention of right on the grounds that the proposed intervenors misapprehend the nature of the “significantly protectable legal interest” contemplated by Fed.R.Civ.P. 24(a)(2) and necessary to entitle one to intervention of right. Plaintiffs claim that the interest upon which the proposed intervenors rely is not a “significantly protectable legal interest” in an admissions policy that considers race; but, rather, a perceived “entitlement” to racial preference in admissions under the University’s present policy. Stated differently, plaintiffs assert that if the University voluntarily ceased the use of race as a factor in admissions decisions, the proposed intervenors could not claim the deprivation of any “legally protected interest,” or entitlement to the voluntary use of an affirmative action program in admissions under law. Thus, according to the plaintiffs, the proposed intervenors cannot articulate the existence of a legally protected interest sufficient to afford them intervention of right.
Second, plaintiffs claim that allowing the proposed intervenors to intervene in this lawsuit would expand its scope beyond issues raised in the complaint and answer by not only litigating the constitutionality of the University’s present admissions policy, but by also considering the constitutional validity of any future

admissions policy of the University that does not consider race as a factor. Plaintiffs also argue that the motion for intervention is premature in that the proposed intervenors are unable to sustain their burden of demonstrating inadequate representation because as the proposed intervenors acknowledge in their motion, “Defendants’ cursory response to Plaintiffs’ complaint reveals little about Defendants’ intended defense of the University’s admissions program.” (Mot. Int. at 8). Based on this statement, the plaintiffs argue that the proposed intervenors cannot claim inadequate representation when they are unsure of the particular defense which may be mounted by the University.
Finally, plaintiffs argue that the Court should decline to exercise its discretion and sanction permissive intervention because “applicants have no cognizable claim or defense that presents a question of law or fact in common with the original parties.” (Pl.’s Resp. at 18). In addition, plaintiffs assert that intervention will unnecessarily “complicate, delay, and prejudice adjudication of this case” in light of the complete absence of factors which would warrant permissive intervention. *212 2
Intervention of Right
[1] Fed.R.Civ.P. 24(a) provides in pertinent part:
Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
The Court must consider four elements in order to determine whether the proposed intervenors are entitled to intervene as of right: “(1) timeliness of the application to intervene, (2) the applicant’s substantial legal interest in the case, (3) impairment of the applicant’s ability to protect that interest in the absence of intervention, (4) inadequate representation of that interest by parties already before the court.” Michigan AFL—CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997). The Court will address each of these elements in turn.

1. Timeliness The proposed intervenors filed the motion to intervene on February 5, 1998, approximately four months subsequent to plaintiffs’ filing of the original complaint on October 14, 1997. Plaintiffs have not argued that the motion is untimely, and this case is in its initial stages.3 For these reasons, the Court is satisfied that the motion is timely.
2. Substantial Legal Interest [2] The proposed intervenors bear the burden of establishing that they have a substantial legal interest in the subject matter of this litigation. Miller, 103 F.3d at 1245; Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir.1990). The Sixth Circuit has “opted for a rather expansive notion of the interest sufficient to invoke intervention of right.” Id. (citing Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir.1991) and Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir.1987)). “We have [the Sixth Circuit] for example, noted that an intervenor need not have the same standing necessary to initiate a lawsuit, Purnell, 925 F.2d at 948, and cited with approval decisions of other courts ‘reject[ing] the notion that Rule 24(a)(2) requires a specific legal or equitable interest.’ ” Id. (citations omitted). However, the Sixth Circuit cautioned, “The inquiry into the substantiality of the claimed interest is necessarily fact specific.” Id.
[3] Relying on the Sixth Circuit’s decisions in Miller, supra, and Jansen, supra, and the Eleventh Circuit’s decision in In re Birmingham Reverse Employment Litigation, 833 F.2d 1492 (11th Cir.1987), the proposed intervenors claim that courts sanction intervention when the interests of minority groups in the maintenance of an affirmative action program are threatened. Analogously, the proposed intervenors claim that their interest in the preservation of race as a factor in the University’s admissions program is a sufficient “substantial legal interest” to support intervention of right.4
*213 The existence of a “substantial legal interest” on the part of the proposed intervenors is a source of great dispute among the parties at this juncture. The proposed intervenors have articulated this interest as a “direct and significant interest in an admissions policy that preserves and broadens access to the University, including ... the University’s authority to consider the impact of a student’s racial background ... as a distinct factor in evaluating admissions.” (Mot. Int. at 5). According to the proposed intervenors, this interest is more than adequate to support intervention of right under current Sixth Circuit law. Plaintiffs claim the articulated interest in the

preservation of the use of race as a factor in admissions is insufficient to demonstrate a “substantial legal interest” because the proposed intervenors cannot claim a legally enforceable right in the continued voluntary use of race as a factor in admissions.
This lawsuit is predicated upon plaintiffs’ contention that the University’s admission policy is unlawful because it impermissibly utilizes race as a factor in determining admissions. Plaintiffs have not advanced a claim that the policy adversely affects minorities. While the proposed intervenors argue that the elimination or modification of the existing policies may adversely affect minorities, proposed intervenors have not asserted any right to have the existing policy continue.
Plaintiffs, in fact, contend that proposed intervenors do not have any right to have existing admissions policies continued. In the absence of such a right, plaintiffs maintain proposed intervenors lack the significant protectable legal interest that is necessary to entitle them to intervention of right.
The Court is persuaded by plaintiffs’ position. While proposed intervenors are certainly interested in assuring that the University does not eliminate or modify the existing policies in a way that will adversely affect minorities, such interest does not, in this Court’s opinion, rise to the level of a significantly protectable interest.5
The Supreme Court has noted that “[w]hat is obviously meant [by Rule 24(a)(2) ] is a significantly protectable interest.” Similarly, this Court has required a “direct, substantial interest” in the litigation which must be “significantly protectable.”
However, as with the word “interest,” the terms “direct, substantial” and “significantly, protectable” are not well defined.
Purnell v. City of Akron, 925 F.2d 941, 947 (6th Cir.1991) (citations omitted). Proposed intervenors rely on Jansen, supra, wherein the Court permitted a class of black applicants and black employees of the Division of Fire of the City of Cincinnati to intervene as defendants in a suit by white firefighters challenging the validity of a consent decree setting goals and time tables for minority hiring. In reaching its decision to permit intervention, the Court applied the reasoning employed by the Eleventh Circuit in In Re Birmingham Reverse Discrimination Employment Litigation, supra. This Court, however, believes that both Jansen and In re Birmingham are distinguishable. In both cases, the Court appeared to give great significance to the fact that the proposed intervenors in each of those cases

were parties to a consent decree.
“The proposed intervenors ... are parties to the consent decree challenged in this action ... At stake in this litigation is the proposed intervenors’ interest in continuing affirmative action under the consent decree .... Therefore, as parties to the consent decree, the proposed intervenors have a significant legal interest in its interpretation.”
*214 Jansen, 904 F.2d at 342 (citing In re Birmingham Reverse Employment Litigation, 833 F.2d at 1496 n. 13) (emphasis added).
The Eleventh Circuit in In re Birmingham stated:
Because the relief requested by the plaintiffs, if granted, would foreclose future promotions of blacks under the decrees, and perhaps result in the demotion of blacks already promoted, the movants urged that they were entitled to intervene as of right under Fed.R.Civ.P. 24(a). The district court denied the motion to intervene under Rule 24(a) but granted it under Rule 24(b) (permissive intervention).13
In note 13, the Court stated:
“In light of our discussion in Part II of this opinion, these individuals were entitled to intervene as of right because they represented the interests of persons whose jobs were directly at stake given the relief sought by the plaintiffs.”
833 F.2d at 1496 (emphasis added).
In this Court’s opinion, the salient distinction is that the proposed intervenors in Jansen and Birmingham, had a right to intervene because they had a “legally protected interest” conferred upon them by virtue of their status as parties to the consent decree. In this case, proposed intervenors do not have the same “significantly protectable” interest because proposed intervenors do not have any legally enforceable right to have the existing admissions policy continued.6

In sum, proposed intervenors’ interest in this litigation is not an interest which the Court believes to be a “direct substantial interest” which is “legally protectable.”7
3. Impairment [4] “To satisfy this element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.” Miller, 103 F.3d at 1247 (citation omitted).
The proposed intervenors argue that a decision in favor of plaintiffs will adversely affect the proposed student intervenors’ interests in obtaining admission to the University. In addition, proposed intervenors state that a favorable decision for plaintiffs will substantially reduce the number of African–American and Latino students at the University. Further, the proposed intervenors claim that impairment could also result from a potential stare decisis effect that a ruling that the University’s admissions program is unconstitutional may have on any attempt by the proposed intervenors to enforce their rights in future litigation over the University’s program.
On the issue of impairment of the proposed intervenors’ interest, plaintiffs argue that because the proposed intervenors cannot establish a significant legal interest, they cannot show the subsequent impairment of such an interest.
The Court believes that as the proposed intervenors have failed to articulate the existence of a substantial legal interest in the subject matter of the instant litigation, it necessarily follows that the proposed intervenors cannot demonstrate an impairment of any interest. Accordingly, the Court rules that the impairment requirement is not satisfied.
4. Inadequate Representation [5] Prospective intervenors have the burden of making a minimal showing that the existing party may inadequately represent his or her interests. Miller, 103 F.3d at 1247. The proposed intervenors argue that the defendants are incapable of adequately representing the proposed intervenors’ interest because as public actors defendants’ “ability to advance the full range of legal justifications for considering race in admission *215 is constrained substantially by other legitimate governmental considerations....” (Mot. Int. at 9). According to the proposed intervenors, the University may be “subject to internal and external pressures that temper its ability to

protect often-controversial race-conscious admissions programs....” Id. at 10.
[6] Plaintiffs rely on the Fifth Circuit’s decision in Hopwood v. State of Texas, 21 F.3d 603 (5th Cir.1994), wherein the court denied a motion for intervention on behalf of the Thurgood Marshall Legal Society and the Black Pre–Law Association in a lawsuit challenging the constitutional validity of the University of Texas Law School’s affirmative action program. In determining the organizations were not entitled to intervention of right, the Fifth Circuit stated that the proposed intervenors failed to demonstrate that the “state will not strongly defend its affirmative action program.” Id. at 606. According to plaintiffs, Hopwood also establishes that where a governmental agency is the entity whose representation is deemed to be inadequate, “a much stronger showing of inadequacy is required.” Id. at 605 (citing 7C Charles A. Wright and Arthur R. Miller, Federal Practice & Procedure § 1909 (1986)). Therefore, plaintiffs contend that under the heightened standard, the proposed intervenors cannot establish that the University will not adequately defend its existing admissions program. Alternatively, plaintiffs make the argument that the proposed intervenors’ motion is premature in the sense that the proposed intervenors are unable at this stage of the litigation to ascertain the precise nature of the defendants’ defense and therefore, are unable to make any tenable argument with respect to inadequacy of representation when the proposed intervenors are unaware of how the University intends to defend its program.

Existing Sixth Circuit guidance on the adequacy of representation of interest provides,

that there is a slight difference in

interests between the [proposed

intervenors] and the supposed

representative does not necessarily

show inadequacy, if they both seek

the same outcome.... However,

interests need not be wholly

“adverse” before there is a basis for

concluding

that

existing

representation of a “different”

interest may be inadequate.

Jansen, 904 F.2d at 343 (quoting Nuesse v. Camp, 385 F.2d 694, 703 (D.C.Cir.1967)). In addition, the court in Miller, in noting the minimal nature of the proposed intervenors’ burden at this stage, stated, “[I]t may be enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor’s arguments.” Miller, 103 F.3d at 1247 (citing Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489 (9th Cir.1995)).

At this stage of the litigation, defendants have merely filed an answer to the plaintiffs’ complaint. Defendants’ answers to plaintiffs’ initial discovery requests were due to be completed on March 20, 1998. (Pl.’s Resp. at 18, n. 10). Proposed intervenors candidly acknowledge in their motion to intervene that “Defendants’ cursory response to Plaintiffs’ complaint reveals little about Defendants’ intended defense of the University’s admissions program....” (Mot. Int. at 8). The Court, mindful of the minimal nature of the proposed intervenors’ burden at this stage, does not believe that the proposed intervenors have satisfied their burden of establishing how defendants’ defense is inadequate to represent the proposed intervenors’ interest.
In Hopwood, the Fifth Circuit, in affirming the district court’s denial of the motion to intervene, focused on the proposed intervenors’ respective inabilities to “demonstrat[e] that the State will not strongly defend its affirmative action program[,]” and to “[show] that they [proposed intervenors] have a separate defense of the affirmative action plan that the State has failed to assert.” Hopwood, 21 F.3d at 606. The Court finds the Fifth Circuit’s reasoning in Hopwood persuasive in that the Court does not believe in the instant case that the proposed intervenors have sufficiently articulated the existence of a separate interest on which the defendants will not adequately represent them. The proposed intervenors have succinctly stated their interests as the preservation of race as a factor in the admissions policy of the University. Presumably, the University, having voluntarily enacted the affirmative action policy *216 in its admissions, has a strong interest in preserving the validity of its admissions program and will vigorously defend the continued utilization of race as a factor in admissions. In short, the Court believes that the proposed intervenors have failed to identify an interest, other than the preservation of race as a factor in admissions, on which the defendants in the case at bar cannot adequately defend them.
Moreover, the Court does not believe that the proposed intervenors have shown that they have “a separate defense of the affirmative action plan that the State has failed to assert.” Hopwood, 21 F.3d at 606 (citing Jansen v. Cincinnati, 904 F.2d 336 (6th Cir.1990)). The Court believes at this stage of the litigation, the proposed intervenors have failed to establish in any detail any alleged deficiencies in the defendants’ intended defense of its admissions policy. The proposed intervenors’ brief is devoid of the elaboration of any defense of the University’s admissions policy which the proposed intervenors intend to assert that they believe the University will fail to assert on its own.

On the issue of inadequacy of representation, the proposed intervenors merely confine their challenge to conclusory allegations that the University is constrained by “legitimate governmental considerations,” and “by their own institutional interest in academic freedom, their educational goals, and their fiscal and administrative concerns.” (Mot. Int. at 9–10). While the proposed intervenors have highlighted these possible conflicts, they have failed to show in any detail how these perceived differences will inhibit the University’s adequate representation of the proposed intervenors’ interest.
For the reasons set forth above, the proposed intervenors’ motion to intervene pursuant to Fed.R.Civ.P. 24(a)(2) shall be denied.
Permissive Intervention
[7] Fed.R.Civ.P. 24(b) provides in pertinent part:

have a question of law in common with this action (i.e. the constitutional validity of the use of race as a factor in determining the propriety of admission to the University), the Court believes that their interests will be adequately represented by the University. Therefore, in the interest of the timely resolution of this action, the Court denies the proposed intervenors’ motion for permissive intervention.
Participation as Amicus Curiae
The Court will, however, permit proposed intervenors to participate as amicus curiae. Such participation shall be limited to the submission of briefs in support of or in opposition to motions filed by the parties to this action. The proposed intervenors shall be notified and shall receive copies of all pleadings hereafter filed in this lawsuit.

Upon timely application anyone may be permitted to intervene in an action ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
The Court declines to exercise its discretion and allow the proposed intervenors to intervene in this litigation. While the Court does acknowledge that the proposed intervenors

Conclusion
For all of the foregoing reasons, the Court denies the proposed intervenors’ motion to intervene pursuant to Fed.R.Civ.P. 24(a)(2). Alternatively, the Court declines to exercise its discretion and permit intervention pursuant to Fed.R.Civ.P. 24(b)(2). The Court, however, shall permit proposed intervenors to participate as amicus curiae.
An order consistent with this Opinion shall issue forthwith.

Footnotes

1

On June 5, 1998, proposed intervenors filed a motion requesting oral argument. Pursuant to L.R. 7.1(e)(2), the Court believes the

issues are adequately addressed in the briefs and does not believe oral argument is necessary. Accordingly, proposed intervenors’

request for oral argument is denied.

2

In a response to a “motion to intervene” in a related case, Grutter v. Bollinger, 16 F.Supp.2d 797 (E.D.Mich.1998) (Friedman, J.),

“defendants” asserted that they do not oppose the motion to intervene but, “recognize that the participation of intervenors in this

matter and in Gratz v. Bollinger, which is the subject of a motion pending before Judge Duggan, could significantly complicate

discovery and possibly other aspects of these cases.” (Df.’s Resp. to Mot. Int. at 1).

3

The Court makes this statement with the acknowledgment of plaintiffs’ argument that the proposed intervenors’ motion is

premature with respect to plaintiffs’ contention that the proposed intervenors cannot establish inadequacy of representation of the

proposed intervenors’ interest by defendants. The Court does not read plaintiffs’ brief, nor does it believe that the implication of

plaintiffs’ argument over the prematurity of the proposed intervenors’ motion, is aimed at a belief that the proposed intervenors’

motion is untimely in the sense of being filed too late in the course of the litigation.

4

In the proposed intervenors’ motion and brief in support, the proposed intervenors make no attempt to delineate any distinction

among the interests of the student intervenors, and those of the CAAP. CAAP asserts that its organization is premised upon the

preservation of “higher educational opportunities for African–American and Latino students in the State of Michigan.” CAAP

asserts that its membership consists of “individuals, some of whom are parents or grandparents of prospective African–American and Latino students in the State of Michigan.” (Mot. Int. at ¶ 18). Based on the foregoing assertion, it would appear that the proposed student intervenors and the association share the same “interest” in the preservation of race as a factor in determining admissions. In order to facilitate the discussion, for the purposes of this motion, the Court will discuss the interests of both groups together.

5

To the extent that the proposed intervenors have an interest in assuring that the Court does not determine the existing policies to be

unlawful, this interest is substantially similar, if not identical, to the interest of the University and, as discussed, infra, the Court has

no reason to conclude that such interest will not be adequately represented by the present defendants.

6

If the University voluntarily decided to cease implementation of its present admissions policy or to modify its present admissions

policy, proposed intervenors could not claim any deprivation of a legally protected interest, so long as the policy adopted by the

University did not unlawfully discriminate against minorities.

7

In so ruling, the Court does not believe that the proposed intervenors have a right to fully participate in this litigation as “parties.”

The Court will, however, allow “limited” participation as will be discussed, infra.

 
 Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 1 of 36
CLOSED,APPEAL,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:97−cv−75231−PJD

Gratz, et al v. Bollinger, et al Assigned to: District Judge Patrick J. Duggan Demand: $0
Plaintiff Jennifer Gratz

Date Filed: 10/14/1997 Date Terminated: 01/31/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by David F. Herr Mason, Edelman, 90 S. Seventh Street 3300 Norwest Center Minneapolis, MN 55402−4140 612−672−8200 Fax: 612−672−8200 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Glen N. Lenhoff Law Office of Glen N. Lenhoff 328 S. Saginaw Street 8th Floor, North Building Flint, MI 48502−1926 810−235−5660 Fax: 810−235−5641 Email: lenhofflaw@usol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James K. Fett Fett &Fields 805 E. Main Street Pinckney, MI 48169−3266 734−954−0100 Email: jim@fettlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kerry L. Morgan Pentiuk, Couvreur, 2915 Biddle Avenue Suite 200 Wyandotte, MI 48192 734−281−7100 Fax: 734−281−7102 Email: kmorganesq@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kirk O. Kolbo Maslon, Edelman, 90 S. Seventh Street 3300 Wells Fargo Center Minneapolis, MN 55402−4140 612−672−8200 Email: kirk.kolbo@maslon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 2 of 36

Plaintiff Patrick Humacher

represented by David F. Herr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Glen N. Lenhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James K. Fett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kerry L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kirk O. Kolbo (See above for address) ATTORNEY TO BE NOTICED

V. Appellant Ebony Patterson Denise Patterson, as guardian
Appellant Ruben Martinez Moises Martinez, as guardian
Appellant Laurent Crenshaw Larry Crenshaw, as guardian
Appellant Karla R. Williams Harry J. Williams, as guardian
Appellant Larry Brown Patricia Swan−Brown, as guardian

represented by Godfrey J. Dillard Godfrey Dillard, Esq. P.O. Box 312120 Detroit, MI 48231 313−964−2838 Fax: 313−259−9179 Email: godfreydillard@ameritech.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 3 of 36

Appellant Tiffany Hall Karen A. McDonald, as guardian
Appellant Kristen M.J. Harris Linda A. Harris, as guardian
Appellant Michael Smith Deanna A. Smith, as guardian
Appellant Khyla Craine Alice Brennan, as guardian
Appellant Nyah Carmichael Ivy Rene Carmichael, as guardian
Appellant Shanna Dubose Sarah L. Dubose, as guardian
Appellant Ebony Davis Inger Davis, as guardian
Appellant Nicole Brewer Barbara Dawson, as guardian
Appellant Karla Harlin Roy D. Harlin, as guardian
Appellant Brian Harris Wyatt G. Harris, as guardian

represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 4 of 36

ATTORNEY TO BE NOTICED

Appellant
Katrina Gipson George C. Gipson, as guardian

represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Appellant
Candice B.N. Reynolds Shawn R. Reynolds, as guardian

represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Appellant
Citizens for Affirmative Actions's Preservation

represented by Godfrey J. Dillard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Lee Bollinger TERMINATED: 02/09/2001

represented by Christopher M. Taylor Hooper Hathaway, PC 126 S. Main St. Ann Arbor, MI 48104 734−662−4426 Fax: 734−662−9559 Email: ctaylor@hooperhathaway.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Sherburne Wilmer, Cutler, 2445 M Street, N.W. Washington, DC 20037 202−663−6000 Fax: 202−663−6000 TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Payton Wilmer, Cutler, 2445 M Street, N.W. Washington, DC 20037−1420 202−663−2000 Fax: 202−663−2000 TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John H. Pickering Wilmer, Cutler, 2445 M Street, N.W. Washington, DC 20037−1420 202−663−2000 Fax: 202−663−2000 TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 5 of 36

Defendant James T. Duderstadt TERMINATED: 02/09/2001
Defendant University of Michigan Board of Regents

Leonard M. Niehoff 130 S. First Steet 4th Floor Ann Arbor, MI 48104 734−418−4246 Fax: 734−418−4247 Email: lniehoff@honigman.com TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Kessler Thompson &Knight LLP 2000 Town Center, Suite 1900 Southfield, MI 48075 248−233−0852 Fax: 214−999−1576 Email: Philip.Kessler@tklaw.com TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Sherburne (See above for address) TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John A. Payton (See above for address) TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John H. Pickering (See above for address) TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard M. Niehoff (See above for address) TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Kessler (See above for address) TERMINATED: 02/09/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 6 of 36

Defendant
University of Michigan College of Literature, Arts and Science TERMINATED: 04/01/1999

Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard M. Niehoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip J. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
Ebony Patterson TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milton R. Henry 2560 Vhay Lane Bloomfield Hills, MI 48304 248−646−3103 Fax: 248−646−3103 TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olatunde C.A. Johnson NAACP Legal Defense and Educational Fund 99 Hudson Street Suite 1600 New York, NY 10013−2897 212−219−1900 Fax: 212−219−1900 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. Clark Hill 500 Woodward Avenue Suite 3500 Detroit, MI 48226−3435 (313) 965−8300 Email: rturner@clarkhill.com

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 7 of 36

TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore M. Shaw NAACP Legal Defense and Educational Fund 99 Hudson Street Suite 1600 New York, NY 10013−2897 212−219−1900 Fax: 212−219−1900 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Laurent Crenshaw TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Karla R. Williams TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 8 of 36

TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Tiffany Hall TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Kristen M. J. Harris TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore M. Shaw (See above for address)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 9 of 36

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Michael Smith TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Khyla Craine TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant

represented by

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 10 of 36

Nyah Carmichael TERMINATED: 07/07/1998

Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Shanna Dubose TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Ebony Davis TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 11 of 36

Intervenor Defendant Nicole Brewer TERMINATED: 07/07/1998
Intervenor Defendant Karla Harlin TERMINATED: 07/07/1998
Intervenor Defendant Brian Harris TERMINATED: 07/07/1998

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milton R. Henry

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 12 of 36

(See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Katrina Gipson TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Candice B. N. Reynolds TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 13 of 36

Intervenor Defendant Citizens for Affirmative Actions's Preservation TERMINATED: 07/07/1998
Intervenor Defendant Ruben Martinez TERMINATED: 07/07/1998
Intervenor Defendant Larry Brown TERMINATED: 07/07/1998

represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milton R. Henry (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Godfrey J. Dillard (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milton R. Henry (See above for address)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 14 of 36
TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olatunde C.A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reginald M. Turner , Jr. (See above for address) TERMINATED: 07/07/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore M. Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Intervenor Defendant
H. Wallace Parker TERMINATED: 07/07/1998

V. Movant National Association for the Advancement of Colored People Northern Oakland County Branch TERMINATED: 05/29/1998
Movant College Entrance Examination Board
Movant Jennifer M Granholm Attorney General

represented by H. Wallace Parker Bloomfield Law Center 44060 Woodward Avenue Suite 200 Bloomfield Hills, MI 48302 248−332−0222 Fax: 248−332−7412 Email: parkermcgruderlaw@gmail.com TERMINATED: 05/29/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard A. Wilhelm Dickinson Wright 38525 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304−2970 248−646−4300 Email: rwilhelm@dickinsonwright.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan I. Leffler Michigan Department of Attorney General Habeas Corpus Division 120 N. Washington Square, 1st Floor P.O. Box 30217 Lansing, MI 48909 517−373−4875 Fax: 517−373−4875 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 15 of 36

Movant National Association of Scholars
Movant General Motors Corporation Movant Steelcase, Incorporated

represented by Brice M. Clagett Covington &Burling 1201 Pennslyvania Avenue, N.W. P.O. Box 7566 Washington, DC 20044 202−662−6000 Fax: 202−662−6000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith A. Noreika Covington, Burling, 1201 Pennsylvania Avenue Washington, DC 20044 202−662−5600 Email: knoreika@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oscar M. Garibaldi Covington, Burling, 1201 Pennsylvania Avenue P. O. Box 7566 Washington, DC 20044−7566 202−662−5442 Fax: 202−662−5442 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth Geller Mayer, Brown, 1909 K Street, N.W. Washington, DC 20006−1101 202−263−3000 Fax: 202−263−3000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deanne E. Maynard Jenner &Block 601 Thirteenth Street, N.W. Twelfth Floor Washington, DC 20005 202−639−6000 Fax: 202−639−6000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dwight K. Hamilton Steelcase Inc. 901 44th Street, S.E. CH−4E Grand Rapids, MI 49508 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Silver One IBM Plaza Suite 4700

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 16 of 36

Chicago, IL 60611−7603 312−222−9350 Fax: 312−222−9350 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon D. Botsford Steelcase Inc. 901 44th Street, S.E. CH−4E Grand Rapids, MI 49508 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall E. Mehrberg One IBM Plaza Suite 4700 Chicago, IL 60611−7603 312−222−9350 Fax: 312−222−9350 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shilpa S. Satoskar Jenner &Block 601 Thirteenth Street, N.W. Twelfth Floor Washington, DC 20005 202−639−6000 Fax: 202−639−6000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant 3M

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Abbott Laboratories

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Bank One Corporation

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant E.I. Dupont De Nemours Company

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Dow Chemical Company

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 17 of 36

Movant Eastman Kodak Company
Movant Eli Lilly and Company
Movant General Mills, Incorporated
Movant Intel Corporation
Movant Johnson and Johnson
Movant Kellogg Company
Movant KPMG International
Movant Lucent Technologies, Incorporated
Movant Microsoft Corporation
Movant PPG Industries, Incorporated

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 18 of 36

ATTORNEY TO BE NOTICED

Movant Procter and Gamble Company

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Sara Lee Corporation

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Texaco, Incorporated

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant TRW Automotive U. S., L. L. C.

represented by Jeffrey S. Silver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/14/1997 10/21/1997
10/22/1997 10/22/1997 11/14/1997 12/03/1997
12/03/1997 12/05/1997 12/05/1997 12/16/1997 12/22/1997 01/08/1998 02/05/1998

# Docket Text
1 COMPLAINT − Receipt # 351144 − Date Fee Received: 10/14/97 (nh) (Entered: 10/16/1997)
4 SUMMONS returned executed by process server on 10/14/97 − answer due 11/3/97 for Lee Bollinger, for James T. Duderstadt, for Univ MI College Lit, for Univ MI (LS) (Entered: 10/23/1997)
2 NOTICE of non−admission of attorney Michael E. Rosman, Michael P. McDonald and Hans F. Bader (LS) (Entered: 10/23/1997)
3 NOTICE of non−admission of attorney David F. Herr (LS) (Entered: 10/23/1997)
5 LETTER by defendants re: extension of time to answer complaint (RH) Modified on 05/27/1999 (Entered: 11/20/1997)
6 ANSWER by defendants Lee Bollinger, James T. Duderstadt and Univ MI to complaint [1−1] with proof of mailing (RH) Modified on 05/27/1999 (Entered: 12/05/1997)
6 AFFIRMATIVE defenses by defendants Lee Bollinger, James T. Duderstadt and Univ MI (RH) Modified on 05/27/1999 (Entered: 12/05/1997)
SCHEDULE by Judge Patrick J. Duggan: status conference set for 2:30 12/16/97 (mo) Modified on 05/27/1999 (Entered: 12/05/1997)
7 NOTICE of status conference (LS) Modified on 05/27/1999 (Entered: 12/08/1997)
STATUS conference held and continued to 2:00 3/24/98 − Judge Patrick J. Duggan (mo) (Entered: 12/16/1997)
8 DEMAND by plaintiffs for jury trial (dp) (Entered: 01/05/1998)
9 PROOF of mailing by plaintiffs of demand for jury trial (dp) (Entered: 01/09/1998)
10 LETTER by Leonard Niehoff confirming the scheduled status conference (RH) (Entered: 02/06/1998)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 19 of 36

02/05/1998
02/05/1998 02/11/1998
02/24/1998 02/24/1998 02/24/1998 03/04/1998 03/12/1998 03/12/1998 04/24/1998 04/29/1998 05/26/1998 05/28/1998 05/29/1998 06/05/1998 07/07/1998 07/07/1998 07/13/1998 07/15/1998 07/20/1998

11 MOTION by Ebony Patterson, Ruben Martinez, Laurent Crenshaw, Karla Williams, Larry Brown, Tiffany Hall,Kristen J. J. Harris, Michael Smith, Khyla Craine, Nyah Carmichael, Shanna Dubose, Nichole Brewer, Ebony Davis, Karlin Harlin, Brian Harris, Katrina Gipson, Candice Reynolds and Citizens for Affirmative Action's Preservation to intervene , with brief and proposed answer of intervening defendants (RH) Modified on 01/26/1999 (Entered: 02/06/1998)
SCHEDULE by Judge Patrick J. Duggan: status conference set for 2:00 3/31/98 (mo) Modified on 05/27/1999 (Entered: 02/09/1998)
12 MOTION (first amended) by Ebony Patterson, Laurent Crenshaw, Karla R. Williams, Tiffany Hall, Kristen M. J. Harris, Michael Smith, Khyla Craine, Nyah Carmichael, Shanna Dubose, Ebony Davis, Nicole Brewer, Karla Harlin, Brian Harris, Katrina Gipson, Candice B. N. Reynolds, Citizens Actions, Ruben Martinez and Larry Brown to intervene with proof of mailing (cf) Modified on 05/27/1999 (Entered: 02/12/1998)
13 PROOF of mailing of response to motion to intervene [14−1] (RH) Modified on 05/27/1999 (Entered: 02/26/1998)
14 RESPONSE by plaintiffs Jennifer Gratz and Patrick Humacher to motion to intervene [12−1] (RH) Modified on 05/27/1999 (Entered: 02/26/1998)
15 RESPONSE by defendants to motion to intervene [12−1] with proof of mailing (RH) Modified on 05/27/1999 (Entered: 08/11/1998)
16 REPLY by intervening defendants to response to motion to intervene [12−1] with proof of mailing (pd) (Entered: 05/27/1999)
SCHEDULE by Judge Patrick J. Duggan: status conference set for 3:00 4/8/98 (mo) Modified on 05/27/1999 (Entered: 03/12/1998)
17 LETTER by defendants Univ MI, James T. Duderstadt, Lee Bollinger confirming rescheduling of status conference (dh) (Entered: 03/13/1998)
18 PETITION by H. Wallace Parker to intervene with brief (dp) Modified on 05/27/1999 (Entered: 04/27/1998)
19 SUBSTITUTION for plaintiffs Jennifer Gratz and Patrick Humacher of attorney Kerry L. Morgan in place of Patrick J. Wright (dp) (Entered: 04/30/1998)
20 MOTION by movant Natl Assn Adv to withdraw its petition to intervene . (Ok without brief via Judge Duggan's court clerk.) (cf) (Entered: 05/27/1998)
21 PROTECTIVE order by Judge Patrick J. Duggan with unopposed stipulation concerning confidentiality with exhibit. (cf) (Entered: 05/29/1998)
22 ORDER by Judge Patrick J. Duggan allowing the withdrawal of the petition to intervene by H. Wallace Parker [18−1] for the Oakland County Branch of the NAACP (LS) (Entered: 06/01/1998)
23 MOTION by intervening defendants for oral argument on motion to intervene [12−1] with brief, attachment and proof of mailing (dp) (Entered: 06/08/1998)
24 MEMORANDUM opinion and order by Judge Patrick J. Duggan denying motion to intervene by intervening defen [12−1] (dp) (Entered: 07/08/1998)
25 LETTER by Judge Patrick J. Duggan to parties stating that the proposed intervenors may participate in this action amicus curiae; the proposed intervenors must notify court if they wish to participate as such (dp) (Entered: 07/08/1998)
26 NOTICE by plaintiffs of taking deposition of Theodore Spencer on 6/3/98 and Dianne Gauss on 6/4/98 with proof of mailing (lg) (Entered: 07/16/1998)
27 NOTICE by David F. Herr, attorney for plaintiffs Patrick Humacher and Jennifer Gratz of change of address to 3300 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402−4140. (cf) (Entered: 07/20/1998)
28 NOTICE by plaintiffs Patrick Humacher and Jennifer Gratz of taking deposition of James VanHecke 7/22/98 at 9:00 a.m. with proof of mailing. (cf) (Entered:

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 20 of 36

07/21/1998 07/24/1998 07/27/1998
07/27/1998
07/29/1998
08/06/1998
08/14/1998
09/14/1998 09/16/1998 09/24/1998 09/24/1998 09/24/1998 10/01/1998 10/02/1998 10/05/1998 10/08/1998
10/13/1998 10/13/1998
10/13/1998 10/27/1998

07/21/1998)
29 MOTION by intervening defendants for reconsideration of order [24−1] with brief, attachment and proof of mailing (kg) (Entered: 07/22/1998)
30 NOTICE by the Court of hearing on motion for reconsideration of order [24−1] by intervening defen [29−1] (RH) (Entered: 08/04/1998)
31 LETTER to Mr. Dillard from the court regarding extension of time for notification of proposed intervenors with respect to participation as amicus curiae (RH) (Entered: 08/04/1998)
33 LETTER from Godfrey J. Dillard, attorney for proposed intervenors, to Judge Duggan, regarding the court's 7/7/98 order denying the motion to intervene of proposed intervenors Ebony Patterson, et al, etc.. (cf) (Entered: 08/06/1998)
35 REPLY by defendants in support of defendants motion for reassignment or alternatively for designating actions as companion cases with proof of mailing (LS) (Entered: 03/30/2001)
32 LETTER from Kirk O. Kolbo, attorney for plaintiffs Patrick Humacher and Jennifer Gratz, to Judge Duggan, stating that a formal legal memorandum, will not be filed, in response to the proposed intervenors' motion for reconsideration filed on July 21, l998, etc. and with attachments. (cf) Modified on 08/06/1998 (Entered: 08/06/1998)
34 SUPPLEMENTAL memorandum by intervening defendants in support of motion for reconsideration of order [24−1] by intervening defen [29−1] with attachments A−D and proof of mailing (dp) (Entered: 08/17/1998)
36 MOTION by Univ MI, James T. Duderstadt, Lee Bollinger for order denying class certification with brief, exhibits and proof of mailing (LS) (Entered: 09/15/1998)
37 NOTICE by plaintiffs of taking deposition of Robert Seltzer on 9/22/98 with proof of mailing (lg) (Entered: 09/17/1998)
38 NOTICE by plaintiffs of taking deposition of Marilyn McKinney on 10/1/98 at 9:00 am with proof of mailing (lg) (Entered: 09/25/1998)
39 NOTICE by plaintiff of taking deposition of Marilyn Knepp on 10/2/98 at 9:00 am (lg) (Entered: 09/25/1998)
40 NOTICE by plaintiff of taking deposition of Lester Monts on 10/8/98 at 9:00 am with proof of mailing (lg) (Entered: 09/25/1998)
41 WITNESS list by plaintiffs Patrick Humacher and Jennifer Gratz (dp) (Entered: 10/02/1998)
42 PRELIMINARY WITNESS list by defendants with proof of mailing (lg) (Entered: 10/06/1998)
43 PROOF of mailing of plaintiffs' witness list (lg) (Entered: 10/06/1998)
44 LETTER by plaintiffs re: extension of time to file defendant's response to motion for an order denying class certification (lg) Modified on 05/27/1999 (Entered: 10/09/1998)
45 MOTION by plaintiffs for class certification , and for bifurcation of liability and damages trials with attachments A−F (LS) (Entered: 10/14/1998)
46 MOTION and order by Judge Patrick J. Duggan, allowing the filing of a brief in excess of 20 pages in support of motion to certify the class (LS) (Entered: 10/14/1998)
47 PROOF of mailing by plaintiffs of pleadings 44 and the exparte motion to file a brief in excess of 20 pages (LS) (Entered: 10/14/1998)
48 OPINION and order by Judge Patrick J. Duggan denying motion for reconsideration of order [24−1] by intervening defen [29−1] with proof of mailing. (cf) (Entered: 10/30/1998)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 21 of 36

11/02/1998 11/02/1998 11/02/1998 11/04/1998 11/04/1998 11/16/1998 11/16/1998
11/17/1998 11/18/1998
11/20/1998 11/23/1998 12/10/1998
12/11/1998 12/16/1998 12/17/1998 12/23/1998
12/23/1998

49 APPEAL by intervening defendants of order [48−1] to USCA − FEE: PAID − Receipt: #370580 (do) Modified on 05/27/1999 (Entered: 11/04/1998)
52 REPLY by defendants to response to motion for order denying class certification [36−1] with exhibits A−E and proof of mailing (dh) Modified on 05/27/1999 (Entered: 11/05/1998)
52 RESPONSE by defendants to motion for class certification [45−1] and for bifurcation of liability and damages trials [45−2] with exhibits A−E and proof of mailing (dh) Modified on 05/27/1999 (Entered: 11/05/1998)
50 PROOF of mailing of notice of appeal to USCA, Godfrey Dillard, Leonard Niehoff, Kerry Morgan and David Herr (do) (Entered: 11/04/1998)
51 CERTIFIED copy of appeal notice by intervening defendants [49−1] and docket transmitted to USCA (do) Modified on 05/27/1999 (Entered: 11/04/1998)
53 NOTICE of hearing on motion for class certification [45−1] and motion for order denying class certification [36−1] set for 2:00 12/10/98 with proof of mailing (nh) Modified on 05/27/1999 (Entered: 11/18/1998)
54 PRETRIAL scheduling order by Judge Patrick J. Duggan − deadline for witness list set for 12/15/98 , deadline for discovery set for 2/15/99 , deadline for filing motions for 3/1/99 , final pretrial conference set for 2:30 4/13/99 , civil jury trial set for 5/99 with proof of mailing (nh) (Entered: 11/18/1998)
55 NOTICE of deadline for reply to response to motion for class certification [45−1] and for bifurcation of liability and damages trials [45−2] set for 11/18/98 (kg) Modified on 05/27/1999 (Entered: 11/19/1998)
56 REPLY by plaintiffs Patrick Humacher and Jennifer Gratz to response to motion for class certification [45−1], motion for bifurcation of liability and damages trials by Jennifer Gratz, Patrick Humacher [45−2] with attachments (kg) (Entered: 11/19/1998)
57 ACKNOWLEDGEMENT from USCA of receipt of appeal &docket [51−1] − appeal case # 98−2248 (LS) (Entered: 11/24/1998)
58 PROOF of mailing by plaintiffs of ex parte motion to file a brief in excess of 5 pages, reply memorandum and proposed order (LS) (Entered: 11/24/1998)
MOTION hearing held on motion for class certification [45−1] and for bifurcation of liability and damages trials [45−2] and motion for order denying class certification [36−1] − disposition: taken under advisement − Judge Patrick J. Duggan − Court Reporter: Marie Metcalf (mo) Modified on 05/27/1999 (Entered: 12/10/1998)
59 NOTICE by plaintiffs Patrick Humacher and Jennifer Gratz of taking deposition of James J. Duderstadt 12/16/98 at 9:00 a.m. with proof of mailing. (cf) (Entered: 12/11/1998)
60 WITNESS list by plaintiffs Patrick Humacher and Jennifer Gratz with proof of mailing. (cf) (Entered: 12/17/1998)
61 NOTICE (amended) by plaintiffs' Patrick Humacher and Jennifer Gratz of taking deposition of James J. Duderstadt 1/8/99 at 9:00 a.m. with proof of mailing. (cf) (Entered: 12/17/1998)
62 ORDER by Judge Patrick J. Duggan granting motion for class certification [45−1] and for bifurcation of liability and damages trials [45−2] and denying motion for order denying class certification [36−1] (lg) Modified on 05/27/1999 (Entered: 12/28/1998)
63 MEMORANDUM opinion and order by Judge Patrick J. Duggan, regarding plaintiffs' motion for class certification and bifurcation of liability and damaged trials and defendants' motion for order denying class certification (lg) (Entered: 12/30/1998)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 22 of 36

01/19/1999 01/25/1999 01/28/1999 02/01/1999 02/01/1999 02/01/1999 02/10/1999 02/10/1999
02/11/1999 02/16/1999 02/19/1999 03/04/1999 03/15/1999 04/01/1999
04/09/1999 04/09/1999 04/09/1999 05/03/1999 05/03/1999

64 NOTICE by plaintiffs Patrick Humacher, and Jennifer Gratz of taking deposition of William G. Bowen 1/18/99 at 10:00 am with affidavit of service (nh) (Entered: 01/19/1999)
65 NOTICE by plaintiffs' Patrick Humacher, and Jennifer Gratz of taking deposition of Claude M. Steele on 1/28/99 at 9:00 with affidavit of service (nh) (Entered: 01/26/1999)
66 REBUTTAL witness list by plaintiffs with proof of mailing (cm) (Entered: 01/29/1999)
67 RECORD consisting of: 2 volumes of pleadings transmitted to USCA − appeal case # 98−2248. (UPS #1Z 467 088 03 1205 092 2) (Note: This file actually went out via UPS on 2/2/99.) (cf) (Entered: 02/02/1999)
68 NOTICE by plaintiffs of taking deposition of Patricia Y. Gurin at 9:00 on 2/12/99 with proof of mailing (kg) (Entered: 02/02/1999)
69 NOTICE by plaintiffs of taking deposition of Lee Bollinger at 9:00 on 2/9/99 with proof of mailing (kg) (Entered: 02/02/1999)
STATUS conference held(plaintiff's counsel by telephone) − Judge Patrick J. Duggan (mo) (Entered: 02/10/1999)
70 PRETRIAL scheduling order (amended) by Judge Patrick J. Duggan − setting deadline for discovery for 3/12/99 , setting deadline for filing motions for 5/3/99 , setting final pretrial conference for 2:00 7/28/99 , setting civil jury trial for 9/1/99 (September/October, 1999) . (cf) (Entered: 02/11/1999)
71 LETTER from Jane C. Sherburne, attorney, on behalf of the defendants', to Judge Duggan requesting a status conference. (cf) (Entered: 02/12/1999)
72 NOTICE by plaintiffs Patrick Humacher and Jennifer Gratz of taking deposition of Nancy Cantor set for 02/17/99 at 9:00 with proof of mailing (dp) (Entered: 02/17/1999)
73 ACKNOWLEDGEMENT from USCA of receipt of appeal record [67−1] − appeal case # 98−2248 (dh) (Entered: 02/23/1999)
74 NOTICE by plaintiffs of taking deposition of Stephen W. Raudenbush on 3/9/99 at 9:00 am with affidavit (lg) (Entered: 03/05/1999)
75 NOTICE by plaintiffs of taking depositions set for 03/11/99 at 9:00 a.m. (see notice for individuals to be deposed); with proof of mailing (dp) (Entered: 03/16/1999)
76 ORDER by Judge Patrick J. Duggan, with consent motion, providing that the proper defendants be named and with proof of mailing. (Note: "Board of Regents" added as party text to defendant University of Michigan and terminating defendant, The University of Michigan College of Literature, Arts and Science.) (cf) Modified on 04/05/1999 (Entered: 04/05/1999)
77 MOTION by plaintiffs Patrick Humacher and Jennifer Gratz for partial summary judgment on liability with brief (dp) (Entered: 04/12/1999)
78 AFFIDAVIT and exhibits filed by plaintiffs Patrick Humacher and Jennifer Gratz in support of motion for partial summary judgment on liability (document 77); volume I (dp) Modified on 04/12/1999 (Entered: 04/12/1999)
79 AFFIDAVIT and exhibits filed by plaintiffs Patrick Humacher and Jennifer Gratz in support of motion for partial summary judgment (document 77); volume II (dp) (Entered: 04/12/1999)
80 MOTION by defendant's for summary judgment (cm) (Entered: 05/04/1999)
81 RESPONSE by defendants to motion for partial summary judgment on liability [77−1] with cross−motion for summary judgment, brief and proof of mailing (cm) Modified on 05/27/1999 (Entered: 05/04/1999)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 23 of 36

05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999
05/03/1999 05/07/1999 05/17/1999 05/20/1999 05/27/1999
05/27/1999 05/27/1999 05/27/1999 05/27/1999
06/01/1999

82 APPENDIX by defendants in support of opposition to plaintiffs' motion for partial summary judgment, and memorandum in support of motion for summary judgment by Lee Bollinger, James T. Duderstadt, Univ MI, Univ MI College Lit [80−1] Volume 1: Documents and Materials (cm) (Entered: 05/04/1999)
83 APPENDIX by defendants in support of opposition to plaintiffs' motion for partial summary judgment, and memorandum in support of defendants' cross−motion for summary judgment by Lee Bollinger, James T. Duderstadt, Univ MI, Univ MI College Lit [80−1] Volume 2: Deposition Excerpts (cm) (Entered: 05/04/1999)
84 APPENDIX by defendants in support of opposition to plaintiffs' motion for partial summary judgment, and motion for summary judgment by Lee Bollinger, James T. Duderstadt, Univ MI, Univ MI College Lit [80−1] Volume 3: Expert Witness Reports (cm) (Entered: 05/04/1999)
85 MOTION by USA for leave to file brief amicus curiae in excess of 20 pages with brief (LS) Modified on 05/05/1999 (Entered: 05/04/1999)
86 MOTION by plaintiff to compel production of certain application files with brief, exhibits A−C (LS) (Entered: 05/04/1999)
87 MOTION by Association of American Law Schools, National Association of State Universities and Land Grant Colleges, Committee on Institutional Cooperative, Wayne State University for leave to file brief Amici Curiae in support of defendants with brief, attachments A−E and proof of mailing (LS) Modified on 05/05/1999 (Entered: 05/05/1999)
88 MOTION by Amer Cnsl Ed −et al for leave to file a brief as Amici Curiae and to file a brief in excess of twenty pages (LS) (Entered: 05/05/1999)
89 PROOF of mailing of motion to compel [86−1] (cf) Modified on 05/27/1999 (Entered: 05/10/1999)
90 NOTICE of hearing on motion to compel production of certain application files by Jennifer Gratz, Patrick Humacher [86−1] for 2:00 6/3/99 with proof of mailing (LS) Modified on 05/27/1999 (Entered: 05/18/1999)
91 BRIEF by defendants in opposition to motion to compel production of certain application files by Jennifer Gratz and Patrick Humacher [86−1] with exhibits A−F and proof of mailing (dp) (Entered: 05/21/1999)
92 ORDER by Judge Patrick J. Duggan granting motion for leave to file a brief as Amici Curiae by Amer Cnsl Ed [88−1], granting motion to file a brief in excess of twenty pages by Amer Cnsl Ed [88−2], granting motion for leave to file brief amicus curiae in excess of 20 pages by USA [85−1], granting motion for leave to file brief Amici Curiae by Wayne St Univ, Comm Inst Coop, Natl Assoc St Univ, Assoc Amer Law [87−1], setting response to these amicus briefs for 6/14/99 with proof of mailing (dh) (Entered: 05/27/1999)
93 MEMORANDUM of the State of Ohio as amicus curiae in support of motion for summary judgment [80−1] with proof of mailing (dh) (Entered: 05/27/1999)
94 MEMORANDUM of the United States as amicus curiae in support of motion for summary judgment [80−1] with proof of mailing (dh) (Entered: 05/27/1999)
95 MEMORANDUM of amici curiae American Council on Education, et al, in support of motion for summary judgment [80−1] with proof of mailing (dh) (Entered: 05/27/1999)
96 ORDER by Judge Patrick J. Duggan, setting deadline for response to motion for summary judgment by defendant's [80−1] for 6/14/99, and motion for partial summary judgment on liability by plaintiff's [77−1] for 6/14/99 , setting hearing on motion for summary judgment by defendants [80−1] for 10:00 6/29/99, and motion for partial summary judgment on liability by plaintiffs [77−1] for 10:00 6/29/99 with proof of mailing (nh) (Entered: 05/28/1999)
97 MEMORANDUM by plaintiffs in opposition to motion for summary judgment by Lee Bollinger, James T. Duderstadt, Univ MI, Univ MI College Lit [80−1] (dh) (Entered: 06/02/1999)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 24 of 36

06/01/1999 06/01/1999 06/03/1999
06/03/1999
06/07/1999 08/13/1999 08/13/1999 08/24/1999 08/26/1999 08/26/1999 08/26/1999
08/30/1999
09/08/1999 09/15/1999
09/15/1999 09/30/1999 10/12/1999

98 NON−CERTIFIED copy of order from USCA granting − appeal case # 98−2248 (dh) (Entered: 06/02/1999)
99 AFFIDAVIT of Kirk O. Kolbo and exhibits regarding memorandum in opposition by Jennifer Gratz, Patrick Humacher [97−1] (dh) (Entered: 06/02/1999)
MOTION hearing held on motion to compel production of certain application files by Jennifer Gratz, Patrick Humacher [86−1]resolved in part &granted in part − Judge Patrick J. Duggan − Court Reporter: Marie Metcalf (mo) (Entered: 06/04/1999)
100 PROOF of mailing plaintiff's memorandum, affidavit and exhibits in opposition to defendant's motion for summary judgment(Grutter) and plaintiff's memorandum, affidavit and exhibits in opposition to defendants motion for summary judgment and reply memorandum in support of plaintiffs' motion for partial summary judgment (Gratz) (dh) (Entered: 06/04/1999)
101 NON−CERTIFIED copy of order from USCA granting appellants' motion to stay district court proceedings − appeal case # 98−2248 (dp) (Entered: 06/08/1999)
102 SLIP opinion from USCA reversing and remanding the case for further proceedings, etc. − appeal case # 98−2009/2248. (cf) (Entered: 08/17/1999)
103 NON−CERTIFIED copy of judgment from USCA reversing and remanding the case for further proceedings, etc. − appeal case # 98−2009/2248. (cf) (Entered: 08/17/1999)
104 LETTER by defendants Univ MI, James T. Duderstadt and Lee Bollinger confirming civil status conference and scheduling conference for 2:00 on 8/26/99 (dp) (Entered: 08/25/1999)
STATUS conference held − Judge Patrick J. Duggan (mo) (Entered: 08/26/1999)
SCHEDULE: by Judge Patrick J. Duggan setting civil status conference for 2:30 9/30/99 (mo) (Entered: 08/26/1999)
105 AMENDED pretrial scheduling order by Judge Patrick J. Duggan − setting deadline for witness list for 2/1/00 , setting deadline for discovery for 3/15/00 , setting deadline for filing motions for 4/15/00 , setting final pretrial conference for 2:00 on 6/14/00 and setting civil jury trial for 7/1/00 ; with proof of mailing (dp) (Entered: 08/27/1999)
106 MOTION by movant College Entrance Examination Board for leave to join brief of Association of American Law Schools, National Association of State Universities and Land Grant Colleges, Committee on Institutional Cooperation and Wayne State University as Amici Curiae in support of defendants with proof of mailing (nh) (Entered: 09/01/1999)
107 NON−CERTIFIED copy of order from USCA granting case [0−0] − appeal case # 98−2248 (dh) (Entered: 09/09/1999)
108 ORDER by Judge Patrick J. Duggan granting motion for leave to join brief of Association of American Law Schools, National Association of State Universities and Land Grant Colleges, Committee on Institutional Cooperation and Wayne State University as Amici Curiae in support of defendants by College Entrance [106−1] with proof of mailing [EOD Date 9/16/99] (cm) (Entered: 09/16/1999)
109 MANDATE from USCA reversing, remanding and vacating− appeal case # 98−2248 (LS) (Entered: 09/17/1999)
STATUS conference held − Judge Patrick J. Duggan (mo) (Entered: 10/01/1999)
110 ANSWER by intervening defendants Citizens Aff Actions, Candice B. N. Reynolds, Katrina Gipson, Brian Harris, Ebony Davis, Shanna Dubose, Nyah Carmichael, Khyla Craine, Michael Smith, Kristen M. J. Harris, Tiffany Hall, Ruben Martinez, Karla R. Williams, Laurent Crenshaw, Larry Brown, Ebony Patterson, Nicole Brewer and Karla Harlin to complaint [1−1] with proof of mailing proof of mailing (dp) (Entered: 10/14/1999)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 25 of 36

10/19/1999 01/12/2000 02/01/2000 02/01/2000 02/01/2000 02/01/2000 02/04/2000 02/07/2000
02/07/2000 02/08/2000
02/11/2000
02/16/2000
02/17/2000
02/18/2000 02/22/2000
02/24/2000
02/29/2000

111 NOTICE of non−admission of attorney Theodore M. Shaw (LS) (Entered: 10/20/1999)
112 TRANSCRIPT taken on 6/3/99 of motion to compel (lg) (Entered: 01/13/2000)
113 MOTION by appellant to extend discovery and amend the case management scheduling order with brief and proof of mailing (lg) (Entered: 02/02/2000)
114 WITNESS list by plaintiffs (lg) (Entered: 02/02/2000)
115 PRELIMINARY WITNESS list by intervors' with proof of mailing (lg) (Entered: 02/02/2000)
116 WITNESS list by defendants with proof of mailing (lg) (Entered: 02/03/2000)
117 PROOF of mailing by plaintiffs of witness list (kg) (Entered: 02/07/2000)
118 MOTION by plaintiffs Patrick Humacher and Jennifer Gratz to compel production of documents requested in plaintiff's request for production of documents to defendants no. 44 (set V) with brief, affidavit, attachments A−C and proof of mailing (cm) (Entered: 02/08/2000)
119 MOTION by defendants for relief from order regarding class certification and bifurcation in light of subsequent authority with brief and proof of mailing (cm) (Entered: 02/09/2000)
120 ORDER by Judge Patrick J. Duggan, referring motion to compel production of documents by Jennifer Gratz, Patrick Humacher [118−1] to Magistrate Judge Thomas A. Carlson , for hearing and determination with proof of mailing [EOD Date 2/9/00] (cm) (Entered: 02/09/2000)
121 NOTICE from the chambers of Magistrate Judge Carlson setting hearing on motion to compel production of documents requested in plaintiff's request for of documents to defendants no. 44 (set V) by Patrick Humacher, Jennifer Gratz [118−1] for 9:30 3/9/00 with proof of mailing (dh) (Entered: 02/14/2000)
124 AMENDED scheduling order by Judge Patrick J. Duggan − setting deadline for witness list for 5/1/00 , setting deadline for discovery for 6/15/00 , setting deadline for filing motions for 7/15/00 , setting final pretrial conference for 2:00 pm on 9/13/00 , setting civil jury trial for 2:00 pm on 9/13/00 (lg) (Entered: 02/23/2000)
122 MEMORANDUM in opposition by plaintiffs Patrick Humacher, Jennifer Gratz to motion to extend discovery and amend the case management scheduling order [113−1] with affidavit, proof of mailing (dh) Modified on 02/17/2000 (Entered: 02/17/2000)
123 RESPONSE by Univ MI College, Univ MI, James T. Duderstadt, Lee Bollinger to motion to extend discovery and amend the case management scheduling order [113−1] with attachments and proof of mailing (lg) (Entered: 02/23/2000)
125 RESPONSE by Univ MI, James T. Duderstadt, Lee Bollinger to motion to compel production of documents requested in plaintiff's request for production of documents to defendants no. 44 (set V) by Patrick Humacher, Jennifer Gratz [118−1] with proof of mailing (lg) (Entered: 02/24/2000)
126 LETTER to the court by plaintiffs rescheduling the time for the response to motion for relief from order regarding class certification and bifurcation in light of subsequent authority by James Duderstadt, Lee Bollinger, Univ MI [119−1] to be filed for 3/2/00 (LS) (Entered: 02/25/2000)
MOTION hearing held on motion to compel production of documents by defendantsss, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen, appellant, intervening defen [131−1] − disposition: GRANTED − Magistrate Judge Thomas A. Carlson − Court Reporter: Carlson 00−033 (vs) (Entered: 04/13/2000)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 26 of 36

03/02/2000 03/06/2000 03/09/2000 03/09/2000 03/13/2000 03/14/2000 03/14/2000 03/15/2000 03/16/2000 03/20/2000 03/24/2000 03/30/2000
04/19/2000
04/28/2000

127 RESPONSE by plaintiffs Patrick Humacher, and Jennifer Gratz to motion for relief from order regarding class certification and bifurcation in light of subsequent authority by James T. Duderstadt, Lee Bollinger, Univ MI [119−1] with proof of mailing (LS) (Entered: 03/06/2000)
128 REPLY by plaintiffs Patrick Humacher and Jennifer Gratz to response to motion to compel production of documents requested in plaintiff's request for production of documents to defendants no. 44 (set V) by Patrick Humacher, Jennifer Gratz [118−1] with proof of mailing (LS) (Entered: 03/07/2000)
129 AMENDED notice by Magistrate Judge Carlson's chambers of hearing on motion to compel production of documents requested in plaintiff's request for of documents to defendants no. 44 (set V) by Patrick Humacher, Jennifer Gratz [118−1] for 1:30 3/29/00 with proof of mailing (LS) (Entered: 03/10/2000)
130 REPLY brief by defendants to response to, and in support of, motion for relief from order regarding class certification and bifurcation in light of subsequent authority by James T. Duderstadt, Lee Bollinger and Univ MI [119−1] with proof of mailing (dp) (Entered: 03/13/2000)
131 MOTION by intervening defendants and defendants to compel production of documents with brief and proof of mailing (kg) (Entered: 03/14/2000)
132 NOTICE by Magistrate Judge Thomas A. Carlson's chambers setting hearing on motion to compel production of documents [131−1] for 1:30 p.m. on 3/29/00 and setting deadline for response to motion to compel production of documents [131−1] for 3/24/00 ; with proof of mailing (dp) (Entered: 03/15/2000)
133 ORDER by Judge Patrick J. Duggan referring motion to compel production of documents [131−1] to Magistrate Judge Thomas A. Carlson for hearing and determination ; with proof of mailing [EOD Date 3/15/00] (dp) (Entered: 03/15/2000)
134 MOTION by defendants to compel production of documents with brief and proof of mailing (kg) (Entered: 03/16/2000)
135 ORDER by Judge Patrick J. Duggan, referring motion to compel production of documents by Lee Bollinger, James T. Duderstadt, Univ MI [134−1] to Magistrate Judge Thomas A. Carlson , for hearing and determination with proof of mailing [EOD Date 3/17/00] (kg) (Entered: 03/17/2000)
136 NOTICE by the chambers of Magistrate Judge Carlson of setting hearing on motion to compel production of documents by defendants/intervenors [131−1] for 1:30 3/29/00 (cm) (Entered: 03/21/2000)
137 OPPOSITION by Univ MI, James T. Duderstadt, Lee Bollinger to motion to compel production of documents [134−1], motion compel production of documents by defendants, intervening defen, appellant, with proof of mailing (dh) Modified on 04/25/2000 (Entered: 03/27/2000)
138 ORDER by Magistrate Judge Thomas A. Carlson granting motion to compel production of documents by Lee Bollinger, James T. Duderstadt, Univ MI [134−1], granting motion to compel production of documents by intervenors [131−1], granting motion to compel production of documents requested in plaintiff's request for production documents to defendants no. 44 (set V) by Patrick Humacher, Jennifer Gratz [118−1] with proof of mailing (see order for further details) [EOD Date 3/31/00] (dh) (Entered: 03/31/2000)
139 MOTION by Natl Assoc Social Workers, Council on Social Work Education , the Association of Baccalaureate Social Work Program Directors, Inc and the Group for the Advancement of Doctorial Education in social work for joinder in brief of Amicus Curiae Association of American Law Schools, et al in support of defendants [95−1] with proof of mailing (LS) (Entered: 05/12/2000)
140 MOTION by movant College Entrance for leave to join brief of Amicus Curiae Assn of Amer Law Schools, et al in support of defendants with proof of mailing (kg) (Entered: 05/01/2000)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 27 of 36

05/01/2000 05/01/2000 05/01/2000 05/02/2000
05/09/2000 05/09/2000 05/16/2000 05/22/2000 06/19/2000 06/30/2000
07/13/2000 07/14/2000 07/17/2000
07/17/2000
07/17/2000 07/17/2000 07/17/2000
07/17/2000

141 WITNESS list by plaintiffs (kg) (Entered: 05/02/2000)
142 WITNESS list by appellant Citizens Aff Actions, with proof of mailing (kg) (Entered: 05/02/2000)
143 WITNESS list by defendants Univ MI, James T. Duderstadt, Lee Bollinger with proof of mailing. (cf) (Entered: 05/02/2000)
144 OPINION and order by Judge Patrick J. Duggan denying motion for relief from order regarding class certification and bifurcation in light of subsequent authority by James T. Duderstadt, Lee Bollinger, Univ MI [119−1] with proof of mailing. [EOD Date: 5/2/00] (cf) (Entered: 05/02/2000)
145 NOTICE by Judge Patrick J. Duggan of setting civil status conference for 2:30 5/22/00 with proof of mailing (LS) (Entered: 05/10/2000)
146 ORDER by Judge Patrick J. Duggan granting motion for joinder in brief of Amicus Curiae Association of American Law Schools, et al in support of defendants [95−1] by Natl Assoc Social [139−1] [EOD Date 5/12/00] (LS) (Entered: 05/12/2000)
147 PROOF of mailing of notice of taking depositions of Patrick Hamacher and Jennifer Gratz (cm) (Entered: 05/17/2000)
STATUS conference held − Judge Patrick J. Duggan (mo) (Entered: 05/23/2000)
148 NOTICE by plaintiffs of taking depositions on 6/19/00 of Sharon Newton Glenn at 11:00; Cynthia Stevens at 3:30; on 6/20/00 of Diego Bernal at 9:00; Kevin Jones at 11:00 and Robert Mann at 3:30 with proof of mailing (cm) (Entered: 06/20/2000)
149 NOTICE by plaintiffs Patrick Humacher and Jennifer Gratz of taking deposition of Jacob Silver on 6/28/00 at 11:30 a.m., of Jeffrey McKinnon on 6/29/00 at 5:30 p.m. and amended notice for Sharon Newton Glenn on 6/29/00 at 12:00 p.m. with proof of mailing (LS) (Entered: 07/05/2000)
150 NOTICE by plaintiffs Patrick Humacher and Jennifer Gratz of taking deposition of William T. Trent at 12:00 on 7/12/00 and James D. Anderson at 1:00 on 7/13/00 with proof of mailing (kg) (Entered: 07/14/2000)
151 MOTION by Jennifer M. Granholm for leave to file a brief as amicus curiae with brief, proposed brief and proof of mailing. (cf) (Entered: 07/14/2000)
152 MOTION by movant Natl Assn Scholars for leave to file brief as amicus curiae in support of plaintiffs' motion for partial summary judgment with proof of mailing. (no brief) (Note: Brice M. Clagett, Oscar M. Garibaldi and Keith A. Noreika, Covington &Burling, 1201 Pennsylvania Avenue, N.W., Washington, D.C. 20004−2401, 202−662−6000, attorneys for National Association of Scholars − given to Attorney Roll Clerk) (cf) (Entered: 07/17/2000)
153 MOTION by movant GM Corp for leave to file brief as amicus curiae in support of defendants with proof of mailing. (no brief) (Note: Counsel for GM Corp − Mayer, Brown &Platt, Kenneth S. Geller and Eileen Penner, 1909 K Street, N.W., Washington, D.C. 20006, 202−263−3242 − given to Attorney Roll Clerk) (cf) (Entered: 07/18/2000)
154 ORDER by Judge Patrick J. Duggan granting motion for leave to file brief as amicus curiae in support of defendants by GM Corp [153−1]. [EOD Date 7/18/00] (cf) (Entered: 07/18/2000)
155 AMICUS curiae brief by GM Corp in support of defendants with proof of mailing. (cf) (Entered: 07/18/2000)
156 MOTION (renewed) by plaintiffs' Patrick Humacher and Jennifer Gratz renewed motion for partial summary judgment on liability with supplemental memorandum in support of motion, affidavit of Kirk O. Kolbo and exhibits in support of motion. (cf) (Entered: 07/18/2000)
157 MOTION by plaintiffs' Patrick Humacher and Jennifer Gratz to strike any testimony or expert opinions (including of William Bowen) based on a consideration of the college and beyond database with brief, affidavit of Kirk O. Kolbo in support of motion to strike testimony of Dr. William Bowen with

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 28 of 36

07/17/2000 07/17/2000 07/17/2000
07/17/2000
07/17/2000
07/17/2000
07/17/2000 07/17/2000 07/19/2000 07/19/2000 07/27/2000 08/03/2000 08/03/2000 08/04/2000

exhibits. (cf) (Entered: 07/18/2000)
158 MOTION (renewed) by defendants Univ MI, James T. Duderstadt, and Lee Bollinger renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief with brief and certificate of service via courier. (cf) (Entered: 07/18/2000)
159 MOTION (renewed) by defendants Univ MI, James T. Duderstadt, and Lee Bollinger renewed motion for summary judgment on grounds of qualified immunity with brief and certificate of service via courier. (cf) (Entered: 07/18/2000)
160 APPENDIX (Volume 1 − documents and materials) by defendants Univ MI, James T. Duderstadt, and Lee Bollinger to motion renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1], and motion renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1]. (cf) Modified on 07/18/2000 (Entered: 07/18/2000)
161 APPENDIX (Volume 2 − deposition excerpts) by defendants Univ MI, James T. Duderstadt, and Lee Bollinger to motion renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1], and motion renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1]. (cf) Modified on 07/18/2000 (Entered: 07/18/2000)
162 APPENDIX (Volume 3 − expert witness reports) by defendants Univ MI, James T. Duderstadt, and Lee Bollinger to motion renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1], and motion renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1]. (cf) (Entered: 07/18/2000)
163 APPENDIX (Volume 4 − court orders and briefs of amici curiae) by defendants Univ MI, James T. Duderstadt, and Lee Bollinger to motion renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1], and motion renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1]. (cf) (Entered: 07/18/2000)
164 PROOF of mailing regarding documents #156 and #157. (cf) (Entered: 07/18/2000)
165 MOTION by defendants James T. Duderstadt and Lee Bollinger for summary judgment on grounds of qualified immunity with proof of mailing (dp) (Entered: 07/20/2000)
166 ORDER by Judge Patrick J. Duggan granting motion for leave to file brief as amicus curiae in support of plaintiffs' motion for partial summary judgment by Natl Assn Scholars [152−1] [EOD Date 7/20/00] (dp) (Entered: 07/20/2000)
167 BRIEF by movant Natl Assn Scholars in support of renewed motion for partial summary judgment on liability [156−1]; with attachments A−B (filing permitted by order; see document 166) (dp) (Entered: 07/20/2000)
168 NOTICE by Patrick Humacher and Jennifer Gratz of taking deposition of Joe R. Feagin 7/26/00 at 1:30 with proof of mailing (LS) (Entered: 07/28/2000)
169 RESPONSE by defendants Univ MI, James T. Duderstadt and Lee Bollinger in opposition to motion to strike any testimony or expert opinions of William Bowen) based on a consideration of the college and beyond database [157−1] with proof of mailing (kg) (Entered: 08/07/2000)
170 EXHIBITS filed by defendants in support of motion response [169−1] (kg) (Entered: 08/07/2000)
171 ORDER by Judge Patrick J. Duggan, setting trailing trial docket for 9/1/00 and 10/1/00 [EOD Date 8/7/00] (kg) (Entered: 08/07/2000)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 29 of 36

08/11/2000
08/11/2000 08/11/2000
08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000 08/11/2000
08/14/2000 08/16/2000 08/18/2000
08/18/2000

172 RESPONSE by Patrick Humacher, Jennifer Gratz to renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1], and renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1] with proof of mailing (LS) (Entered: 08/14/2000)
172 REPLY by Patrick Humacher, Jennifer Gratz to response and in support of renewed motion for partial summary judgment on liability by Jennifer Gratz, Patrick Humacher [156−1] with proof of mailing (LS) (Entered: 08/14/2000)
173 AFFIDAVIT of Kirk O. Kolbo and exhibits submitted in support of plaintiffs memorandum in opposition to defendants two renewed motions for summary judgment and reply memorandum in support of plaintiffs motion for partial summary judgment with attachments A−F (LS) (Entered: 08/14/2000)
174 MOTION by intervening defendants for leave to file a brief in excess of 20 pages with proof of mailing (LS) (Entered: 08/14/2000)
175 RESPONSE in opposition by intervening defendants to renewed motion for partial summary judgment on liability by Jennifer Gratz and Patrick Humacher [156−1] with proof of mailing (approved for filing) (LS) (Entered: 08/14/2000)
176 RESPONSE by intervening defendants to renewed motion for summary judgment as to plaintiffs' claims for declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1] with attachment and proof of mailing (LS) (Entered: 08/14/2000)
177 APPENDIX by intervening defendants in support of defendant − intervenors opposition ot plaintiffs renewed motion for summary judgment (Volume 1: Expert Witness Reports) (LS) (Entered: 08/14/2000)
178 APPENDIX by intervening defendants in support of defendant − intervenors opposition to plaintiffs renewed motion for summary judgment (volume II: Expert Witness Reports) (LS) (Entered: 08/14/2000)
179 APPENDIX by intervening defendants in support of defendant − intervenors opposition to plaintiffs renewed motion for summary judgment (volume II−B: Expert Witness Reports) (LS) (Entered: 08/14/2000)
180 APPENDIX by intervening defendants in support of defendant−intervenors opposition to plaintiffs renewed motion for summary judgment (volume III: Expert Witness Report) (LS) (Entered: 08/14/2000)
181 APPENDIX by intervening defendants in support of defendant − intervenors opposition to plaintiffs renewed motion for summary judgment (volume IV: Materials and Deposition Excerpts) (LS) (Entered: 08/14/2000)
182 MEMORANDUM by defendants in opposition to motion renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1] with proof of mailing and attachments (lg) (Entered: 08/15/2000)
183 NOTICE by Patrick Humacher and Jennifer Gratz of taking deposition of Jeffrey McKinnon, Niyah Carmichael, Angelica Johnson on 8/14/00 with proof of mailing (lg) (Entered: 08/15/2000)
184 LETTER by appellants, of change of address (lg) (Entered: 08/17/2000)
185 EXPARTE motion by plaintiffs Patrick Humacher and Jennifer Gratz to allow filing of plaintiffs' reply memorandum in support of plaintiffs' motion to strike any testimony or expert opinions (including of William Bowen) based on a consideration of the college and beyond database . (no brief) (cf) (Entered: 08/21/2000)
186 REPLY memorandum by plaintiffs Patrick Humacher and Jennifer Gratz in support of the motion to strike any testimony or expert opinions (including of William Bowen) based on a consideration of the college and beyond database by Jennifer Gratz, Patrick Humacher [157−1]. (cf) (Entered: 08/21/2000)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 30 of 36

08/21/2000 08/21/2000
08/24/2000 08/24/2000 08/31/2000 09/01/2000 09/01/2000 09/07/2000
10/03/2000 10/16/2000 10/16/2000
11/03/2000 11/03/2000 11/03/2000

TELE−CONFERENCE held − Judge Patrick J. Duggan (mo) (Entered: 08/21/2000)
SCHEDULE: by Judge Patrick J. Duggan setting hearing on motion renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1] for 9:30 9/18/00, motion renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1] for 9:30 9/18/00, motion to strike any testimony or expert opinions (including of William Bowen) based on a consideration of the college and beyond database by Jennifer Gratz, Patrick Humacher [157−1] for 9:30 9/18/00, motion renewed motion for partial summary judgment on liability by Jennifer Gratz, Patrick Humacher [156−1] for 9:30 9/18/00, motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt [165−1] for 9:30 9/18/00 , K setting final pretrial conference for 2:30 10/2/00 (mo) (Entered: 08/21/2000)
187 EXPARTE motion by plaintiff for leave to file a reply brief in excess of the 5 page limit (lg) (Entered: 08/25/2000)
188 REPLY by plaintiff's to response in opposition to motion renewed motion for partial summary judgment on liability by Jennifer Gratz, Patrick Humacher [156−1] (nh) (Entered: 08/29/2000)
189 TRANSCRIPT taken on 3/29/00 of discovery motions (nh) (Entered: 09/01/2000)
190 MOTION by intervening defendants for leave to file a sur−reply (kg) (Entered: 09/05/2000)
193 SUR−REPLY memorandum by defendant/intervenor's in opposition to motion renewed motion for partial summary judgment on liability by Gratz, Patrick Humacher [156−1] with proof of mailing (nh) (Entered: 10/05/2000)
191 NOTICE by defendant Univ MI of adjourning hearing on motion renewed motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1]; renewed motion for judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1]; motion to strike any testimony or expert opinions (including of William Bowen) based on a consideration of the college and beyond database by Jennifer Gratz, Patrick Humacher [157−1]; motion renewed motion for partial summary on liability by Jennifer Gratz, Patrick Humacher [156−1]; motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt [165−1] for 9:30 11/21/00 and adjouning the final pretrial conference (cm) (Entered: 09/08/2000)
192 CERTIFIED copy of order from USCA denying petitions for permission to apeal or alternatively for relief in mandamus − appeal case # 00−0107/0109 (also see 97−75928) (dp) (Entered: 10/04/2000)
194 NOTICE by plaintiff of taking deposition of Walter Allen at 10:00 on 10/20/00 with proof of mailing (kg) (Entered: 10/20/2000)
196 MOTION filed by Steelcase Inc, 3M, Abbott Lab, Bank On Corp, E I Dupont De Nemours Co Inc, Dow Chem Co, Eastman Kodac Eli Lilly Co, Gen Mills Inc, Intel Corp, Johnson Johnson, Kellogg Co, KPMG Intl, Lucent Tech Inc, Nicresoft Corp, PPG Ind Inc, Proctor Gamble Co, Sara Lee Corp, Texaco Inc and TRW inc for leave to file brief as amici curiae in support of defendants and for leave to file out of time with brief, appendix and proof of mailing (kg) (Entered: 10/26/2000)
197 NOTICE by Judge Lawrence P. Zatkoff's chambers of non−admission of attorney Shilpa Satoskar (dp) (Entered: 11/06/2000)
198 NOTICE by Judge Lawrence P. Zatkoff's chambers of non−admission of attorney Randall E. Mehrberg (dp) (Entered: 11/06/2000)
199 NOTICE by Judge Lawrence P. Zatkoff's chambers of non−admission of attorney Deanne E. Maynard (dp) (Entered: 11/06/2000)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 31 of 36

11/03/2000 11/03/2000 11/06/2000 11/14/2000 11/16/2000
11/27/2000 12/04/2000 12/13/2000 12/13/2000
01/30/2001
02/09/2001 02/09/2001 02/26/2001

200 NOTICE by Judge Lawrence P. Zatkoff's chambers of non−admission of attorney Dwight K. Hamilton (dp) (Entered: 11/06/2000)
201 NOTICE by Judge Lawrence P. Zatkoff's chambers of non−admission of attorney Jon D. Botsford (dp) (Entered: 11/06/2000)
202 CROSS NOTICE by plaintiffs of taking deposition of Wayne Camara on 11/10/00 at 11:00 am with proof of mailing (lg) (Entered: 11/13/2000)
203 ORDER by Judge Patrick J. Duggan granting motion for leave to file brief as amici curiae in support of defendants and for leave to file out of time [196−1] [EOD Date 11/17/00] (lg) (Entered: 11/17/2000)
MOTION hearing held on motion renewed motion for summary judgment as to plaintiffs' claims for injunctive and declaratory relief by Lee Bollinger, James T. Duderstadt, Univ MI [158−1], motion renewed motion for partial summary judgment on liability by Jennifer Gratz, Patrick Humacher [156−1] − disposition: taken under advisement − Judge Patrick J. Duggan − Court Reporter: Marie Metcalf (mo) (Entered: 11/16/2000)
204 TRANSCRIPT taken on 11/16/00 of motion for partial summary judgment on liability and motion to strike, defendants' renewed motion for summary judgment re injunctive (lg) (Entered: 12/01/2000)
TELE−CONFERENCE held − Judge Patrick J. Duggan (mo) (Entered: 12/04/2000)
205 JOINT summary of undisputed facts regarding admissions process. (cf) (Entered: 12/20/2000)
206 OPINION by Judge Patrick J. Duggan denying renewed motion for summary judgment on grounds of eleventh amendment immunity by Lee Bollinger, James T. Duderstadt, Univ MI [159−1], granting renewed motion for summary judgment with respect to the LSA's admissions programs for 1999 and 2000 by Lee Bollinger, James T. Duderstadt, Univ MI [158−1], granting renewed motion for summary judgment with respect to the LSA's admissions programs in existence from 1995 through 1998, and the admissions programs for such years shall be declared unconstitutional and denying request for injunctive relief by Jennifer Gratz, Patrick Humacher [156−1], and granting motion for summary judgment on grounds of qualified immunity by Lee Bollinger, James T. Duderstadt [165−1] with proof of mailing. [EOD Date: 12/20/00] (cf) Modified on 12/20/2000 (Entered: 12/20/2000)
207 ORDER by Judge Patrick J. Duggan granting renewed motion for partial summary judgment on liability by Patrick Humacher, Jennifer Gratz [156−1]in favor of plaintiffs with respect to the LSA's admissions programs in existence from 1995 thrugh 1998 and the admissions programs for such years are hereby declared unconstitutinal; and in favor of University defendants with respect to the LSA's admission programs for 1999 and 2000; denying plaintiffs requests injunctive relief [158−1], denying motion for summary judgment on grounds of qualified immunity by James T. Duderstadt, Lee Bollinger [165−1], granting renewed motion for summary judgment on grounds of qualified by Univ MI, James T. Duderstadt, Lee Bollinger [159−1] and the Board of Regents motion for summary judgment on grounds of Eleventh Amendment immunity is denied (see order for details) with proof of mailing [Date 2/2/01] (LS) (Entered: 02/02/2001)
208 ORDER by Judge Patrick J. Duggan, stating that the claims under qualified immunity should be resolved as quickly as possible [EOD Date 2/12/01] (lg) (Entered: 02/12/2001)
209 JUDGMENT (ORDER) by Judge Patrick J. Duggan, to dismiss defendants Lee Bollinger and James T. Duderstadt [EOD Date 2/13/01] (lg) (Entered: 02/13/2001)
210 OPINION by Judge Patrick J. Duggan regarding defendant−intervenors' argument that the College of Literature, Science and the Arts admissions programs pass constitutional muster as narrowly tailored means of remedying past and current discrimination by the university for later consideration with proof of mailing. An order consistant with this opinion shall issue forthwith. [EOD Date: 2/28/01] (cf)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 32 of 36

02/26/2001
02/26/2001 03/02/2001 03/02/2001 03/12/2001 03/13/2001 03/15/2001 03/21/2001 03/22/2001
03/23/2001 03/23/2001 03/26/2001 03/26/2001 03/27/2001 04/04/2001 04/04/2001 04/04/2001 04/04/2001

(Entered: 02/28/2001)
211 ORDER by Judge Patrick J. Duggan granting motion for summary judgment with respect to defendant−intervenors' claim that the university was justified in using race as a factor in admissions to remedy the present effects of past discrimination by Patrick Humacher, Jennifer Gratz [156−1] and that defendant−intervenors' claim that the university was justified in using race as a factor in admissions to remedy the present effects of past discrimination are dismissed with proof of mailing. [EOD Date 2/28/01] (cf) (Entered: 02/28/2001)
212 APPEAL by plaintiffs Patrick Humacher and Jennifer Gratz of orders [209−2] and [207−1] to USCA with affidavit of service − FEE: PAID − Receipt #: 413914 (do) (Entered: 03/02/2001)
213 PROOF of mailing of notice of appeal to USCA, all counsel of record and Marie Metcalf (do) (Entered: 03/02/2001)
214 CERTIFIED copy of appeal notice by Jennifer Gratz, Patrick Humacher [212−1] and docket transmitted to USCA (do) (Entered: 03/02/2001)
215 MOTION by intervening defendants for entry of a final judgment pursuant to 54(B) and, in the alternative, to add certification for interlocutory appeal pursuant to 59(E) with brief (dp) (Entered: 03/13/2001)
216 PROOF of mailing by intervening defendants of motion for entry of a final judgment pursuant to 54(b) and, in the alternative, 59(e) motion to add a certification for interlocutory appeal (dp) (Entered: 03/13/2001)
217 ACKNOWLEDGEMENT from USCA of receipt of appeal notice by Jennifer Gratz and Patrick Humacher [212−1] − appeal case # 01−1333 (dp) (Entered: 03/16/2001)
218 ORDER by Judge Patrick J. Duggan that final judgment is entered with respet to Defendant−Intervenors' claims [EOD Date 3/22/01] (cm) (Entered: 03/22/2001)
219 RESPONSE by plaintiffs Patrick Humacher and Jennifer Gratz to motion for entry of a final judgment pursuant to 54(B) [215−1], motion to add certification for interlocutory appeal pursuant to 59(E) [215−2] with proof of mailing (kg) (Entered: 03/23/2001)
220 APPEAL by intervening defendants of orders [211−1] and [210−1] to USCA with proof of service − FEE: not paid (do) (Entered: 03/26/2001)
STAYED pending appeal by Judge Patrick J. Duggan (pd) (Entered: 03/27/2001)
221 PROOF of mailing of notice of appeal to USCA and counsel of record (do) (Entered: 03/26/2001)
222 CERTIFIED copy of appeal notice by intervening defendants [220−1] and docket transmitted to USCA (do) (Entered: 03/26/2001)
223 TRANSCRIPT order form by appellants regarding request for transcript(s) appeal case # 01−1333 (nh) (Entered: 03/28/2001)
224 ORDER from USCA granting the petition and cross−petition for permission to appeal − USCA #01−0102/0104. [EOD Date 4/5/01] (cf) (Entered: 04/05/2001)
225 ACKNOWLEDGEMENT from USCA of receipt of appeal notice by intervening defen by appellant [220−1] − appeal case # 01−1438. (cf) Modified on 04/05/2001 (Entered: 04/05/2001)
226 APPEAL filing fee received from plaintiff Patrick Humacher for appeal notice of appeal &docket [214−1] in the amount of $ 105.00 − Receipt # 415896 − appeal case # 01−1418 (nh) (Entered: 04/11/2001)
227 APPEAL filing fee received from plaintiff Jennifer Gratz for appeal notice of appeal &docket [214−1] in the amount of $ 105.00 − Receipt # 415897 − appeal case # 01−1416 (nh) (Entered: 04/11/2001)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 33 of 36

04/11/2001 04/12/2001 04/30/2001 06/22/2001 06/26/2001
08/02/2001 08/02/2001 10/31/2002 10/31/2002 12/11/2002 12/11/2002 02/06/2003 07/08/2003
08/04/2003 11/03/2003
11/04/2003 11/05/2003 11/06/2003 11/24/2003 12/17/2003

228 TRANSCRIPT order form by James T. Duderstadt, Lee Bollinger appeal case # 01−1416 (lg) (Entered: 04/12/2001)
229 APPEAL filing fee received from Natl Assn Adv for appeal notice [220−1] in the amount of $ 105.00 − Receipt # 416306 − appeal case # 01−1438 (jg) (Entered: 04/17/2001)
230 TRANSCRIPT order form with no request: −appeal case # 01−1418 (cm) (Entered: 05/01/2001)
231 NOTICE by plaintiff Jennifer Gratz of of designation of record for appeal (dp) (Entered: 06/26/2001)
232 RECORD consisting of: 18 volumes of pleadings and 3 transcripts transmitted to USCA − appeal case # 01−1333 &# 01−1438. (UPS 1Z 467 088 03 1209 636 6, UPS 1Z 467 088 03 1209 637 5, and UPS 1Z 467 088 03 1209 638 4) (cf) (Entered: 06/26/2001)
233 ACKNOWLEDGEMENT from USCA of receipt of record − appeal case # 01−1333, 01−1416, 01−1418. (cf) (Entered: 08/03/2001)
234 ACKNOWLEDGEMENT from USCA of receipt of record − appeal case # 01−1438. (cf) (Entered: 08/03/2001)
235 NOTICE from the US Supreme Court that a petition for writ of certiorari was filed and placed on the docket (kg) (Entered: 10/31/2002)
236 NOTICE from the US Supreme Court that a petition for writ of certiorari was filed and placed on the docket (kg) (Entered: 10/31/2002)
237 ORDER from the U.S. Supreme Court denying writ of certiorari regarding − appeal case # 01−1333/01−1416/01−1414/01−1438 [EOD Date: 12/16/02] (cm) (Entered: 12/16/2002)
238 ORDER from the U.S.Supreme Court of limited grantof writ of certiorari regarding question 1 − appeal case # 01−1333/01−1416/01−1418/01−1438 [EOD Date 12/16/02] (cm) (Entered: 12/16/2002)
239 LETTER by US Supreme Court requesting case file be sent directly to their office (kg) (Entered: 02/07/2003)
240 SLIP opinion from USCA reversing that portion of the District Court's decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion − appeal case # 01−1333,01−1416,01−1418, 01−1438 (LS) (Entered: 07/09/2003)
241 NON−CERTIFIED copy of order from USCA case [0−0] − appeal case # 01−1333; 01−1416; 01−1418; 01−1438 (nh) (Entered: 08/05/2003)
242 CERTIFIED copy of order from USCA pursuant to the Supreme Courts decision reversing the District Court in part and remanding for further proceedings, therefore the cases are remanded to the District Court for further proceedings in conformity with the opinion of the Supreme Court − appeal case # 01−1333,1416,1418,1438 (LS) (Entered: 11/06/2003)
244 APPEARANCE for plaintiffs: Patrick Humacher and Jennifer Gratz of attorney Glen N. Lenhoff; with proof of service (jg) (Entered: 11/12/2003)
243 APPEARANCE for plaintiff Patrick Humacher and plaintiff Jennifer Gratz of attorney James K. Fett; proof of service (jg) (Entered: 11/07/2003)
STATUS conference held − Judge Patrick J. Duggan (mo) (Entered: 11/06/2003)
245 MANDATE from USCA reversing and remanding the case for further proceedings − appeal case # 01−1333,1416,1418,1438 (jg) (Entered: 11/26/2003)
246 RECORD of appeal notices by intervening defendants, appellant [49−1], [220−1]; and by Patrick Humacher, and Jennifer Gratz [212−1], returned from USCA − appeal case # 01−1333,01−1416,01−1418, and 01−1438 (jg) (Entered: 12/18/2003)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 34 of 36

06/30/2004 06/30/2004
06/30/2004 06/30/2004 06/30/2004 06/30/2004 07/06/2004 09/03/2004
09/24/2004 10/01/2004 10/01/2004
10/18/2004 10/18/2004 10/21/2004 10/21/2004 10/21/2004 11/10/2004 11/19/2004 11/19/2004

247 MOTION for Attorney Fees and Costs by Jennifer Gratz, Patrick Humacher. (DHame, ) (Entered: 07/08/2004)
248 AFFIDAVIT of Kirk O. Kolbo re 247 MOTION for Attorney Fees MOTION for Costs by plaintiffs (Attachments: # 1 Document Continuation # 2 Document Continuation # 3 Document Continuation # 4 Document Continuation # 5 Document Continuation # 6 Document Continuation # 7 Document Continuation)(DHame, ) (Entered: 07/08/2004)
249 CERTIFICATE OF SERVICE by Jennifer Gratz, Patrick Humacher re 247 MOTION for Attorney Fees and MOTION for Costs, 248 Affidavit,. (DHame, ) (Entered: 07/08/2004)
250 AFFIDAVIT of Mark L. Kowalsky re 247 MOTION for Attorney Fees MOTION for Costs (DHame, ) (Entered: 07/08/2004)
251 AFFIDAVIT of Kerry L. Morgan re 247 MOTION for Attorney Fees MOTION for Costs with attachment A (DHame, ) (Entered: 07/08/2004)
252 STATEMENT of Michael E. Rosman (Attachments: # 1 Document Continuation # 2 Document Continuation # 3 Document Continuation # 4 Document Continuation)(DHame, ) (Entered: 07/08/2004)
253 CERTIFICATE OF SERVICE by Jennifer Gratz, Patrick Humacher re 247 MOTION for Attorney Fees MOTION for Costs, 248 Affidavit,, 250 Affidavit, 251 Affidavit. (DHame, ) (Entered: 07/12/2004)
254 RESPONSE brief in opposition with attachments A−E to 247 MOTION for Attorney Fees MOTION for Costs filed by Lee Bollinger, James T. Duderstadt, University of Michigan, University of Michigan College of Literature, Arts and Science. (DHame, ) (Entered: 09/08/2004)
255 Letter from Kirk O. Kolbo (DHame, ) (Entered: 09/27/2004)
256 REPLY to Response re 247 MOTION for Attorney Fees MOTION for Costs filed by Jennifer Gratz, Patrick Humacher. (Kolbo, Kirk) (Entered: 10/01/2004)
257 AFFIDAVIT of Kirk O. Kolbo re 256 Reply to Response to Motion For an Interim Award of Attorneys' Fees and Costs Pursuant to 42 U.S.C. Section 1988 filed by Jennifer Gratz, Patrick Humacher. (Attachments: # 1 Index of Exhibits # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E)(Kolbo, Kirk) (Entered: 10/01/2004)
258 SUPPLEMENTAL BRIEF with attachments 1,2 in opposition to 247 MOTION for Attorney Fees MOTION for Costs filed by all defendants. (DHame, ) (Entered: 10/20/2004)
259 EXHIBIT 2 re 258 Supplemental Brief by all defendants. (DHame, ) (Entered: 10/20/2004)
260 MOTION to allow limited discovery related to fees and costs by all plaintiffs. (DHame, ) (Entered: 10/25/2004)
261 AFFIDAVIT of Kirk O. Kolbo with attachments A−H.(DHame, ) (Entered: 10/25/2004)
262 CERTIFICATE OF SERVICE re 260 MOTION to allow limited discovery related to fees and costs, 261 Affidavit. (DHame, ) (Entered: 10/25/2004)
263 RESPONSE brief in opposition with attachment A to 260 MOTION to allow limited discovery related to fees and costs filed by defendants. (DHame, ) (Entered: 11/15/2004)
264 REPLY to Response re 260 MOTION to allow limited discovery related to fees and costs filed by Jennifer Gratz, Patrick Humacher. (Kolbo, Kirk) (Entered: 11/19/2004)
265 AFFIDAVIT of Kirk O. Kolbo re 264 Reply to Response to Motion filed by Jennifer Gratz, Patrick Humacher. (Attachments: # 1 Index of Exhibits # 2 Exhibit A)(Kolbo, Kirk) (Entered: 11/19/2004)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 35 of 36

12/08/2004 12/08/2004 12/08/2004
01/19/2005
01/19/2005 01/27/2005
01/27/2005 01/28/2005
01/31/2005 02/22/2005 03/23/2005 04/06/2005 04/19/2005 04/20/2005 05/09/2005 05/09/2005 05/23/2005 08/05/2005 09/15/2005

266 MOTION for Partial Summary Judgment on Liability by Jennifer Gratz, Patrick Humacher. (Kolbo, Kirk) (Entered: 12/08/2004)
267 MOTION to Certify Class, MOTION for Partial Summary Judgment by Jennifer Gratz, Patrick Humacher. (Kolbo, Kirk) (Entered: 12/08/2004)
268 AFFIDAVIT of Kirk O. Kolbo re 267 MOTION to Certify Class MOTION for Partial Summary Judgment filed by all plaintiffs. (Attachments: # 1 Index of Exhibits # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J)(Kolbo, Kirk) (Entered: 12/08/2004)
269 MOTION for stay of briefing and hearing on plaintiffs' motion for class certification and partial summary judgment with respect to certain nominal and incidential damages claims and for certification of a subclass to determine compensatory damages claims by defendants. (DHame, ) (Entered: 01/24/2005)
270 RESPONSE to 266 MOTION for Partial Summary Judgment on Liability, 267 MOTION to Certify Class MOTION for Partial Summary Judgment filed by defendants. (DHame, ) (Entered: 01/24/2005)
271 ORDER granting in part and denying in part 247 Motion for Attorney Fees, granting in part and denying in part 247 Motion for Costs, denying 260 Motion to allow limited discovery related to fees and costs− Signed by Honorable Patrick J Duggan. (DHame, ) (Entered: 01/28/2005)
272 OPINION re 260 MOTION to allow limited discovery related to fees and costs, 247 MOTION for Attorney Fees MOTION for Costs Signed by Honorable Patrick J Duggan. (DHame, ) (Entered: 01/28/2005)
273 REPLY to Response re 266 MOTION for Partial Summary Judgment on Liability, 267 MOTION to Certify Class MOTION for Partial Summary Judgment, 269 MOTION to Stay filed by Jennifer Gratz, Patrick Humacher. (Kolbo, Kirk) (Entered: 01/28/2005)
Minute Entry −Status Conference held on 1/31/2005 before Honorable Patrick J Duggan. (MOre, ) (Entered: 02/01/2005)
274 MEMORANDUM Regarding (1) Burden of Proof; (2) Legal Standard; and (3) Standing by Jennifer Gratz, Patrick Humacher.(Kolbo, Kirk) (Entered: 02/22/2005)
275 RESPONSE to 274 plaintiffs' brief regarding (1) standing (2) burden of proof and (3) legal standard by defendants. (DTyle, ) (Entered: 03/28/2005)
276 REPLY to 275 Response (Free) Regarding (1) Burden of Proof; (2) Legal Standard; and (3) Standing by Jennifer Gratz, Patrick Humacher. (Kolbo, Kirk) (Entered: 04/06/2005)
278 MOTION for Leave to File suppleental brief by all defendants. (KGeha, ) (Entered: 04/21/2005)
277 RESPONSE : Plaintiffs' Brief in Opposition to Defendants' Motion for Leave to File a Sur−Reply by all plaintiffs. (Attachments: # 1 Affidavit of Kirk O. Kolbo# 2 Index of Exhibits # 3 Exhibit A# 4 Exhibit B)(Kolbo, Kirk) (Entered: 04/20/2005)
279 ORDER granting 269 Motion to Stay, granting 278 Motion for Leave to File− Signed by Honorable Patrick J Duggan. (MOre, ) (Entered: 05/09/2005)
280 SUPPLEMENTAL BRIEF re 274 Memorandum filed by all defendants. (KGeha, ) (Entered: 05/10/2005)
281 RESPONSE to 280 Supplemental Brief Regarding (1) Standing; (2) Burden of Proof; and (3) Legal Standard by all plaintiffs. (Kolbo, Kirk) (Entered: 05/23/2005)
282 OPINION Regarding Standing, Standard and Burden of Proof Signed by Honorable Patrick J Duggan. (MOre, ) (Entered: 08/05/2005)
Minute Entry −Telephone Conference held on 9/15/2005 before Honorable Patrick J Duggan. (MOre, ) (Entered: 09/15/2005)

Case: 2:97-cv-75231 As of: 09/20/2012 10:07 AM EDT 36 of 36

09/26/2005 01/26/2007
01/31/2007

283 Letter from plaintiff regarding status conference. (KGeha, ) (Entered: 09/28/2005)
284 Joint MOTION to Dismiss and for Court Approval of Settlement and Notice Plan by all defendants. (Niehoff, Leonard) (Entered: 01/26/2007)
285 ORDER APPROVING SETTLEMENT &NOTICE PLAN, DECERTIFYING CLASS AND DISMISSING CASE Signed by Honorable Patrick J Duggan. (MOre, ) (Entered: 01/31/2007)

 
 188 F.3d 394 United States Court of Appeals,
Sixth Circuit.
Barbara GRUTTER, for herself and all others similarly situated, Plaintiffs-Appellees, v. Lee BOLLINGER, et al., Defendants,
Kimberly James, et al., Proposed Intervening Defendants-Appellants,
Jennifer Gratz, Patrick Hamacher, and all others similarly situated, Plaintiffs-Appellees, v. Lee Bollinger, et al., Defendants,
Ebony Patterson, et al., Proposed Intervening Defendants-Appellants.
Nos. 98-2009, 98-2248. | Argued June 8, 1999. | Decided Aug. 10, 1999.
Plaintiffs filed separate complaints alleging that university’s admissions policy impermissibly utilized race as a factor in determining admissions. The United States District Court for the Eastern District of Michigan, Patrick J. Duggan, J., 183 F.R.D. 209, and Bernard A. Friedman, J., denied motions to intervene filed by prospective minority applicants for admission to university and non-profit organizations dedicated to preserving higher educational opportunities for minority students. Proposed intervenors appealed. On consolidated appeals, the Court of Appeals, Daughtrey, Circuit Judge, held that: (1) proposed interventors had a sufficient substantial legal interest to support intervention as of right; (2) proposed intervenors made sufficient showing that impairment of their substantial legal interest was possible if intervention was denied; and (3) proposed intervenors established possibility that university would not adequately represent their interest in underlying actions.
Reversed, remanded, and vacated.
Stafford, District Judge, sitting by designation, filed a dissenting opinion.
Attorneys and Law Firms
*396 Kerry L. Morgan (briefed), Taylor, MI, David F. Herr (argued and briefed), Kirk O. Kolbo (briefed), Maslon, Edelman, Borman & Brand, Minneapolis, MN, Michael E. Rosman (briefed), Center for Individual Rights, Washington, D.C., for Plaintiffs-Appellees.

Leonard M. Niehoff, Butzel Long, Detroit, MI, John Payton, Wilmer, Cutler & Pickering, Washington, DC, for Defendants-Appellees, Bollinger, Duderstadt, University of Michigan, University of Michigan College of Literature, Arts and Science in No. 98-2248.
Reginald M. Turner, Jr. (briefed), Sachs, Nunn, Kates, Kadushin, O’Hare, Helveston & Waldman, Detroit, MI, Philip J. Kessler, Butzel Long, Detroit, MI, Theodore M. Shaw (argued and briefed), Olatunde C.A. Johnson (briefed), NAACP Legal Defense & Educational Fund, New York, NY, Godfrey J. Dillard (briefed), Evans & Luptak, Detroit, MI, Christopher A. Hansen (briefed), American Civil Liberties Union Foundation, New York, NY, Leonard M. Niehoff, Butzel Long, Ann Arbor, MI, Milton R. Henry (briefed), Bloomfield Hills, MI, Brent E. Simmons (briefed), ACLU Fund of Michigan, Lansing, MI, Michael J. Steinberg (briefed), ACLU Fund of Michigan, Detroit, MI, Patricia Mendoza (briefed), Amalia S. Rioja, Mexican American Legal Defense and Educational Fund, Chicago, IL, for Proposed Intervening Defendants-Appellants.
Philip J. Kessler, Butzel Long, Detroit, MI, John Payton, Wilmer, Cutler & Pickering, Washington, DC, Leonard M. Niehoff, Butzel Long, Ann Arbor, MI, for Defendant Bollinger in No. 98-2009.
George B. Washington (briefed), Miranda K.S. Massie (argued and briefed), Scheff & Washington, Detroit, MI, for Movants-Appellants in No. 98-2009.
Before: DAUGHTREY and MOORE, Circuit Judges; STAFFORD,* District Judge.
Opinion
DAUGHTREY, J., delivered the opinion of the court, in which MOORE, J., joined. STAFFORD, D.J. (p. 401), delivered a separate dissenting opinion.
OPINION
DAUGHTREY, Circuit Judge.
Before us are two cases in which proposed defendant-intervenors were denied intervention under Federal Rule of Civil Procedure 24(a) and (b), in actions brought against the University of Michigan contesting the

use of an applicant’s race as a factor in determining admission. The appeals come from separate district courts but present similar, and in some instances the same, issues for our consideration. We have therefore consolidated the two cases for purposes of this opinion, and we find in both instances that the district courts erred in denying intervention under Rule 24(a).
PROCEDURAL AND FACTUAL BACKGROUND
In each of the cases before the court, a group of students and one or more coalitions appeal the denial of their motion to intervene in a lawsuit brought to challenge a race-conscious admissions policy at the University of Michigan. The named plaintiffs in Gratz v. Bollinger are two white applicants who were denied admission to the College of Literature, Arts and Science. *397 They allege that the College’s admissions policy violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. The plaintiffs seek compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the College. The intervenors are 17 African-American and Latino/a individuals who have applied or intend to apply to the University, and the Citizens for Affirmative Action’s Preservation (CAAP), a nonprofit organization whose stated mission is to preserve opportunities in higher education for African-American and Latino/a students in Michigan. The intervenors claim that the resolution of this case directly threatens the access of qualified African-American and Latino/a students to public higher education and that the University will not adequately represent their interest in educational opportunity. The district court denied their motion for intervention as of right, holding that the plaintiffs did not have a substantial interest in the litigation and that the University could adequately represent the proposed intervenors’ interests. The district court also denied the proposed intervenors’ alternative motion for permissive intervention.
The named plaintiff in Grutter v. Bollinger is a white woman challenging the admissions policy of the University of Michigan Law School. Like the plaintiffs in Gratz, she alleges that the race-conscious admissions policy utilized by the law school violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. Grutter seeks compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the law school. The proposed intervenors are 41 students and

three pro-affirmative action coalitions. As described by the district court:

[The] individual proposed

intervenors

include

21

undergraduate students of various

races who currently attend [various

undergraduate institutions], all of

whom plan to apply to the law

school for admission; five black

students who currently attend [local

high schools] and who also plan to

apply to the law school for

admission; 12 students of various

races who currently attend the law

school; a paralegal and a Latino

graduate student at the University

of Texas at Austin who intend to

apply to the law school for

admission; and a black graduate

student at the University of

Michigan who is a member of the

Defend Affirmative Action Party.

The plaintiff opposed the motion to intervene, but the defendants, various officials of the Law School and the University, did not oppose the motion. The district court denied the motion to intervene as of right on the basis that the intervenors failed to show that their interests would not be adequately represented by the University. The district court also denied the proposed intervenors’ alternative motion for permissive intervention.

DISCUSSION
[1] [2] The proposed intervenors in each of these cases contend principally that the district court erred by denying their motion to intervene as of right. Fed.R.Civ.P. 24 provides in pertinent part:
Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

In this circuit, proposed intervenors must establish four elements in order to be entitled to intervene as a matter of right: (1) that the motion to intervene was timely; *398 (2) that they have a substantial legal interest in the subject matter of the case; (3) that their ability to protect that interest may be impaired in the absence of intervention; and (4) that the parties already before the court may not adequately represent their interest. See Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.1990). A district court’s denial of intervention as of right is reviewed de novo, except for the timeliness element, which is reviewed for an abuse of discretion. Id. The district court held in each of these cases that the motion for intervention was timely, and the plaintiffs do not contest this finding on appeal. We will therefore consider the motions timely and need address only the three remaining elements.
Substantial Legal Interest
[3] [4] The proposed intervenors must show that they have a substantial interest in the subject matter of this litigation. See Jansen, 904 F.2d at 341. However, in this circuit we subscribe to a “rather expansive notion of the interest sufficient to invoke intervention of right.” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997). For example, an intervenor need not have the same standing necessary to initiate a lawsuit. See id.; Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir.1991). We have also “cited with approval decisions of other courts ‘reject[ing] the notion that Rule 24(a)(2) requires a specific legal or equitable interest.’ ” Miller, 103 F.3d at 1245 (quoting Purnell, 925 F.2d at 948). “The inquiry into the substantiality of the claimed interest is necessarily fact-specific.” Id.
The proposed intervenors argue that their interest in maintaining the use of race as a factor in the University’s admissions program is a sufficient substantial legal interest to support intervention as of right. Specifically, they argue that they have a substantial legal interest in educational opportunity, which requires preserving access to the University for African-American and Latino/a students and preventing a decline in the enrollment of African-American and Latino/a students. The district court in Grutter “assumed without deciding” that the proposed intervenors do have a significant legal interest in this case and that their ability to protect that interest may be impaired by an adverse ruling in the underlying case. The district court in Gratz, however, determined that the proposed intervenors did not have a direct and substantial interest which is “legally protectable” and that they therefore failed to establish this required element. We conclude that Sixth Circuit precedent requires a finding to

the contrary.
In Jansen, 904 F.2d at 338-39, black applicants and employees of the city’s fire department sought to intervene in a reverse discrimination lawsuit challenging the department’s use of a quota system. We noted that the proposed intervenors were parties to an earlier consent decree setting goals for minority hiring and found that the proposed intervenors did have a significantly protectable interest in the affirmative action challenged in the lawsuit. See id. at 342. The district court in Gratz distinguished Jansen, as well as In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492 (11th Cir.1987), aff’d. sub. nom., Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), on which this court relied in Jansen, on the basis that the proposed intervenors in both Jansen and In re Birmingham had a legally protected interest only by virtue of their status as parties to a consent decree. As the proposed intervenors point out, however, neither Jansen nor In re Birmingham stands for the proposition that an interest must be protected by means of a consent decree or by any other particular means in order for the proposed intervenors to be able to establish that they have a substantial legal interest.
[5] The Gratz district court’s opinion relies heavily on the premise that the proposed intervenors do not have a significant *399 legal interest unless they have a “legally enforceable right to have the existing admissions policy construed.” We conclude that this interpretation results from a misreading of this circuit’s approach to the issue. As noted earlier, we have repeatedly “cited with approval decisions of other courts ‘reject[ing] the notion that Rule 24(a)(2) requires a specific legal or equitable interest.’ ” Miller, 103 F.3d at 1245; see also Purnell, 925 F.2d at 948. For example, in Miller, the Michigan Chamber of Commerce sought to intervene in a suit by labor unions challenging an amendment to Michigan’s Campaign Finance Act, Mich. Comp. Laws Ann. §§ 169.201-.282 (1996), which extended the application of statutory restrictions on corporate political expenditures so that they applied to unions as well as to corporations. See id. at 1243-44. The majority found that the Chamber of Commerce did have a substantial legal interest by virtue of its role in the political process that resulted in the adoption of the contested amendments. Id. at 1247. The Chamber of Commerce was therefore allowed to intervene as of right, although the Chamber had no legal “right” to the enactment of the challenged legislation. We believe that the district court’s attempt to distinguish Miller, as well as Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir.1993) (holding that voters and organizations were entitled to intervene in action by African-American and Latino citizens against the county for violation of Voting Rights Act) and Citizens for

Legislative Choice v. Miller, No. 97-CV-73777-DT (E.D.Mich. Oct. 15, 1997) (holding that organization was entitled to intervene in action challenging constitutionality of term limits provision for which it had lobbied), on the sole basis that those cases involved challenges to legislation, was misguided. The case law of this circuit does not limit the finding of a substantial interest to cases involving the legislative context, any more than it limits such a finding to cases involving a consent decree. Neither a legislative context nor the existence of a consent decree is dispositive as to whether proposed intervenors have shown that they have a significant interest in the subject matter of the underlying case. We find that the interest implicated in the case now before us is even more direct, substantial, and compelling than the general interest of an organization in vindicating legislation that it had previously supported. This case is, if anything, a significantly stronger case for intervention than Miller and many of the cases on which Miller relied.
[6] Even if it could be said that the question raised is a close one, “close cases should be resolved in favor of recognizing an interest under Rule 24(a).” Miller, 103 F.3d at 1247. The proposed intervenors have enunciated a specific interest in the subject matter of this case, namely their interest in gaining admission to the University, which is considerably more direct and substantial than the interest of the Chamber of Commerce in Miller-a much more general interest. We therefore hold that the district court erred in Gratz in failing to rule that the proposed intervenors have established that they have a substantial legal interest in the subject matter of this case.
Impairment
[7] [8] “To satisfy this element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.” Miller, 103 F.3d at 1247 (citing Purnell, 925 F.2d at 948). As noted above, the district court in Grutter “assumed without deciding” that the proposed intervenors met this element. The district court in Gratz, however, determined that because “the proposed intervenors [ ] failed to articulate the existence of a substantial legal interest in the subject matter of the instant litigation, it necessarily follows that the proposed intervenors cannot demonstrate an impairment of any interest.” The proposed intervenors in Gratz continue to argue on appeal that a decision *400 in favor of the plaintiff will adversely affect their interest in educational opportunity by diminishing their likelihood of obtaining admission to the University and by reducing the number of African-American and Latino/a students at the

University.
As we have now decided, the district court erred in determining that the proposed intervenors did not have a substantial interest in the subject matter of this case. Consequently, we must likewise conclude that the district court erred in its analysis of the impairment element as well. There is little room for doubt that access to the University for African-American and Latino/a students will be impaired to some extent and that a substantial decline in the enrollment of these students may well result if the University is precluded from considering race as a factor in admissions. Recent experiences in California and Texas suggest such an outcome. The probability of similar effects in Michigan is more than sufficient to meet the minimal requirements of the impairment element.
Inadequate Representation
[9] [10] Finally, the prospective intervenors must show that the existing defendant, the University, may not adequately represent their interests. However, the proposed intervenors are “not required to show that the representation will in fact be inadequate.” Miller, 103 F.3d at 1247. Indeed, “[i]t may be enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor’s arguments.” Id.
As a preliminary matter, there is some dispute about the relevant standard for determining whether this element has been met when the existing defendant is a governmental entity. The district court in Gratz mentioned that the plaintiff relied on Hopwood v. State of Texas, 21 F.3d 603 (5th Cir.1994), for the proposition that a stronger showing of inadequacy is required when a governmental agency is involved as the existing defendant. On reconsideration, however, the district court made clear that it had simply noted the plaintiff’s argument in regard to the higher Hopwood standard but had not applied this higher standard. In Grutter, by contrast, the district court does appear to have applied the more demanding Hopwood standard. However, this circuit has declined to endorse a higher standard for inadequacy when a governmental entity in involved. For example, in Miller, where the defendants included the Secretary of State and the Attorney General, this court clearly stated that the proposed intervenors were required only to show that the representation might be inadequate. See Miller, 103 F.3d at 1247. The district court in Grutter therefore erred in applying the higher standard articulated by the Fifth Circuit in Hopwood.

The proposed intervenors insist that there is indeed a possibility that the University will inadequately represent their interests, because the University is subject to internal and external institutional pressures that may prevent it from articulating some of the defenses of affirmative action that the proposed intervenors intend to present. They also argue that the University is at less risk of harm than the applicants if it loses this case and, thus, that the University may not defend the case as vigorously as will the proposed intervenors. The district court in Gratz, however, found that the proposed intervenors did not identify any specific separate or additional defenses that they will present that the University will not present. The district court in Grutter also found that the proposed intervenors failed to show that the University would not adequately represent their interests.

district court’s decision in each of these cases denying the motion for intervention as of right cannot be sustained. While this determination renders moot the question of permissive intervention under Rule 24(b), we do not believe that the denial of intervention on a permissive basis was erroneous.
The order of the district court in each case denying intervention is REVERSED and the cases are REMANDED for entry of an order permitting intervention by the proposed defendant-intervenors under Rule 24(a). The order previously entered in this court staying proceedings in the district courts is hereby VACATED.

[11] We conclude that the district court erred in each of these cases. The Supreme Court has held, and we have reiterated, that the proposed intervenors’ burden in showing inadequacy is “minimal.” See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972); Linton v. Commissioner of Health & Env’t., 973 F.2d 1311, 1319 (6th Cir.1992). The proposed intervenors need show only that there is a potential for inadequate representation. *401 See id. The proposed intervenors in these two cases have presented legitimate and reasonable concerns about whether the University will present particular defenses of the contested race-conscious admissions policies. We find persuasive their argument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy. We must therefore conclude that the proposed intervenors have articulated specific relevant defenses that the University may not present and, as a consequence, have established the possibility of inadequate representation.
CONCLUSION

STAFFORD, District Judge, dissenting.
I cannot agree that the proposed intervenors in these cases have established their right to intervene as of right. I do not believe, nor do I think Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.1997), compels us to find, that the proposed intervenors’ subjective fears are sufficient to satisfy their burden, however minimal, of showing that the University of Michigan will not adequately represent the proposed intervenors’ interests in these two lawsuits. Unlike the State of Michigan in Miller, the University of Michigan here has in no way “demonstrated that it will not adequately represent and protect the interests held by the [proposed intervenors].” Miller, 103 F.3d at 1248. There is nothing in the record of either case to suggest that the University of Michigan will not zealously defend its voluntarily-adopted admissions policies, will not present all relevant evidence in support of its admissions policies, will not resist unspecified pressures that could temper its ability to defend its admissions policies, or will not raise all defenses or make all arguments that the prospective intervenors may raise or make. Because I do not think that we should substitute our judgment for the informed judgment of the two respective trial judges who determined that, based on the record before them, intervention was not merited, I must respectfully dissent.

For the reasons set out above, we find that the proposed intervenors have shown that they have a substantial legal interest in the subject matter of this matter, that this interest will be impaired by an adverse determination, and that the existing defendant, the University, may not adequately represent their interest. Hence, the proposed intervenors are entitled to intervene as of right and the

Parallel Citations
44 Fed.R.Serv.3d 452, 137 Ed. Law Rep. 907, 1999 Fed.App. 0295P

Footnotes

*

The Honorable William H. Stafford, United States District Judge for the Northern District of Florida, sitting by designation.

 
 277 F.3d 803 United States Court of Appeals,
Sixth Circuit.
Jennifer GRATZ and Patrick Hamacher for Themselves and All Other Similarly Situated, Plaintiffs-Appellants (01-1333 and 01-1418),
Plaintiffs-Appellees (01-1416), v.
Lee BOLLINGER, et al., Defendants-Appellees (01-1333 and 01-1418) Defendants-Appellants
(01-1416), Ebony Patterson, et al., Defendants-Appellees (01-1333) Intervening Defendants (01-1416) Intervening Defendants-Appellees (01-1418) Intervening Defendants-Appellants (01-1438) Barbara Grutter, Plaintiff-Appellee (01-1447 and
01-1516), v.
Lee Bollinger, et al., Defendants-Appellants (01-1447), and
Kimberly James, et al., Intervening Defendants-Appellants (01-1516).
No. 01-1333, 01-1416, 01-1418, 01-1438, 01-1516. | Oct. 19, 2001.
Before: MARTIN, Chief Circuit Judge; BOGGS, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges. Prior Report: 247 F.3d 631

Opinion
ORDER
The plaintiffs in these consolidated appeals filed a petition seeking initial en banc review of the decisions of the two district courts before whom the cases were heard. The petition was referred to the three-judge panel to which the appeals had been assigned for oral argument on October 23, 2001.
The panel requested that all of the active judges of the court be polled to determine whether or not the petition should be granted and the appeals be presented in the first instance to the en banc court for argument and decision. A majority of the active judges voted to grant the petition; therefore
IT IS ORDERED that the petition for initial hearing en banc be, and it hereby is, GRANTED. It is FURTHER ORDERED the oral argument scheduled for October 23, 2001 is cancelled; oral argument *804 to the en banc court will be on Thursday, December 6, 2001, at 1:30 P.M., EST, in Cincinnati, Ohio.
Parallel Citations
160 Ed. Law Rep. 755

 
 309 F.3d 329 United States Court of Appeals,
Sixth Circuit.
Jennifer GRATZ and Patrick Hamacher, for themselves and all others similarly situated,
Plaintiffs—Appellants (Nos. 01–1333 and 01–1418) Plaintiffs—Appellees (No. 01–1416)
v. Lee BOLLINGER, et al., Defendants—Appellees
(Nos. 01–1333 and 01–1418) Defendants—Appellants (No. 01–1416) Ebony Patterson, et al., Defendants—Appellees (No. 01–1333) Intervening Defendants (No. 01–1416) Intervening Defendants–Appellees (No. 01–1418) Intervening Defendants–Appellants
(No. 01–1438) Barbara Grutter, Plaintiff—Appellee (Nos.
01–1447 and 01–1516) Lee Bollinger, et al. Defendants—Appellants (No.
01–1447) Kimberly James, et al., Intervening Defendants–Appellants (No. 01–1516)
Nos. 01–1333, 01–1416, 01–1418, 01–1438, 01–1447, 01–1516. | Nov. 16, 2001.
Before: MARTIN, Chief Circuit Judge; BOGGS, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.
Opinion
ORDER
These consolidated matters now come before the court upon the motion of Plaintiff–Appellee Grutter (Nos. 01–1447/1516) for an order terminating this court’s previously entered stay of the injunction issued by the district court, and upon the joint motion of the University defendants to expand the time allotted for oral argument. By order of October 19, 2001 the court had directed that these appeals be heard by the court sitting en banc.
On April 5, 2001 a panel of the court considered a motion of the University defendants in No. 01–1447 requesting a stay of the order of the district court. Having found that motion well taken, the court ordered the injunction stayed during the pendency of the appeal. The court has now

considered the instant motion to terminate that stay and the response filed in opposition to the motion. A majority of the judges in regular active service having voted against the motion,
IT IS ORDERED that the motion to terminate the stay be, and it hereby is, DENIED.
Upon consideration of the defendants’ motion to enlarge the time for oral argument and having considered as well the response to the motion, a majority of the judges in regular active service have voted that oral argument proceed as follows:
In Nos. 01–1333/1416/1418, Gratz, et al. v. Bollinger, et al.
Plaintiffs will have 20 minutes for argument
University defendants will have 15 minutes for argument
Intervening minority students will have 5 minutes for argument
In No. 01–1438, Gratz, et al. v. Bollinger, et al.
*330 Intervening minority students will have 15 minutes for argument (including any argument time ceded to the University defendants)
Gratz appellees will have 15 minutes for argument
In Nos. 01–1447/1516, Grutter v. Bollinger, et al.
University defendants will have 20 minutes for argument (including any argument time ceded to intervening minority students)
Plaintiff will have 20 minutes for argument
Oral argument will be held in Cincinnati, Ohio on Thursday, December 6, 2001, beginning at 1:30 P.M. The argument will be held in Room 403, Potter Stewart United States Courthouse. The cases will be called as shown above.
Parallel Citations
171 Ed. Law Rep. 727
1

2

 
 80 Fed.Appx. 417 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
Jennifer GRATZ, et al., Plaintiffs-Appellants (Nos.01-1333/1418) Plaintiffs-Appellees (Nos.01-1416/1438), v. Lee BOLLINGER, et al.,
Defendants-Appellees(Nos.01-1333/1418/1438), Ebony PATTERSON, et al., Defendants-Appellants
(No. 01-1438).
Nos. 01-1333, 01-1416, 01-1418, 01-1438. | Oct. 29, 2003.

Attorneys and Law Firms

David F. Herr, Kirk O. Kolbo, R. Lawrence Purdy,

Michael C. McCarthy, Kai H. Richter, Maslon, Edelman,

Borman & Brand, Minneapolis, MN, Michael E. Rosman,

Washington,

DC,

for

Plaintiffs-Appellants/Plaintiffs-Appellees.

Brent E. Simmons, Lansing, MI, for Plaintiff-Appellee/Defendants-Appellees/Defendants-App ellants.

Philip J. Kessler, Butzel Long, Detroit, MI, John Payton, John H. Pickering, Craig Goldblatt, Anne Harkavy, Brigida Benitez, Stuart F. Delery, Robin A. Lenhardt, Tonya T. Robinson, Wilmer, Cutler & Pickering, Washington, DC, Leonard M. Niehoff, Butzel Long, Ann Arbor, MI, for Defendants-Appellees.

Theodore M. Shaw, Olatunde C.A. Johnson, Melissa S.

Woods, NAACP Legal Defense & Educational Fund,

Christopher A. Hansen, E. Vincent Warren, American

Civil Liberties Union Foundation, New York, NY,

Patricia Mendoza, Mexican American Legal Defense and

Educational Fund, Chicago, IL, Brent E. Simmons,

Lansing,

MI,

for

Defendants-Appellees/Defendants-Appellants.
Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI, for Defendants-Appellants.
Daniel W. Sherrick, Catherine J. Trafton, Associate General Counsel, Detroit, MI, Alexander E. Dreier, Hogan & Hartson, Thomas J. Henderson, Lawyers’ Committee for Civil Rights Under Law, Mireya A.R. Llaurado, Heller, Ehrman, White & McAuliffe, Kenneth S. Geller, Eileen Penner, Mayer, Brown, Rowe & Maw, Washington, DC, Susan I. Leffler, Asst. Attorney Gen., Office of the Attorney General, Lansing, MI, Martha F. Davis, Spenta R. Cama, NOW Legal Defense and Education Fund, New York, NY, Michael K. Lee, Southfield, MI, for Amicus Curiae.
Before BOGGS, Chief Circuit Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.
Opinion
ORDER
This matter comes before the court pursuant to the judgment of the United States Supreme Court reversing the District Court in part and remanding for further proceedings in conformity with its opinion of June 23, 2003.
Upon consideration, the cases are remanded to the United States District Court for the Eastern District of Michigan for further proceedings in conformity with the opinion of the Supreme Court.
IT IS SO ORDERED.
Parallel Citations
2003 WL 22474627 (C.A.6 (Mich.))

 
 539 U.S. 244 (2003)
GRATZ ET AL. v.
BOLLINGER ET AL.
No. 02-516.
Supreme Court of United States.
Argued April 1, 2003. Decided June 23, 2003. CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
24567 *245 *246 *247 REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a concurring opinion, in which BREYER, J., joined in part, post, p. 276. THOMAS, J., filed a concurring opinion, post, p. 281. BREYER, J., filed an opinion concurring in the judgment, post, p. 281. Stevens, J., filed a dissenting opinion, in which SOUTER, J., joined, post, p. 282. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined as to Part II, post, p. 291. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined, and in which BREYER, J., joined as to Part I, post, p. 298.
248 *248 Kirk O. Kolbo argued the cause for petitioners. With him on the briefs were David F. Herr, R. Lawrence Purdy, Michael C. McCarthy, Michael E. Rosman, Hans Bader, and Kerry L. Morgan.
Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Boyd and Deputy Solicitor General Clement.
John Payton argued the cause for respondents. With him on the brief for respondent Bollinger et al. were John H. Pickering, Brigida Benitez, Craig Goldblatt, Terry A. Maroney, Maureen E. Mahoney, Marvin Krislov, Jonathan Alger, Jeffrey Lehman, Evan Caminker, Philip J. Kessler, and Leonard M. Niehoff. Theodore M. Shaw, Norman J. Chachkin, James L. Cott, Melissa S. Woods, Christopher A. Hansen, Brent E. Simmons, Michael J. Steinberg, Antonia Hernandez, Patricia Mendoza, Godfrey J. Dillard, and Milton R. Henry filed a brief for respondent Patterson et al.[*]
249 *249 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari in this case to decide whether "the University of Michigan's use of racial preferences in 250 undergraduate *250 admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI 251 of the Civil Rights Act of 1964 (42 U. S. C. § 2000d), or 42 U. S. C. § 1981." Brief *251 for Petitioners i.
Because we find that the manner in which the University considers the race of applicants in its undergraduate admissions guidelines violates these constitutional and statutory provisions, we reverse that portion of the District Court's decision upholding the guidelines.

I
A
Petitioners Jennifer Gratz and Patrick Hamacher both applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as residents of the State of Michigan. Both petitioners are Caucasian. Gratz, who applied for admission for the fall of 1995, was notified in January of that year that a final decision regarding her admission had been delayed until April. This delay was based upon the University's determination that, although Gratz was "`well qualified,'" she was "`less competitive than the students who ha[d] been admitted on first review.'" App. to Pet. for Cert. 109a. Gratz was notified in April that the LSA was unable to offer her admission. She enrolled in the University of Michigan at Dearborn, from which she graduated in the spring of 1999.
Hamacher applied for admission to the LSA for the fall of 1997. A final decision as to his application was also postponed because, though his "`academic credentials [were] in the qualified range, they [were] not at the level needed for first review admission.'" Ibid. Hamacher's application was subsequently denied in April 1997, and he enrolled at Michigan State University.[1]
252 *252 In October 1997, Gratz and Hamacher filed a lawsuit in the United States District Court for the Eastern District of Michigan against the University, the LSA,[2] James Duderstadt, and Lee Bollinger.[3] Petitioners' complaint was a class-action suit alleging "violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment . . ., and for racial discrimination in violation of 42 U. S. C. §§ 1981, 1983 and 2000d et seq." App. 33. Petitioners sought, inter alia, compensatory and punitive damages for past violations, declaratory relief finding that respondents violated petitioners' "rights to nondiscriminatory treatment," an injunction prohibiting respondents from "continuing to discriminate on the basis of race in violation of the Fourteenth Amendment," and an order requiring the LSA to offer Hamacher admission as a transfer student.[4] Id., at 40.
The District Court granted petitioners' motion for class certification after determining that a class action was appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2). The certified class consisted of "those 253 individuals who applied for and were not granted admission to the College of *253 Literature, Science & the Arts of the University of Michigan for all academic years from 1995 forward and who are members of those racial or ethnic groups, including Caucasian, that defendants treat[ed] less favorably on the basis of race in considering their application for admission." App. 70-71. And Hamacher, whose claim the District Court found to challenge a "`practice of racial discrimination pervasively applied on a classwide basis,'" was designated as the class representative. Id., at 67, 70. The court also granted petitioners' motion to bifurcate the proceedings into a liability and damages phase. Id., at 71. The liability phase was to determine "whether [respondents'] use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution." Id., at 70.[5]
B

The University has changed its admissions guidelines a number of times during the period relevant to this litigation, and we summarize the most significant of these changes briefly. The University's Office of Undergraduate Admissions (OUA) oversees the LSA admissions process.[6] In order to promote consistency in the review of the large number of applications received, the OUA uses written guidelines for each academic year. Admissions counselors make admissions decisions in accordance with these guidelines.
OUA considers a number of factors in making admissions decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and 254 leadership. OUA also considers race. During all periods relevant to this litigation, the University *254 has considered African-Americans, Hispanics, and Native Americans to be "underrepresented minorities," and it is undisputed that the University admits "virtually every qualified . . . applicant" from these groups. App. to Pet. for Cert. 111a.
During 1995 and 1996, OUA counselors evaluated applications according to grade point average combined with what were referred to as the "SCUGA" factors. These factors included the quality of an applicant's high school (S), the strength of an applicant's high school curriculum (C), an applicant's unusual circumstances (U), an applicant's geographical residence (G), and an applicant's alumni relationships (A). After these scores were combined to produce an applicant's "GPA 2" score, the reviewing admissions counselors referenced a set of "Guidelines" tables, which listed GPA 2 ranges on the vertical axis, and American College Test/Scholastic Aptitude Test (ACT/SAT) scores on the horizontal axis. Each table was divided into cells that included one or more courses of action to be taken, including admit, reject, delay for additional information, or postpone for reconsideration.
In both years, applicants with the same GPA 2 score and ACT/SAT score were subject to different admissions outcomes based upon their racial or ethnic status.[7] For example, as a Caucasian in-state applicant, Gratz's GPA 2 score and ACT score placed her within a cell calling for a postponed decision on her application. An in-state or out-of-state minority applicant with Gratz's scores would have fallen within a cell calling for admission.
255 *255 In 1997, the University modified its admissions procedure. Specifically, the formula for calculating an applicant's GPA 2 score was restructured to include additional point values under the "U" category in the SCUGA factors. Under this new system, applicants could receive points for underrepresented minority status, socioeconomic disadvantage, or attendance at a high school with a predominantly underrepresented minority population, or underrepresentation in the unit to which the student was applying (for example, men who sought to pursue a career in nursing). Under the 1997 procedures, Hamacher's GPA 2 score and ACT score placed him in a cell on the in-state applicant table calling for postponement of a final admissions decision. An underrepresented minority applicant placed in the same cell would generally have been admitted.
Beginning with the 1998 academic year, the OUA dispensed with the Guidelines tables and the SCUGA point system in favor of a "selection index," on which an applicant could score a maximum of 150 points. This index was divided linearly into ranges generally calling for admissions dispositions as follows: 100-150 (admit); 9599 (admit or postpone); 90-94 (postpone or admit); 75-89 (delay or postpone); 74 and below (delay or reject).
Each application received points based on high school grade point average, standardized test scores, academic quality of an applicant's high school, strength or weakness of high school curriculum, in-state

residency, alumni relationship, personal essay, and personal achievement or leadership. Of particular significance here, under a "miscellaneous" category, an applicant was entitled to 20 points based upon his or her membership in an underrepresented racial or ethnic minority group. The University explained that the "`development of the selection index for admissions in 1998 changed only the mechanics, not the substance, of how race and ethnicity [were] considered in admissions.'" App. to Pet. for Cert. 116a.
256 *256 In all application years from 1995 to 1998, the guidelines provided that qualified applicants from underrepresented minority groups be admitted as soon as possible in light of the University's belief that such applicants were more likely to enroll if promptly notified of their admission. Also from 1995 through 1998, the University carefully managed its rolling admissions system to permit consideration of certain applications submitted later in the academic year through the use of "protected seats." Specific groups—including athletes, foreign students, ROTC candidates, and underrepresented minorities—were "protected categories" eligible for these seats. A committee called the Enrollment Working Group (EWG) projected how many applicants from each of these protected categories the University was likely to receive after a given date and then paced admissions decisions to permit full consideration of expected applications from these groups. If this space was not filled by qualified candidates from the designated groups toward the end of the admissions season, it was then used to admit qualified candidates remaining in the applicant pool, including those on the waiting list.
During 1999 and 2000, the OUA used the selection index, under which every applicant from an underrepresented racial or ethnic minority group was awarded 20 points. Starting in 1999, however, the University established an Admissions Review Committee (ARC), to provide an additional level of consideration for some applications. Under the new system, counselors may, in their discretion, "flag" an application for the ARC to review after determining that the applicant (1) is academically prepared to succeed at the University,[8] (2) has achieved a minimum selection index score, and (3) possesses a quality or 257 characteristic important to the University's composition *257 of its freshman class, such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented race, ethnicity, or geography. After reviewing "flagged" applications, the ARC determines whether to admit, defer, or deny each applicant.
C
The parties filed cross-motions for summary judgment with respect to liability. Petitioners asserted that the LSA's use of race as a factor in admissions violates Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d, and the Equal Protection Clause of the Fourteenth Amendment. Respondents relied on Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), to respond to petitioners' arguments. As discussed in greater detail in the Court's opinion in Grutter v. Bollinger, post, at 323-325, Justice Powell, in Bakke, expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. See 438 U. S., at 317. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. Respondent-intervenors asserted that the LSA had a compelling interest in remedying the University's past and current discrimination against minorities.[9]

258 *258 The District Court began its analysis by reviewing this Court's decision in Bakke. See 122 F. Supp. 2d 811, 817 (ED Mich. 2000). Although the court acknowledged that no decision from this Court since Bakke has explicitly accepted the diversity rationale discussed by Justice Powell, see 122 F. Supp. 2d, at 820-821, it also concluded that this Court had not, in the years since Bakke, ruled out such a justification for the use of race, 122 F. Supp. 2d, at 820-821. The District Court concluded that respondents and their amici curiae had presented "solid evidence" that a racially and ethnically diverse student body produces significant educational benefits such that achieving such a student body constitutes a compelling governmental interest. See id., at 822-824.
The court next considered whether the LSA's admissions guidelines were narrowly tailored to achieve that interest. See id., at 824. Again relying on Justice Powell's opinion in Bakke, the District Court determined that the admissions program the LSA began using in 1999 is a narrowly tailored means of achieving the University's interest in the educational benefits that flow from a racially and ethnically diverse student body. See 122 F. Supp. 2d, at 827. The court emphasized that the LSA's current program does not utilize rigid quotas or seek to admit a predetermined number of minority students. See ibid. The award of 20 points for membership in an underrepresented minority group, in the District Court's view, was not the functional equivalent of a quota because minority candidates were not insulated from review by virtue of those points. See id., at 828. Likewise, the court rejected the assertion that the LSA's program operates like the two-track system Justice Powell found objectionable in Bakke on the grounds that LSA applicants are not competing for different groups of seats. See 122 F. Supp. 2d, at 828-829. The court also dismissed petitioners' assertion that the LSA's current system is nothing more than a means by which to achieve racial balancing. See id., at 259 831. The court explained that the LSA does not seek to *259 achieve a certain proportion of minority students, let alone a proportion that represents the community. See ibid.
The District Court found the admissions guidelines the LSA used from 1995 through 1998 to be more problematic. In the court's view, the University's prior practice of "protecting" or "reserving" seats for underrepresented minority applicants effectively kept nonprotected applicants from competing for those slots. See id., at 832. This system, the court concluded, operated as the functional equivalent of a quota and ran afoul of Justice Powell's opinion in Bakke.[10] See 122 F. Supp. 2d, at 832.
Based on these findings, the court granted petitioners' motion for summary judgment with respect to the LSA's admissions programs in existence from 1995 through 1998, and respondents' motion with respect to the LSA's admissions programs for 1999 and 2000. See id., at 833. Accordingly, the District Court denied petitioners' request for injunctive relief. See id., at 814.
The District Court issued an order consistent with its rulings and certified two questions for interlocutory appeal to the Sixth Circuit pursuant to 28 U. S. C. § 1292(b). Both parties appealed aspects of the District Court's rulings, and the Court of Appeals heard the case en banc on the same day as Grutter v. Bollinger. The Sixth Circuit later issued an opinion in Grutter, upholding the admissions program used by the University of Michigan Law School, and the petitioner in that case sought a writ of certiorari from this Court. Petitioners 260 asked this Court to grant certiorari in this case as *260 well, despite the fact that the Court of Appeals had not yet rendered a judgment, so that this Court could address the constitutionality of the consideration of race in university admissions in a wider range of circumstances. We did so. See 537 U. S. 1044 (2002).

II
As they have throughout the course of this litigation, petitioners contend that the University's consideration of race in its undergraduate admissions decisions violates § 1 of the Equal Protection Clause of the Fourteenth Amendment,[11] Title VI,[12] and 42 U. S. C. § 1981.[13] We consider first whether petitioners have standing to seek declaratory and injunctive relief, and, finding that they do, we next consider the merits of their claims.
A
Although no party has raised the issue, Justice Stevens argues that petitioners lack Article III standing to seek injunctive relief with respect to the University's use of race in undergraduate admissions. He first contends that because Hamacher did not "actually appl[y] for admission as a transfer student[,] [h]is claim of future injury is at best `conjectural or hypothetical' rather than `real and immediate.'" Post, at 285 (dissenting 261 opinion). But whether Hamacher "actually applied" for admission as a transfer student is not *261 determinative of his ability to seek injunctive relief in this case. If Hamacher had submitted a transfer application and been rejected, he would still need to allege an intent to apply again in order to seek prospective relief. If Justice Stevens means that because Hamacher did not apply to transfer, he must never really have intended to do so, that conclusion directly conflicts with the finding of fact entered by the District Court that Hamacher "intends to transfer to the University of Michigan when defendants cease the use of race as an admissions preference." App. 67.[14]
It is well established that intent may be relevant to standing in an equal protection challenge. In Clements v. Fashing, 457 U. S. 957 (1982), for example, we considered a challenge to a provision of the Texas Constitution requiring the immediate resignation of certain state officeholders upon their announcement of candidacy for another office. We concluded that the plaintiff officeholders had Article III standing because they had alleged that they would have announced their candidacy for other offices were it not for the "automatic resignation" provision they were challenging. Id., at 962; accord, Turner v. Fouche, 396 U. S. 346, 361-362, n. 23 (1970) (plaintiff who did not own property had standing to challenge property ownership requirement for membership on school board even though there was no evidence that plaintiff had applied and been rejected); Quinn v. Millsap, 491 U. S. 95, 103, n. 8 (1989) (plaintiffs who did not own property had standing to challenge property ownership requirement for membership on government board even though they lacked standing to challenge the requirement "as applied"). Likewise, in Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 (1993), we considered whether an 262 association challenging an ordinance that gave preferential treatment to certain *262 minority-owned businesses in the award of city contracts needed to show that one of its members would have received a contract absent the ordinance in order to establish standing. In finding that no such showing was necessary, we explained that "[t]he `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. . . . And 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 contract." Id., at 666. We concluded that in the face of such a barrier, "[t]o establish standing . . ., a party challenging a set-aside program like Jacksonville's need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from

doing so on an equal basis." Ibid.
In bringing his equal protection challenge against the University's use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. When Hamacher applied to the University as a freshman applicant, he was denied admission even though an underrepresented minority applicant with his qualifications would have been admitted. See App. to Pet. for Cert. 115a. After being denied admission, Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University's continued use of race in undergraduate admissions.
JUSTICE STEVENS raises a second argument as to standing. He contends that the University's use of race in undergraduate transfer admissions differs from its use of race in undergraduate freshman admissions, and that therefore Hamacher lacks standing to represent absent class members challenging the latter. Post, at 263 286-287 (dissenting opinion). *263 As an initial matter, there is a question whether the relevance of this variation, if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a). The parties have not briefed the question of standing versus adequacy, however, and we need not resolve the question today: Regardless of whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case.[15]
From the time petitioners filed their original complaint through their brief on the merits in this Court, they have consistently challenged the University's use of race in undergraduate admissions and its asserted justification of promoting "diversity." See, e. g., App. 38; Brief for Petitioners 13. Consistent with this challenge, petitioners requested injunctive relief prohibiting respondents "from continuing to discriminate on the basis of race." App. 40. They sought to certify a class consisting of all individuals who were not members of an underrepresented minority group who either had applied for admission to the LSA and been rejected or who intended to apply for admission to the LSA, for all academic years from 1995 forward. Id., at 35-36. The District Court determined that the proposed class satisfied the requirements of the Federal Rules of Civil Procedure, including the requirements of numerosity, commonality, and typicality. See Fed. Rule Civ. Proc. 23(a); App. 264 70. The court further concluded that Hamacher was an adequate representative *264 for the class in the pursuit of compensatory and injunctive relief for purposes of Rule 23(a)(4), see id., at 61-69, and found "the record utterly devoid of the presence of . . . antagonism between the interests of . . . Hamacher, and the members of the class which [he] seek[s] to represent," id., at 61. Finally, the District Court concluded that petitioners' claim was appropriate for class treatment because the University's "`practice of racial discrimination pervasively applied on a classwide basis.'" Id., at 67. The court certified the class pursuant to Federal Rule of Civil Procedure 23(b)(2), and designated Hamacher as the class representative. App. 70.
JUSTICE STEVENS cites Blum v. Yaretsky, 457 U. S. 991 (1982), in arguing that the District Court erred. Post, at 289. In Blum, we considered a class-action suit brought by Medicaid beneficiaries. The named representatives in Blum challenged decisions by the State's Medicaid Utilization Review Committee (URC) to transfer them to lower levels of care without, in their view, sufficient procedural safeguards. After a class was certified, the plaintiffs obtained an order expanding class certification to include challenges to URC decisions to transfer patients to higher levels of care as well. The defendants argued that the named representatives could not represent absent class members challenging transfers to higher levels of care because they had

not been threatened with such transfers. We agreed. We noted that "[n]othing in the record . . . suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers." 457 U. S., at 1001. And we found that transfers to lower levels of care involved a number of fundamentally different concerns than did transfers to higher ones. Id., at 1001-1002 (noting, for example, that transfers to lower levels of care implicated beneficiaries' property interests given the concomitant decrease in Medicaid benefits, while transfers to higher levels of care did not).
265 *265 In the present case, the University's use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions. Respondents challenged Hamacher's standing at the certification stage, but never did so on the grounds that the University's use of race in undergraduate transfer admissions involves a different set of concerns than does its use of race in freshman admissions. Respondents' failure to allege any such difference is simply consistent with the fact that no such difference exists. Each year the OUA produces a document entitled "COLLEGE OF LITERATURE, SCIENCE AND THE ARTS GUIDELINES FOR ALL TERMS," which sets forth guidelines for all individuals seeking admission to the LSA, including freshman applicants, transfer applicants, international student applicants, and the like. See, e. g., 2 App. in No. 01-1333 etc. (CA6), pp. 507-542. The guidelines used to evaluate transfer applicants specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to the University's stated goal of diversity are identical to that used to evaluate freshman applicants. For example, in 1997, when the class was certified and the District Court found that Hamacher had standing to represent the class, the transfer guidelines contained a separate section entitled "CONTRIBUTION TO A DIVERSE STUDENT BODY." 2 id., at 531. This section explained that any transfer applicant who could "contribut[e] to a diverse student body" should "generally be admitted" even with substantially lower qualifications than those required of other transfer applicants. Ibid. (emphasis added). To determine whether a transfer applicant was capable of "contribut[ing] to a diverse student body," admissions counselors were instructed to determine whether that transfer applicant met the "criteria as defined in Section
266 IV of the `U' category of [the] SCUGA" factors used to assess *266 freshman applicants. Ibid. Section IV of the "U" category, entitled "Contribution to a Diverse Class," explained that "[t]he University is committed to a rich educational experience for its students. A diverse, as opposed to a homogenous, student population enhances the educational experience for all students. To insure a diverse class, significant weight will be given in the admissions process to indicators of students contribution to a diverse class." 1 id., at 432. These indicators, used in evaluating freshman and transfer applicants alike, list being a member of an underrepresented minority group as establishing an applicant's contribution to diversity. See 3 id., at 11331134, 1153-1154. Indeed, the only difference between the University's use of race in considering freshman and transfer applicants is that all underrepresented minority freshman applicants receive 20 points and "virtually" all who are minimally qualified are admitted, while "generally" all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners' standing to challenge the University's use of race in undergraduate admissions and its assertion that diversity is a compelling state interest that justifies its consideration of the race of its undergraduate applicants.[16]
267 *267 Particularly instructive here is our statement in General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), that "[i]f [defendant-employer] used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might

have been prejudiced by the test clearly would satisfy the . . . requirements of Rule 23(a)." Id., at 159, n. 15 (emphasis added). Here, the District Court found that the sole rationale the University had provided for any of its race-based preferences in undergraduate admissions was the interest in "the educational benefits that result from having a diverse student body." App. to Pet. for Cert. 8a. And petitioners argue that an interest in "diversity" is not a compelling state interest that is ever capable of justifying the use of race in undergraduate admissions. See, e. g., Brief for Petitioners 11-13. In sum, the same set of concerns is implicated by the University's use of race in evaluating all undergraduate admissions applications under the guidelines.[17] We 268 therefore agree with the District Court's *268 carefully considered decision to certify this class-action challenge to the University's consideration of race in undergraduate admissions. See App. 67 ("`It is a singular policy... applied on a classwide basis'"); cf. Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978) ("[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action" (internal quotation marks omitted)). Indeed, class-action treatment was particularly important in this case because "the claims of the individual students run the risk of becoming moot" and the "[t]he class action vehicle . . . provides a mechanism for ensuring that a justiciable claim is before the Court." App. 69. Thus, we think it clear that Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain this class-action challenge to the University's use of race in undergraduate admissions.
B
Petitioners argue, first and foremost, that the University's use of race in undergraduate admissions violates the Fourteenth Amendment. Specifically, they contend that this Court has only sanctioned the use of racial classifications to remedy identified discrimination, a justification on which respondents have never relied. Brief for Petitioners 15-16. Petitioners further argue that "diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute a compelling interest capable of supporting narrowly-tailored means." Id., at 17-18, 40-41. But for the reasons set forth today in Grutter v. Bollinger, post, at 327-333, the Court has rejected these arguments of petitioners.
269 *269 Petitioners alternatively argue that even if the University's interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University's use of race in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not "remotely resemble the kind of consideration of race and ethnicity that Justice Powell endorsed in Bakke." Brief for Petitioners 18. Respondents reply that the University's current admissions program is narrowly tailored and avoids the problems of the Medical School of the University of California at Davis program (U. C. Davis) rejected by Justice Powell.[18] They claim that their program "hews closely" to both the admissions program described by Justice Powell as well as the Harvard College admissions program that he endorsed. Brief for Respondent Bollinger et al. 32. Specifically, respondents contend that the LSA's policy provides the individualized consideration that "Justice Powell considered a hallmark of a constitutionally appropriate admissions program." Id., at 35. For the reasons set out below, we do not agree.
270 *270 It is by now well established that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995). This "`standard

of review. .. is not dependent on the race of those burdened or benefited by a particular classification.' " Ibid. (quoting Richmond v. J. A. Croson Co., 488 U. S. 469, 494 (1989) (plurality opinion)). Thus, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny." Adarand, 515 U. S., at 224.
To withstand our strict scrutiny analysis, respondents must demonstrate that the University's use of race in its current admissions program employs "narrowly tailored measures that further compelling governmental interests." Id., at 227. Because "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification," Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements have been met must entail "`a most searching examination.' " Adarand, supra, at 223 (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality opinion of Powell, J.)). We find that the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.
In Bakke, Justice Powell reiterated that "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake." 438 U. S., at 307. He then explained, however, that in his view it would be permissible for a university to employ an admissions program in which "race or ethnic 271 background may be *271 deemed a `plus' in a particular applicant's file." Id., at 317. He explained that such a program might allow for "[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism." Ibid. Such a system, in Justice Powell's view, would be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant." Ibid.
Justice Powell's opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See id., at 315. See also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 618 (1990) (O'Connor, J., dissenting) (concluding that the Federal Communications Commission's policy, which "embodie[d] the related notions . . . that a particular applicant, by virtue of race or ethnicity alone, is more valued than other applicants because [the applicant is] `likely to provide [a] distinct perspective,'" "impermissibly value[d] individuals" based on a presumption that "persons think in a manner associated with their race"). Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant's entire application.
The current LSA policy does not provide such individualized consideration. The LSA's policy automatically distributes 20 points to every single applicant from an "underrepresented minority" group, as defined by the 272 University. The only consideration that accompanies this distribution of *272 points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a "particular black applicant" could be considered without being decisive, see Bakke, 438 U. S., at 317, the LSA's automatic distribution of 20 points has the effect of making

"the factor of race.. . decisive" for virtually every minimally qualified underrepresented minority applicant. Ibid.
[19]

Also instructive in our consideration of the LSA's system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in Bakke. The example was included to "illustrate the kind of significance attached to race" under the Harvard College program. Id., at 324. It provided as follows:

"The Admissions Committee, with only a few places left to fill, might find itself forced to choose

between A, the child of a successful black physician in an academic community with promise of

superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-

literate parents whose academic achievement was lower but who had demonstrated energy and

leadership as well as an apparently-abiding interest in black power. If a good number of black

students much like A but few like B had already been admitted, the Committee might prefer B;

and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of

the remaining places, his unique quality might give him an edge over both A and B. Thus, the

273

critical criteria are often individual qualities or experience not dependent *273 upon race but

sometimes associated with it." Ibid. (emphasis added).

This example further demonstrates the problematic nature of the LSA's admissions system. Even if student C's "extraordinary artistic talent" rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA's system. See App. 234-235. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants the individualized selection process described in Harvard's example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his "extraordinary talent."[20]

Respondents emphasize the fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration by the ARC. We think that the flagging program only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. Again, students A, B, and C illustrate the point. First, student A would never be flagged. This is because, as the University has conceded, the effect of automatically awarding 20 points is that virtually every qualified underrepresented minority applicant is admitted. Student A, an applicant "with promise of superior academic performance," would certainly fit this description. Thus, the result of the automatic distribution of 20 points is that the 274 University *274 would never consider student A's individual background, experiences, and characteristics to assess his individual "potential contribution to diversity," Bakke, supra, at 317. Instead, every applicant like student A would simply be admitted.

It is possible that students B and C would be flagged and considered as individuals. This assumes that student B was not already admitted because of the automatic 20-point distribution, and that student C could muster at least 70 additional points. But the fact that the "review committee can look at the applications individually and ignore the points," once an application is flagged, Tr. of Oral Arg. 42, is of little comfort under our strict scrutiny analysis. The record does not reveal precisely how many applications are flagged for this

individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA's admissions program. See App. to Pet. for Cert. 117a ("The ARC reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the EWG").[21] Additionally, this individualized review is only provided after admissions counselors automatically distribute the University's version of a "plus" that makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant.
275 *275 Respondents contend that "[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use the . . . admissions system" upheld by the Court today in Grutter. Brief for Respondent Bollinger et al. 6, n. 8. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. See J. A. Croson Co., 488 U. S., at 508 (citing Frontiero v. Richardson, 411 U. S. 677, 690 (1973) (plurality opinion of Brennan, J.) (rejecting "`administrative convenience' " as a determinant of constitutionality in the face of a suspect classification)). Nothing in Justice Powell's opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.
We conclude, therefore, that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.[22] We further find that the admissions 276 policy also violates Title VI and *276 42 U. S. C. § 1981.[23] Accordingly, we reverse that portion of the District Court's decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring.[*]
I
Unlike the law school admissions policy the Court upholds today in Grutter v. Bollinger, post, p. 306, the procedures employed by the University of Michigan's (University) Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants. Cf. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978) (principal opinion of Powell, J.). The law school considers the various diversity qualifications of each applicant, including race, on a case-by-case basis. See Grutter v. Bollinger, post, at 337-339. By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the 277 particular background, experiences, or *277 qualities of each individual applicant. Cf. ante, at 271-272, 273. And this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the Court's opinion in Grutter, post, at 334, requires: consideration of each applicant's individualized qualifications, including the contribution each individual's race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic

groups. Cf. ante, at 272-273 (citing Bakke, supra, at 324).
On cross-motions for summary judgment, the District Court held that the admissions policy the University instituted in 1999 and continues to use today passed constitutional muster. See 122 F. Supp. 2d 811, 827 (ED Mich. 2000). In their proposed summary of undisputed facts, the parties jointly stipulated to the admission policy's mechanics. App. to Pet. for Cert. 116a-118a. When the University receives an application for admission to its incoming class, an admissions counselor turns to a Selection Index Worksheet to calculate the applicant's selection index score out of 150 maximum possible points—a procedure the University began using in 1998. App. 256. Applicants with a score of over 100 are automatically admitted; applicants with scores of 95 to 99 are categorized as "admit or postpone"; applicants with 90-94 points are postponed or admitted; applicants with 75-89 points are delayed or postponed; and applicants with 74 points or fewer are delayed or rejected. The Office of Undergraduate Admissions extends offers of admission on a rolling basis and acts upon the applications it has received through periodic "[m]ass [a]ction[s]." Ibid.
In calculating an applicant's selection index score, counselors assign numerical values to a broad range of academic factors, as well as to other variables the University considers important to assembling a diverse 278 student body, including race. Up to 110 points can be assigned for academic performance, *278 and up to 40 points can be assigned for the other, nonacademic factors. Michigan residents, for example, receive 10 points, and children of alumni receive 4. Counselors may assign an outstanding essay up to 3 points and may award up to 5 points for an applicant's personal achievement, leadership, or public service. Most importantly for this case, an applicant automatically receives a 20 point bonus if he or she possesses any one of the following "miscellaneous" factors: membership in an underrepresented minority group; attendance at a predominantly minority or disadvantaged high school; or recruitment for athletics.
In 1999, the University added another layer of review to its admissions process. After an admissions counselor has tabulated an applicant's selection index score, he or she may "flag" an application for further consideration by an Admissions Review Committee, which is composed of members of the Office of Undergraduate Admissions and the Office of the Provost. App. to Pet. for Cert. 117a. The review committee meets periodically to discuss the files of "flagged" applicants not already admitted based on the selection index parameters. App. 275. After discussing each flagged application, the committee decides whether to admit, defer, or deny the applicant. Ibid.
Counselors may flag an applicant for review by the committee if he or she is academically prepared, has a selection index score of at least 75 (for non-Michigan residents) or 80 (for Michigan residents), and possesses one of several qualities valued by the University. These qualities include "high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and underrepresented race, ethnicity, or geography." App. to Pet. for Cert. 117a. Counselors also have the discretion to flag an application if, notwithstanding a high selection index score, something in the applicant's file suggests that the applicant may not be suitable for admission. App. 274. Finally, in "rare circumstances," an 279 admissions counselor *279 may flag an applicant with a selection index score below the designated levels if the counselor has reason to believe from reading the entire file that the score does not reflect the applicant's true promise. Ibid.
II

Although the Office of Undergraduate Admissions does assign 20 points to some "soft" variables other than race, the points available for other diversity contributions, such as leadership and service, personal achievement, and geographic diversity, are capped at much lower levels. Even the most outstanding national high school leader could never receive more than five points for his or her accomplishments—a mere quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race. Of course, as Justice Powell made clear in Bakke, a university need not "necessarily accor[d]" all diversity factors "the same weight," 438 U. S., at 317, and the "weight attributed to a particular quality may vary from year to year depending upon the `mix' both of the student body and the applicants for the incoming class," id., at 317-318. But the selection index, by setting up automatic, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually assessed. This policy stands in sharp contrast to the law school's admissions plan, which enables admissions officers to make nuanced judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class. See Grutter v. Bollinger, post, at 337 ("[T]he Law School's race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions").
The only potential source of individualized consideration appears to be the Admissions Review Committee. 280 The evidence in the record, however, reveals very little about how *280 the review committee actually
functions. And what evidence there is indicates that the committee is a kind of afterthought, rather than an integral component of a system of individualized review. As the Court points out, it is undisputed that the "`[committee] reviews only a portion of all of the applications. The bulk of admissions decisions are executed based on selection index score parameters set by the [Enrollment Working Group].' " Ante, at 274 (quoting App. to Pet. for Cert. 117a). Review by the committee thus represents a necessarily limited exception to the Office of Undergraduate Admissions' general reliance on the selection index. Indeed, the record does not reveal how many applications admissions counselors send to the review committee each year, and the University has not pointed to evidence demonstrating that a meaningful percentage of applicants receives this level of discretionary review. In addition, eligibility for consideration by the committee is itself based on automatic cutoff levels determined with reference to selection index scores. And there is no evidence of how the decisions are actually made—what type of individualized consideration is or is not used. Given these circumstances, the addition of the Admissions Review Committee to the admissions process cannot offset the apparent absence of individualized consideration from the Office of Undergraduate Admissions' general practices.
For these reasons, the record before us does not support the conclusion that the University's admissions program for its College of Literature, Science, and the Arts—to the extent that it considers race—provides the necessary individualized consideration. The University, of course, remains free to modify its system so that it does so. Cf. Grutter v. Bollinger, post, p. 306. But the current system, as I understand it, is a nonindividualized, mechanical one. As a result, I join the Court's opinion reversing the decision of the District Court.
281 *281 JUSTICE THOMAS, concurring.
I join the Court's opinion because I believe it correctly applies our precedents, including today's decision in Grutter v. Bollinger, post, p. 306. For similar reasons to those given in my separate opinion in that case, see post, p. 349 (opinion concurring in part and dissenting in part), however, I would hold that a State's use of

racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.
I make only one further observation. The University of Michigan's College of Literature, Science, and the Arts (LSA) admissions policy that the Court today invalidates does not suffer from the additional constitutional defect of allowing racial "discriminat[ion] among [the] groups" included within its definition of underrepresented minorities, Grutter, post, at 336 (opinion of the Court); post, at 374 (THOMAS, J., concurring in part and dissenting in part), because it awards all underrepresented minorities the same racial preference. The LSA policy falls, however, because it does not sufficiently allow for the consideration of nonracial distinctions among underrepresented minority applicants. Under today's decisions, a university may not racially discriminate between the groups constituting the critical mass. See post, at 374-375; Grutter, post, at 329-330 (opinion of the Court) (stating that such "racial balancing ... is patently unconstitutional"). An admissions policy, however, must allow for consideration of these nonracial distinctions among applicants on both sides of the single permitted racial classification. See ante, at 272-273 (opinion of the Court); ante, at 276-277 (O'CONNOR, J., concurring).
JUSTICE BREYER, concurring in the judgment.
I concur in the judgment of the Court though I do not join its opinion. I join JUSTICE O'CONNOR'S opinion except insofar as it joins that of the Court. I join Part I of JUSTICE GINSBURG'S dissenting opinion, but I do 282 not dissent from the *282 Court's reversal of the District Court's decision. I agree with JUSTICE GINSBURG that, in implementing the Constitution's equality instruction, government decisionmakers may properly distinguish between policies of inclusion and exclusion, post, at 301, for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally, see U. S. Const., Amdt. 14.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins, dissenting.
Petitioners seek forward-looking relief enjoining the University of Michigan from continuing to use its current raceconscious freshman admissions policy. Yet unlike the plaintiff in Grutter v. Bollinger, post, p. 306,[1] the petitioners in this case had already enrolled at other schools before they filed their class-action complaint in this case. Neither petitioner was in the process of reapplying to Michigan through the freshman admissions process at the time this suit was filed, and neither has done so since. There is a total absence of evidence that either petitioner would receive any benefit from the prospective relief sought by their lawyer. While some unidentified members of the class may very well have standing to seek prospective relief, it is clear that neither petitioner does. Our precedents therefore require dismissal of the action.
I
Petitioner Jennifer Gratz applied in 1994 for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) as an undergraduate for the 1995-1996 freshman class. After the University delayed action on her application and then placed her name on an extended waiting list, Gratz 283 decided to attend the University of Michigan at Dearborn instead; she graduated in 1999. *283 Petitioner Patrick Hamacher applied for admission to LSA as an undergraduate for the 1997-1998 freshman class. After

the University postponed decision on his application and then placed his name on an extended waiting list, he attended Michigan State University, graduating in 2001. In the complaint that petitioners filed on October 14, 1997, Hamacher alleged that "[h]e intends to apply to transfer [to the University of Michigan] if the discriminatory admissions system described herein is eliminated." App. 34.
At the class certification stage, petitioners sought to have Hamacher represent a class pursuant to Federal Rule of Civil Procedure 23(b)(2).[2] See App. 71, n. 3. In response, Michigan contended that "Hamacher lacks standing to represent a class seeking declaratory and injunctive relief." Id., at 63. Michigan submitted that Hamacher suffered "`no threat of imminent future injury' " given that he had already enrolled at another undergraduate institution.[3] Id., at 64. The District Court rejected Michigan's contention, concluding that Hamacher had standing to seek injunctive relief because the complaint alleged that he intended to apply to Michigan as a transfer student. See id., at 67 ("To the extent that plaintiff Hamacher reapplies to the University of Michigan, he will again face the same `harm' in that race will continue to be a factor in admissions"). The District Court, accordingly, certified Hamacher as the sole class representative and limited the claims of the class to injunctive and declaratory relief. See id., at 70-71.
In subsequent proceedings, the District Court held that the 1995-1998 admissions system, which was in 284 effect when both petitioners' applications were denied, was unlawful but *284 that Michigan's new 1999-2000
admissions system was lawful. When petitioners sought certiorari from this Court, Michigan did not crosspetition for review of the District Court's judgment concerning the admissions policies that Michigan had in place when Gratz and Hamacher applied for admission in 1994 and 1996 respectively. See Brief for Respondent Bollinger et al. 5, n. 7. Accordingly, we have before us only that portion of the District Court's judgment that upheld Michigan's new freshman admissions policy.
II
Both Hamacher and Gratz, of course, have standing to seek damages as compensation for the alleged wrongful denial of their respective applications under Michigan's old freshman admissions system. However, like the plaintiff in Los Angeles v. Lyons, 461 U. S. 95 (1983), who had standing to recover damages caused by "chokeholds" administered by the police in the past but had no standing to seek injunctive relief preventing future chokeholds, petitioners' past injuries do not give them standing to obtain injunctive relief to protect third parties from similar harms. See id., at 102 ("`[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects'" (quoting O'Shea v. Littleton, 414 U. S. 488, 495-496 (1974))). To seek forward-looking, injunctive relief, petitioners must show that they face an imminent threat of future injury. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 210-211 (1995). This they cannot do given that when this suit was filed, neither faced an impending threat of future injury based on Michigan's new freshman admissions policy.
[4]
285 *285 Even though there is not a scintilla of evidence that the freshman admissions program now being administered by respondents will ever have any impact on either Hamacher or Gratz, petitioners nonetheless argue that Hamacher has a personal stake in this suit because at the time the complaint was filed, Hamacher intended to apply to transfer to Michigan once certain admission policy changes occurred.[5] See App. 34;

see also Tr. of Oral Arg. 4-5. Petitioners' attempt to base Hamacher's standing in this suit on a hypothetical transfer application fails for several reasons. First, there is no evidence that Hamacher ever actually applied for admission as a transfer student at Michigan. His claim of future injury is at best "conjectural or 286 hypothetical" rather than "real and immediate." O'Shea v. Littleton, 414 U. S., at 494 *286 (internal quotation marks omitted); see also Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
Second, as petitioners' counsel conceded at oral argument, the transfer policy is not before this Court and was not addressed by the District Court. See Tr. of Oral Arg. 4-5 (admitting that "[t]he transfer admissions policy itself is not before you—the Court"). Unlike the University's freshman policy, which is detailed at great length in the Joint Appendix filed with this Court, the specifics of the transfer policy are conspicuously missing from the Joint Appendix filed with this Court. Furthermore, the transfer policy is not discussed anywhere in the parties' briefs. Nor is it ever even referenced in the District Court's Dec. 13, 2000, opinion that upheld Michigan's new freshman admissions policy and struck down Michigan's old policy. Nonetheless, evidence filed with the District Court by Michigan demonstrates that the criteria used to evaluate transfer applications at Michigan differ significantly from the criteria used to evaluate freshman undergraduate applications. Of special significance, Michigan's 2000 freshman admissions policy, for example, provides for 20 points to be added to the selection index scores of minority applicants. See ante, at 271. In contrast, Michigan does not use points in its transfer policy; some applicants, including minority and socioeconomically disadvantaged applicants, "will generally be admitted" if they possess certain qualifications, including a 2.5 undergraduate grade point average (GPA), sophomore standing, and a 3.0 high school GPA. 10 Record 16 (Exh. C). Because of these differences, Hamacher cannot base his right to complain about the freshman admissions policy on his hypothetical injury under a wholly separate transfer policy. For "[i]f the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for 287 review." Lewis v. Casey, 518 U. S. 343, *287 358-359, n. 6 (1996) (emphasis in original); see also Blum v. Yaretsky, 457 U. S. 991, 999 (1982) ("[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar").[6]
Third, the differences between the freshman and the transfer admissions policies make it extremely unlikely, at best, that an injunction requiring respondents to modify the freshman admissions program would have any impact on Michigan's transfer policy. See Allen v. Wright, 468 U. S. 737, 751 (1984) ("[R]elief from the injury must be `likely' to follow from a favorable decision"); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 222 (1974) ("[T]he discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to which the court's ruling would be applied"). This is especially true in light of petitioners' unequivocal disavowal of any request for equitable relief that would totally preclude the use of race in the processing of all admissions applications. See Tr. of Oral Arg. 14-15.
The majority asserts that petitioners "have challenged any use of race by the University in undergraduate admissions" —freshman and transfer alike. Ante, at 266, n. 16 (emphasis in original). Yet when questioned at oral argument about whether petitioners' challenge would impact both private and public universities, petitioners' counsel stated: "Your Honor, I want to be clear about what it is that we're arguing for here today. 288 We are not suggesting an absolute *288 rule forbidding any use of race under any circumstances. What we

are arguing is that the interest asserted here by the University, this amorphous, ill-defined, unlimited interest in diversity is not a compelling interest." Tr. of Oral Arg. 14 (emphasis added). In addition, when asked whether petitioners took the position that the only permissible use of race is as a remedy for past discrimination, petitioners' lawyer stated: "I would not go that far. . . . [T]here may be other reasons. I think they would have to be extraordinary and rare...." Id., at 15. Consistent with these statements, petitioners' briefs filed with this Court attack the University's asserted interest in "diversity" but acknowledge that race could be considered for remedial reasons. See, e. g., Brief for Petitioners 16-17.
Because Michigan's transfer policy was not challenged by petitioners and is not before this Court, see supra, at 286, we do not know whether Michigan would defend its transfer policy on diversity grounds, or whether it might try to justify its transfer policy on other grounds, such as a remedial interest. Petitioners' counsel was therefore incorrect in asserting at oral argument that if the University's asserted interest in "diversity" were to be "struck down as a rationale, then the law would be [the] same with respect to the transfer policy as with respect to the original [freshman admissions] policy." Tr. of Oral Arg. 7-8. And the majority is likewise mistaken in assuming that "the University's use of race in undergraduate transfer admissions does not implicate a significantly different set of concerns than does its use of race in undergraduate freshman admissions." Ante, at 265. Because the transfer policy has never been the subject of this suit, we simply do not know (1) whether Michigan would defend its transfer policy on "diversity" grounds or some other grounds, or (2) how the absence of a point system in the transfer policy might impact a narrow tailoring analysis of that policy.
289 *289 At bottom, petitioners' interest in obtaining an injunction for the benefit of younger third parties is comparable to that of the unemancipated minor who had no standing to litigate on behalf of older women in H. L. v. Matheson, 450 U. S. 398, 406-407 (1981), or that of the Medicaid patients transferred to less intensive care who had no standing to litigate on behalf of patients objecting to transfers to more intensive care facilities in Blum v. Yaretsky, 457 U. S., at 1001. To have standing, it is elementary that the petitioners' own interests must be implicated. Because neither petitioner has a personal stake in this suit for prospective relief, neither has standing.
III
It is true that the petitioners' complaint was filed as a class action and that Hamacher has been certified as the representative of a class, some of whose members may well have standing to challenge the LSA freshman admissions program that is presently in effect. But the fact that "a suit may be a class action. . . adds nothing to the question of standing, for even named plaintiffs who represent a class `must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40, n. 20 (1976) (quoting Warth v. Seldin, 422 U. S. 490, 502 (1975)); see also 1 A. Conte & H. Newberg, Class Actions § 2:5 (4th ed. 2002) ("[O]ne cannot acquire individual standing by virtue of bringing a class action").[7] Thus, in Blum, we squarely held that the interests of members of the class could not satisfy the requirement that the class representatives have a personal interest in obtaining the 290 particular equitable relief being sought. The class in *290 Blum included patients who wanted a hearing before being transferred to facilities where they would receive more intensive care. The class representatives,

however, were in the category of patients threatened with a transfer to less intensive care facilities. In explaining why the named class representatives could not base their standing to sue on the injury suffered by other members of the class, we stated:
"Respondents suggest that members of the class they represent have been transferred to higher levels of care as a result of [utilization review committee] decisions. Respondents, however, `must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.' Warth v. Seldin, 422 U. S. 490, 502 (1975). Unless these individuals `can thus demonstrate the requisite case or controversy between themselves personally and [petitioners], "none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U. S. 488, 494 (1974).' Ibid." 457 U. S., at 1001, n. 13.
Much like the class representatives in Blum, Hamacher— the sole class representative in this case—cannot meet Article III's threshold personal-stake requirement. While unidentified members of the class he represents may well have standing to challenge Michigan's current freshman admissions policy, Hamacher cannot base his standing to sue on injuries suffered by other members of the class.
IV
As this case comes to us, our precedents leave us no alternative but to dismiss the writ for lack of jurisdiction. Neither petitioner has a personal stake in the outcome of the case, and neither has standing to 291 seek prospective relief on behalf of unidentified class members who may or may not *291 have standing to litigate on behalf of themselves. Accordingly, I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins as to Part II, dissenting.
I agree with JUSTICE STEVENS that Patrick Hamacher has no standing to seek declaratory or injunctive relief against a freshman admissions policy that will never cause him any harm. I write separately to note that even the Court's new gloss on the law of standing should not permit it to reach the issue it decides today. And because a majority of the Court has chosen to address the merits, I also add a word to say that even if the merits were reachable, I would dissent from the Court's judgment.
I
The Court's finding of Article III standing rests on two propositions: first, that both the University of Michigan's undergraduate college's transfer policy and its freshman admissions policy seek to achieve student body diversity through the "use of race," ante, at 261-263, 265-269, and second, that Hamacher has standing to challenge the transfer policy on the grounds that diversity can never be a "compelling state interest" justifying the use of race in any admissions decision, freshman or transfer, ante, at 269. The Court concludes that, because Hamacher's argument, if successful, would seal the fate of both policies, his standing to challenge the transfer policy also allows him to attack the freshman admissions policy. Ante, at 266, n. 16 ("[P]etitioners challenged any use of race by the University to promote diversity, including through the transfer policy"); ante, at 267, n. 16 ("`[T]he University considers race for a purpose to achieve a diversity that we believe is not

compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor' " (quoting Tr. of Oral Arg. 7292 8)). I agree with JUSTICE STEVENS'S critique *292 that the Court thus ignores the basic principle of Article III standing that a plaintiff cannot challenge a government program that does not apply to him. See ante, at 286287, and n. 6 (dissenting opinion).[1]
But even on the Court's indulgent standing theory, the decision should not go beyond a recognition that diversity can serve as a compelling state interest justifying race-conscious decisions in education. Ante, at 268 (citing Grutter v. Bollinger, post, at 327-333). Since, as the Court says, "petitioners did not raise a narrow tailoring challenge to the transfer policy," ante, at 266, n. 16, our decision in Grutter is fatal to Hamacher's sole attack upon the transfer policy, which is the only policy before this Court that he claims aggrieved him. Hamacher's challenge to that policy having failed, his standing is presumably spent. The further question whether the freshman admissions plan is narrowly tailored to achieving student body diversity remains legally irrelevant to Hamacher and should await a plaintiff who is actually hurt by it.[2]
II 293 *293
The cases now contain two pointers toward the line between the valid and the unconstitutional in raceconscious admissions schemes. Grutter reaffirms the permissibility of individualized consideration of race to achieve a diversity of students, at least where race is not assigned a preordained value in all cases. On the other hand, Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class. Although the freshman admissions system here is subject to argument on the merits, I think it is closer to what Grutter approves than to what Bakke condemns, and should not be held unconstitutional on the current record.
The record does not describe a system with a quota like the one struck down in Bakke, which "insulate[d]" all non-minority candidates from competition from certain seats. Bakke, supra, at 317 (opinion of Powell, J.); see also Richmond v. J. A. Croson Co., 488 U. S. 469, 496 (1989) (plurality opinion) (stating that Bakke invalidated "a plan that completely eliminated nonminorities from consideration for a specified percentage of opportunities"). The Bakke plan "focused solely on ethnic diversity" and effectively told nonminority applicants that "[n]o matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the [set-aside] special admissions seats." Bakke, supra, at 315, 319 (opinion of Powell, J.) (emphasis in original).
The plan here, in contrast, lets all applicants compete for all places and values an applicant's offering for any place not only on grounds of race, but on grades, test scores, strength of high school, quality of course of 294 study, residence, alumni relationships, leadership, personal character, socioeconomic *294 disadvantage, athletic ability, and quality of a personal essay. Ante, at 255. A nonminority applicant who scores highly in these other categories can readily garner a selection index exceeding that of a minority applicant who gets the 20-point bonus. Cf. Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 638 (1987) (upholding a program in which gender "was but one of numerous factors [taken] into account in arriving at [a] decision" because "[n]o persons are automatically excluded from consideration; all are able to have their

qualifications weighed against those of other applicants" (emphasis deleted)).
Subject to one qualification to be taken up below, this scheme of considering, through the selection index system, all of the characteristics that the college thinks relevant to student diversity for every one of the student places to be filled fits Justice Powell's description of a constitutionally acceptable program: one that considers "all pertinent elements of diversity in light of the particular qualifications of each applicant" and places each element "on the same footing for consideration, although not necessarily according them the same weight." Bakke, supra, at 317. In the Court's own words, "each characteristic of a particular applicant [is] considered in assessing the applicant's entire application." Ante, at 271. An unsuccessful nonminority applicant cannot complain that he was rejected "simply because he was not the right color"; an applicant who is rejected because "his combined qualifications . . . did not outweigh those of the other applicant" has been given an opportunity to compete with all other applicants. Bakke, supra, at 318 (opinion of Powell, J.).
The one qualification to this description of the admissions process is that membership in an underrepresented minority is given a weight of 20 points on the 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a 295 socioeconomically *295 disadvantaged or predominantly minority high school, or at the Provost's discretion; they may also receive 10 points for being residents of Michigan, 6 for residence in an underrepresented Michigan county, 5 for leadership and service, and so on.
The Court nonetheless finds fault with a scheme that "automatically" distributes 20 points to minority applicants because "[t]he only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups." Ante, at 271272. The objection goes to the use of points to quantify and compare characteristics, or to the number of points awarded due to race, but on either reading the objection is mistaken.
The very nature of a college's permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants' chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell's plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its "holistic review," Grutter, post, at 337; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose.
Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Bakke. Of course we can conceive of a point system in which the "plus" factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every nonminority applicant in the university's admissions system, see 438 U. S., at 319, n. 53 (opinion of Powell, 296 J.). But petitioners do not have a convincing argument *296 that the freshman admissions system operates this way. The present record obviously shows that nonminority applicants may achieve higher selection point totals than minority applicants owing to characteristics other than race, and the fact that the university admits "virtually every qualified under-represented minority applicant," App. to Pet. for Cert. 111a, may reflect nothing more than the likelihood that very few qualified minority applicants apply, Brief for Respondent Bollinger et al.

39, as well as the possibility that self-selection results in a strong minority applicant pool. It suffices for me, as it did for the District Court, that there are no Bakke-like set-asides and that consideration of an applicant's whole spectrum of ability is no more ruled out by giving 20 points for race than by giving the same points for athletic ability or socioeconomic disadvantage.
Any argument that the "tailoring" amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not. But suspicion does not carry petitioners' ultimate burden of persuasion in this constitutional challenge, Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 287-288 (1986) (plurality opinion of Powell, J.),and it surely does not warrant condemning the college's admissions scheme on this record. Because the District Court (correctly, in my view) did not believe that the specific point assignment was constitutionally troubling, it made only limited and general findings on other characteristics of the university's admissions practice, such as the conduct of individualized review by the Admissions Review Committee. 122 F. Supp. 2d 811, 829-830 (ED Mich. 2000). As the Court indicates, we know very little about the actual role of the review committee. Ante, at 274 ("The record does not reveal precisely how many applications are flagged for this individualized consideration [by the committee]"); see also ante, at 279-280 (O'CONNOR, J., concurring) ("The evidence in the record . . . reveals very little about how the review committee actually functions"). The point system cannot operate as a de facto set-aside if the 297 *297 greater admissions process, including review by the committee, results in individualized review sufficient to meet the Court's standards. Since the record is quiet, if not silent, on the case-by-case work of the committee, the Court would be on more defensible ground by vacating and remanding for evidence about the committee's specific determinations.[3]
Without knowing more about how the Admissions Review Committee actually functions, it seems especially unfair to treat the candor of the admissions plan as an Achilles' heel. In contrast to the college's forthrightness in saying just what plus factor it gives for membership in an underrepresented minority, it is worth considering the character of one alternative thrown up as preferable, because supposedly not based on race. Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. Brief for United States as Amicus Curiae 18; Brief for United States as Amicus Curiae in Grutter v. Bollinger, O. T. 2002, No. 02-241, pp. 13-17. While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious 298 disadvantage.[4] It *298 is the disadvantage of deliberate obfuscation. The "percentage plans" are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.
III
If this plan were challenged by a plaintiff with proper standing under Article III, I would affirm the judgment of the District Court granting summary judgment to the college. As it is, I would vacate the judgment for lack of jurisdiction, and I respectfully dissent.

JUSTICE GINSBURG, with whom JUSTICE SOUTER joins, dissenting.[*]
I
Educational institutions, the Court acknowledges, are not barred from any and all consideration of race when making admissions decisions. Ante, at 268; see Grutter v. Bollinger, post, at 326-333. But the Court once again maintains that the same standard of review controls judicial inspection of all official race classifications. Ante, at 270 (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995); Richmond v. J. A. Croson Co., 488 U. S. 469, 494 (1989) (plurality opinion)). This insistence on "consistency," Adarand, 515 U. S., at 224, would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law, see id., at 274-276, and n. 8 (GINSBURG, J., dissenting). But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.
299 *299 In the wake "of a system of racial caste only recently ended," id., at 273 (GINSBURG, J., dissenting), large disparities endure. Unemployment,[1] poverty,[2] and access to health care[3] vary disproportionately by race. Neighborhoods and schools remain racially divided.[4] African-American and Hispanic children are all
300 too often educated in poverty-stricken *300 and underperforming institutions.[5] Adult African-Americans and Hispanics generally earn less than whites with equivalent levels of education.[6] Equally credentialed job applicants receive different receptions depending on their race.[7] Irrational prejudice is still encountered in
301 real estate markets[8] and consumer transactions.[9] "Bias both *301 conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice." Id., at 274 (GINSBURG, J., dissenting); see generally Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291 (1998).
The Constitution instructs all who act for the government that they may not "deny to any person . . . the equal protection of the laws." Amdt. 14, § 1. In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 316 (1986) (STEVENS, J., dissenting). Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated. See Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433-434 (1988) ("[T]o say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppressio[n] is to trivialize the lives and deaths of those who have suffered under racism. To pretend ... that the issue presented in [Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978)] was the same as the issue in [Brown v. Board of Education, 347 U. S. 483 (1954)] is to pretend that history never happened and that the present doesn't exist.").
Our jurisprudence ranks race a "suspect" category, "not because [race] is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality." Norwalk Core v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (CA2 1968) (footnote omitted). But where race is considered "for the purpose of achieving equality," id., at 932, no

302 automatic proscription is in order. *302 For, as insightfully explained: "The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination." United States v. Jefferson County Bd. of Ed., 372 F. 2d 836, 876 (CA5 1966) (Wisdom, J.); see Wechsler, The Nationalization of Civil Liberties and Civil Rights, Supp. to 12 Tex. Q. 10, 23 (1968) (Brown may be seen as disallowing racial classifications that "impl[y] an invidious assessment" while allowing such classifications when "not invidious in implication" but advanced to "correct inequalities"). Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality. See Grutter, post, at 344 (GINSBURG, J., concurring) (citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination against Women).
The mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection. See Jefferson County, 372 F. 2d, at 876 ("The criterion is the relevancy of color to a legitimate governmental purpose."). Close review is needed "to ferret out classifications in reality malign, but masquerading as benign," Adarand, 515 U. S., at 275 (GINSBURG, J., dissenting), and to "ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups," id., at 276.
II
Examining in this light the admissions policy employed by the University of Michigan's College of Literature, 303 Science, and the Arts (College), and for the reasons well stated by *303 JUSTICE SOUTER, I see no
constitutional infirmity. See ante, at 293-298 (dissenting opinion). Like other topranking institutions, the College has many more applicants for admission than it can accommodate in an entering class. App. to Pet. for Cert. 108a. Every applicant admitted under the current plan, petitioners do not here dispute, is qualified to attend the College. Id., at 111a. The racial and ethnic groups to which the College accords special consideration (African-Americans, Hispanics, and Native-Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day, see supra, at 298-301. There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race. See Brief for Respondent Bollinger et al. 10; Tr. of Oral Arg. 41-42 (in the range between 75 and 100 points, the review committee may look at applications individually and ignore the points). Nor has there been any demonstration that the College's program unduly constricts admissions opportunities for students who do not receive special consideration based on race. Cf. Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1049 (2002) ("In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants.").[10]
304 *304 The stain of generations of racial oppression is still visible in our society, see Krieger, 86 Calif. L. Rev., at 1253, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore,

that colleges and universities will seek to maintain their minority enrollment—and the networks and opportunities thereby opened to minority graduates—whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers' recommendations may emphasize who a student is as much as what he or she has accomplished. See, e. g., Steinberg, Using 305 Synonyms for Race, College Strives for Diversity, *305 N. Y. Times, Dec. 8, 2002, section 1, p. 1, col. 3 (describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14-15 (suggesting institutions could consider, inter alia, "a history of overcoming disadvantage," "reputation and location of high school," and "individual outlook as reflected by essays"). If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.[11]
* * *
For the reasons stated, I would affirm the judgment of the District Court.
[*] Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Charlie Crist, Attorney General of Florida, Christopher M. Kise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy Lynch, James L. Swanson, and Samuel Estreicher; for the Center for Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the Center for Individual Freedom by Renee L. Giachino; for the Center for New Black Leadership by Clint Bolick, William H. Mellor, and Richard D. Komer; for the Center for the Advancement of Capitalism by David Reed Burton; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars by William F. Mohrman; for the National Association of Scholars by William H. Allen, Oscar M. Garibaldi, and Keith A. Noreika; for the Pacific Legal Foundation by John H. Findley; and for the Reason Foundation by Martin S. Kaufman.
Briefs of amici curiae urging affirmance were filed for Members of the United States Congress by Leslie T. Thornton and Steven M. Schneebaum; for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Andrew H. Baida, Solicitor General, Mark J. Davis and William F. Brockman, Assistant Attorneys General, Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pandya, Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peggy A. Lautenschlager of Wisconsin; for the State of New Jersey by David Samson, Attorney General, Jeffrey Burstein, Assistant Attorney General, and Donna Arons and Anne Marie Kelly, Deputy Attorneys General; for New York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Victor A. Bolden and Nelson A. Diaz; for the American Educational Research Association et al. by Angelo N. Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Sinensky, Kara H. Stein, and Richard T. Foltin; for the American Psychological Association by Paul R. Friedman, William F. Sheehan, and Nathalie F. P. Gilfoyle; for Amherst College et al. by Charles S. Sims; for the Authors of the Texas Ten Percent Plan by Rolando L. Rios; for the Bay Mills Indian Community et al. by Vanya S. Hogen; for the College Board by Janet Pitterle Holt; for Columbia University et al. by Floyd Abrams, Susan Buckley, and James J. Mingle; for Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for Howard University by Janell M. Byrd; for the Lawyers' Committee for Civil Rights Under Law et al. by John S. Skilton, Barbara R. Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger, Judith L. Lichtman, and Jocelyn C. Frye; for the Leadership Conference on Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the National Coalition of Blacks for Reparations in America et al. by Kevin Outterson; for the National Education Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg, Larry P. Weinberg, and John C. Dempsey; for the National Urban League et al. by William A. Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D. Patricia Wallace; for

Northeastern University by Daryl J. Lapp and Lisa A. Sinclair; for the NOW Legal Defense and Education Fund et al. by Wendy R. Weiser and Martha F. Davis; for the United Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Pittsburgh et al. by David C. Frederick and Sean A. Lev; for Lieutenant General Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder, Robert P. Charrow, and Kevin E. Stern; for Senator Thomas A. Daschle et al. by David T. Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; and for Glenn C. Loury et al. by Jeffrey F. Liss and James J. Halpert.
Briefs of amici curiae were filed for Michigan Governor Jennifer M. Granholm by John D. Pirich and Mark A. Goldsmith; for the American Federation of Labor and Congress of Industrial Organizations by Harold Craig Becker, David J. Strom, Jonathan P. Hiatt, and Daniel W. Sherrick; for the Asian American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for the Anti-Defamation League by Martin E. Karlinsky and Steven M. Freeman; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers Association of Greater Chicago, Inc., by Sharon E. Jones; for Carnegie Mellon University et al. by W. Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and Edward N. Stoner II; for the Equal Employment Advisory Council by Jeffrey A. Norris and Ann Elizabeth Reesman; for Exxon Mobil Corp. by Richard R. Brann; for General Motors Corp. by Kenneth S. Geller, Eileen Penner, and Thomas A. Gottschalk; for Human Rights Advocates et al. by Constance de la Vega; for the Massachusetts Institute of Technology et al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and Stacey J. Mobley; for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Jonathan M. Cohen, Karen K. Narasaki, Vincent A. Eng, and Trang Q. Tran; for the National Council of La Raza et al. by Vilma S. Martinez and Jeffrey L. Bleich; for the National School Boards Association et al. by Julie Underwood and Naomi Gittins; for 3M et al. by David W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr., Charles R. Wall, Martin J. Barrington, Deval L. Patrick, John R. Parker, Jr., William J. O'Brien, Gary P. Van Graafeiland, Kathryn A. Oberly, Randall E. Mehrberg, Donald M. Remy, Ben W. Heineman, Jr., Brackett B. Denniston III, Elpidio Villarreal, Wayne A. Budd, J. Richard Smith, Stewart S. Hudnut, John A. Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R. Andrews, Jeffrey B. Kindler, Teresa M. Holland, Charles W. Gerdts III, John L. Sander, Mark P. Klein, and Stephen P. Sawyer; for Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles; for Duane C. Ellison, by Mr. Ellison, pro se, and Carl V. Angelis; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith.
[1] Although Hamacher indicated that he "intend[ed] to apply to transfer ifthe [LSA's] discriminatory admissions system [is] eliminated," he has since graduated from Michigan State University. App. 34.
[2] The University of Michigan Board of Regents was subsequently named as the proper defendant in place of the University and the LSA. See id., at 17.
[3] Duderstadt was the president of the University during the time that Gratz's application was under consideration. He has been sued in his individual capacity. Bollinger was the president of the University when Hamacher applied for admission. He was originally sued in both his individual and official capacities, but he is no longer the president of the University. Id., at 35.
[4] A group of African-American and Latino students who applied for, or intended to apply for, admission to the University, as well as the Citizens for Affirmative Action's Preservation, a nonprofit organization in Michigan, sought to intervene pursuant to Federal Rule of Civil Procedure 24. See App. 13-14. The District Court originally denied this request, see id., at 14-15, but the Sixth Circuit reversed that decision. See Gratz v. Bollinger, 188 F. 3d 394 (1999).
[5] The District Court decided also to consider petitioners' request for injunctive and declaratory relief during the liability phase of the proceedings. App. 71.
[6] Our description is taken, in large part, from the "Joint Proposed Summary of Undisputed Facts Regarding Admissions Process" filed by the parties in the District Court. App. to Pet. for Cert. 108a-117a.
[7] In 1995, counselors used four such tables for different groups of applicants: (1) in-state, nonminority applicants; (2) out-of-state, nonminority applicants; (3) in-state, minority applicants; and (4) out-of-state, minority applicants. In 1996, only two tables were used, one for in-state applicants and one for out-of-state applicants. But each cell on these two tables contained separate courses of action for minority applicants and nonminority applicants whose GPA 2 scores and ACT/SAT scores placed them in that cell.
[8] LSA applicants who are Michigan residents must accumulate 80 points from the selection index criteria to be flagged, while out-of-state applicants need to accumulate 75 points to be eligible for such consideration. See App. 257.
[9] The District Court considered and rejected respondent-intervenors' arguments in a supplemental opinion and order. See 135 F. Supp. 2d 790 (ED Mich. 2001). The court explained that respondent-intervenors "failed to present any evidence that the discrimination alleged by them, or the continuing effects of such discrimination, was the real justification for the LSA's race-conscious admissions programs." Id., at 795. We agree, and to the extent respondent-intervenors reassert this justification, a justification the University has never asserted throughout the course of this litigation, we affirm the District Court's disposition of the issue.
[10] The District Court determined that respondents Bollinger and Duderstadt, who were sued in their individual capacities under Rev. Stat.

§ 1979, 42 U. S. C. § 1983, were entitled to summary judgment based on the doctrine of qualified immunity. See 122 F. Supp. 2d, at 833834. Petitioners have not asked this Court to review this aspect of the District Court's decision. The District Court denied the Board of Regents' motion for summary judgment with respect to petitioners' Title VI claim on Eleventh Amendment immunity grounds. See id., at 834-836. Respondents have not asked this Court to review this aspect of the District Court's decision.
[11] The Equal Protection Clause of the Fourteenth Amendment explains that "[n]o State shall. .. deny to any person within its jurisdiction the equal protection of the laws."
[12] Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U. S. C. § 2000d.
[13] Section 1981(a) provides:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens."
[14] This finding is further corroborated by Hamacher's request that the District Court "[r]equir[e] the LSA College to offer [him] admission as a transfer student." App. 40.
[15] Although we do not resolve here whether such an inquiry in this case is appropriately addressed under the rubric of standing or adequacy, we note that there is tension in our prior cases in this regard. See, e. g., Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U. C. D. L. Rev. 1239, 1240-1241 (1989); General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 149 (1982) (Mexican-American plaintiff alleging that he was passed over for a promotion because of race was not an adequate representative to "maintain a class action on behalf of Mexican-American applicants" who were not hired by the same employer); Blum v. Yaretsky, 457 U. S. 991 (1982) (class representatives who had been transferred to lower levels of medical care lacked standing to challenge transfers to higher levels of care).
[16] Because the University's guidelines concededly use race in evaluating both freshman and transfer applications, and because petitioners have challenged any use of race by the University in undergraduate admissions, the transfer admissions policy is very much before this Court. Although petitioners did not raise a narrow tailoring challenge to the transfer policy, as counsel for petitioners repeatedly explained, the transfer policy is before this Court in that petitioners challenged any use of race by the University to promote diversity, including through the transfer policy. See Tr. of Oral Arg. 4 ("[T]he [transfer]policy isessentially the same with respect to the consideration of race"); id., at 5 ("The transfer policy considers race"); id., at 6 (same); id., at 7 ("[T]he transfer policy and the [freshman] admissions policy are fundamentally the same in the respect that they both consider race in the admissions process in a way that is discriminatory"); id., at 78 ("[T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor").
[17] Indeed, as the litigation history of this case demonstrates, "the class-action device save[d] the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion." Califano v. Yamasaki, 442 U. S. 682, 701 (1979). This case was therefore quite unlike General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), in which we found that the named representative, who had been passed over for a promotion, was not an adequate representative for absent class members who were never hired in the first instance. As we explained, the plaintiff's "evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact. . . . It is clear that the maintenance of respondent's action as a class action did not advance `the efficiency and economy of litigation which is a principal purpose of the procedure.' " Id., at 159 (quoting American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 553 (1974)).
[18] U.C. Davis set aside 16 of the 100 seatsavailable in its first year medical school program for "economically and/or educationally disadvantaged" applicants who were also members of designated "minority groups" as defined by the university. "To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, ratherthan the 100 open to minority applicants." Regents of Univ.ofCal. v. Bakke, 438 U. S. 265, 274, 289 (1978) (principal opinion). Justice Powell found that the program employed an impermissible two-track system that "disregard[ed] .. . individual rights as guaranteed by the Fourteenth Amendment." Id., at 320. He reached this conclusion even though the university argued that "the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups" was "the only effective means of serving the interest of diversity." Id., at 315. Justice Powell concluded that such arguments misunderstood the very nature of the diversity he found to be compelling. See ibid.
[19] Justice Souter recognizes that the LSA's use of race is decisive in practice, but he attempts to avoid that fact through unsupported

speculation about the self-selection of minorities in the applicant pool. See post, at 296 (dissenting opinion).
[20] Justice Souter is therefore wrong when he contends that "applicants to the undergraduate college are [not] denied individualized consideration." Post, at 295. As Justice O'Connor explains in her concurrence, the LSA's program "ensures that the diversity contributions of applicants cannot be individually assessed." Post, at 279.
[21] Justice Souter is mistaken in his assertion that the Court "take[s] it upon itself to apply a newly-formulated legal standard to an undeveloped record." Post, at 297, n. 3. He ignores the fact that respondents have told us all that is necessary to decide this case. As explained above, respondents concede that only a portion of the applications are reviewed by the ARC and that the "bulk of admissions decisions" are based on the point system. It should be readily apparent that the availability of this review, which comes after the automatic distribution of points, is far more limited than the individualized review given to the "large middle group of applicants" discussed by Justice Powell and described by the Harvard plan in Bakke. 438 U. S., at 316 (internal quotation marks omitted).
[22] Justice Ginsburg in her dissent observes that "[o]ne can reasonably anticipate . . . that colleges and universities will seek tomaintain their minority enrollment. . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue." Post, at 304. She goes on to say that "[i]f honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises." Post, at 305. These observations are remarkable for two reasons. First, they suggest that universities—to whose academic judgment we are told in Grutter v. Bollinger, post, at 328, we should defer— will pursue their affirmative-action programs whether or not they violate the United States Constitution. Second, they recommend that these violations should be dealt with, not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities.
[23] We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U. S. 275, 281 (2001); United States v. Fordice, 505 U. S. 717, 732, n. 7 (1992); Alexander v. Choate, 469 U. S. 287, 293 (1985). Likewise, with respect to § 1981, we have explained that the provision was "meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race." McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 295-296 (1976). Furthermore, we have explained that a contract for educational services is a "contract" for purposes of § 1981. See Runyon v. McCrary, 427 U. S. 160, 172 (1976). Finally, purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate § 1981. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389-390 (1982).
[*] Justice Breyer joins this opinion, except for the last sentence.
[1] In challenging the use of race in admissions at Michigan's law school, Barbara Grutter alleged in her complaint that she "has not attended any other law school" and that she "still desires to attend the Law School and become a lawyer." App. in No. 02-241, p. 30.
[2] Petitioners did not seek to have Gratz represent the class pursuant to Federal Rule of Civil Procedure 23(b)(2). See App. 71, n. 3.
[3] In arguing that Hamacher lacked standing, Michigan also asserted that Hamacher "would need to achieve a 3.0 grade point average to attempt to transfer to the University of Michigan." Id., at 64, n. 2. The District Court rejected this argument, concluding that "Hamacher's present grades are not a factor to be considered at this time." Id., at 67.
[4] In responding to questions about petitioners' standing at oral argument, petitioners' counsel alluded to the fact that Michigan might continually change the details of its admissions policy. See Tr. of Oral Arg. 9. The change in Michigan's freshman admissions policy, however, is not the reason why petitioners cannot establish standing to seek prospective relief. Rather, the reason they lack standing to seek forward-looking relief is that when this suit was filed, neither faced a "`real and immediate threat' " of future injury under Michigan's freshman admissions policy given that they had both already enrolled at other institutions. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 210-211 (1995) (quoting Los Angeles v. Lyons, 461 U. S. 95, 105 (1983)). Their decision to obtain a college education elsewhere distinguishes this case from Allan Bakke's single-minded pursuit of a medical education from the University of California at Davis. See Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978); cf. DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam).
[5] Hamacher clearly can no longer claim an intent to transfer into Michigan's undergraduate program given that he graduated from college in 2001. However, this fact alone is not necessarily fatal to the instant class action because we have recognized that, if a named class representative has standing at the time a suit is initiated, class actions may proceed in some instances following mootness of the named class representative's claim. See, e. g., Sosna v. Iowa, 419 U. S. 393, 402 (1975) (holding that the requisite Article III "case or controversy" may exist "between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot"); Franks v. Bowman Transp. Co., 424 U. S. 747 (1976). The problem in this case is that neither Gratz nor Hamacher had standing to assert a forward-looking, injunctive claim in federal court at the time this suit was initiated.
[6] Under the majority's view of standing, there would be no end to Hamacher's ability to challenge any use of race by the University in a

variety of programs. For if Hamacher's right to complain about the transfer policy gives him standing to challenge the freshman policy, presumably his ability to complain about the transfer policy likewise would enable him to challenge Michigan's law school admissions policy, as well as any other race-based admissions policy used by Michigan.
[7] Of course, the injury to Hamacher would give him standing to claim damages for past harm on behalf of class members, but he was certified as the class representative for the limited purpose of seeking injunctive and declaratory relief.
[1] The Court's holding arguably exposes a weakness in the rule of Blum v. Yaretsky, 457 U. S. 991 (1982),that Article III standing may not be satisfied by the unnamed members of a duly certified class. But no party has invited us to reconsider Blum, and I follow Justice Stevens in approaching the case on the assumption that Blum is settled law.
[2] For that matter, as the Court suggests, narrow tailoring challenges against the two policies could well have different outcomes. Ante, at 266. The record on the decisionmaking process for transfer applicants is understandably thin, given that petitioners never raised a narrow tailoring challenge against it. Most importantly, however, the transfer policy does not use a points-based "selection index" to evaluate transfer applicants, but rather considers race as one of many factors in making the general determination whether the applicant would make a "`contribution to a diverse student body.'" Ante, at 265 (quoting 2 App. in No. 01-1333 etc. (CA6), p. 531 (capitalization omitted)). This limited glimpse into the transfer policy at least permits the inference that the university engages in a "holistic review" of transfer applications consistent with the program upheld today in Grutter v. Bollinger, post, at 337.
[3] The Court surmises that the committee does not contribute meaningfully to the university's individualized review of applications. Ante, at 273-274. The Court should not take it upon itself to apply a newly formulated legal standard to an undeveloped record. Given the District Court's statement that the committee may examine "any number of applicants, including applicants other than under-represented minority applicants," 122 F. Supp. 2d 811, 830 (ED Mich. 2000), it is quite possible that further factual development would reveal the committee to be a "source of individualized consideration" sufficient to satisfy the Court's rule, ante, at 279 (O'CONNOR, J.,concurring). Determination of that issue in the first instance is a job for the District Court, not for this Court on a record that is admittedly lacking.
[4] Of course it might be pointless in the State of Michigan, where minorities are a much smaller fraction of the population than in California, Florida, or Texas. Brief for Respondents Bollinger et al. 48-49.
[*] JUSTICE BREYER joins Part I of this opinion.
[1] See, e. g., U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2002, p. 368 (2002) (Table 562) (hereinafter Statistical Abstract) (unemployment rate among whites was 3.7% in 1999, 3.5% in 2000, and 4.2% in 2001; during those years, the unemployment rate among African-Americans was 8.0%, 7.6%, and 8.7%, respectively; among Hispanics, 6.4%, 5.7%, and 6.6%).
[2] See, e. g., U. S. Dept of Commerce, Bureau of Census, Poverty in the United States: 2000, p. 291 (2001) (Table A) (In 2000, 7.5% of non-Hispanic whites, 22.1% of African-Americans, 10.8% of Asian-Americans, and 21.2% of Hispanics were living in poverty.); S. Staveteig & A. Wigton, Racial and Ethnic Disparities: Key Findings from the National Survey of America's Families 1 (Urban Institute Report B-5, Feb. 2000) ("Blacks, Hispanics, and Native Americans . . . each have poverty rates almost twice as high as Asians and almost three times as high as whites.").
[3] See, e. g., U. S. Dept. of Commerce, Bureau of Census, Health Insurance Coverage: 2000, p.391 (2001) (Table A) (In 2000, 9.7% of non-Hispanic whites were without health insurance, as compared to 18.5% of African-Americans, 18.0% of Asian-Americans, and 32.0% of Hispanics.); Waidmann & Rajan, Race and Ethnic Disparities in Health Care Access and Utilization: An Examination of State Variation, 57 Med. Care Res. and Rev. 55, 56 (2000) ("On average, Latinos and African Americans have both worse health and worse access to effective health care than do non-Hispanic whites . . . .").
[4] See, e. g., U. S. Dept. of Commerce, Bureau of Census, Racial and Ethnic Residential Segregation in the United States: 1980-2000 (2002) (documenting residential segregation); E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/research/reseg03/ AreWeLosingtheDream.pdf (all Internet materials as visited June 2, 2003, and available in Clerk of Court's case file) ("[W]hites are the most segregated group in the nation's public schools; they attend schools, on average, where eighty percent of the student body is white."); id., at 28 ("[A]lmost three-fourths of black and Latino students attend schools that are predominantly minority. . . . More than one in six black children attend a school that is 99-100% minority . . . . One in nine Latino students attend virtually all minority schools.").
[5] See, e. g., Ryan, Schools, Race, and Money, 109 Yale L. J. 249, 273-274 (1999) ("Urban public schools are attended primarily by African-American and Hispanic students"; students who attend such schools are disproportionately poor, score poorly on standardized tests, and are far more likely to drop out than students who attend nonurban schools.).
[6] See, e. g., Statistical Abstract 140 (Table 211).

[7] See, e. g.,Holzer, Career Advancement Prospects and Strategies for Low-Wage Minority Workers, in Low-Wage Workers in the New Economy 228 (R. Kazis & M. Miller eds. 2001) ("[I]n studies that have sent matched pairs of minority and white applicants with apparently equal credentials to apply for jobs, whites routinely get more interviews and job offers than either black or Hispanic applicants."); M. Bertrand & S. Mullainathan, Are Emily and Brendan More Employable than Lakisha and Jamal?: A Field Experiment on Labor Market Discrimination (Nov. 18, 2002), http:// gsb.uchicago.edu/pdf/bertrand.pdf; Mincy, The Urban Institute Audit Studies: Their Research and Policy Context, in Clear and Convincing Evidence: Measurement of Discrimination in America 165-186 (M. Fix & R. Struyk eds. 1993).
[8] See, e. g.,M. Turner et al.,Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000, pp. i, iii (Nov. 2002), http://www.huduser.org/Publications/pdf/Phase1_Report.pdf (paired testing in which "two individuals—one minority and the other white—pose as otherwise identical homeseekers, and visit real estate or rental agents to inquire about the availability of advertised housing units" revealed that "discrimination still persists in both rental and sales markets of large metropolitan areas nationwide"); M. Turner & F. Skidmore, Mortgage Lending Discrimination: A Review of Existing Evidence 2 (1999) (existing research evidence shows that minority homebuyers in the United States "face discrimination from mortgage lending institutions.").
[9] See, e. g., Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of its Cause, 94 Mich. L. Rev. 109, 109110 (1995) (study in which 38 testers negotiated the purchase of more than 400 automobiles confirmed earlier finding "that dealers systematically offer lower prices to white males than to other tester types").
[10] The United States points to the "percentage plans" used in California, Florida, and Texas as one example of a "race-neutral alternativ[e]" that would permit the College to enroll meaningful numbers of minority students. Brief for United States as Amicus Curiae 14; see U. S. Commission on Civil Rights, Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education 1 (Nov. 2002), http://www.usccr.gov/pubs/ percent2/percent2.pdf (percentage plans guarantee admission to state universities for a fixed percentage of the top students from high schools in the State). Calling such 10% or 20% plans "race-neutral" seems to me disingenuous, for they "unquestionably were adopted with the specific purpose of increasing representation of African-Americans and Hispanics in the public higher education system." Brief for Respondent Bollinger et al. 44; see C. Horn & S. Flores, Percent Plans in College Admissions: A Comparative Analysis of Three States' Experiences 14-19 (2003), http://www.civilrightsproject.harvard.edu/research/affirmativeaction/ tristate.pdf. Percentage plans depend for their effectiveness on continued racial segregation at the secondary school level: They can ensure significant minority enrollment in universities only if the majority-minority high school population is large enough to guarantee that, in many schools, most of the students in the top 10% or 20% are minorities. Moreover, because such plans link college admission to a single criterion—high school class rank—they create perverse incentives. They encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages. See Selingo, What States Aren't Saying About the `X-Percent Solution,' Chronicle of Higher Education, June 2, 2000, p. A31. And even if percentage plans could boost the sheer numbers of minority enrollees at the undergraduate level, they do not touch enrollment in graduate and professional schools.
[11] Contrary to the Court's contention, I do not suggest "changing the Constitution so that it conforms to the conduct of the universities." Ante, at 275, n. 22. In my view, the Constitution, properly interpreted, permits government officials to respond openly to the continuing importance of race. See supra, at 301-302. Among constitutionally permissible options, those that candidly disclose their consideration of race seem to me preferable to those that conceal it.
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