University answer to Gratz law suit

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,
______________________________________

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)     Civil Action #97-75231
)     Hon. Patrick Duggan
)     Hon. Thomas A.Carlson
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ANSWER

Defendants Lee Bollinger, James J. Duderstadt, and the Regents of the University of Michigan hereby answer the Complaint. Defendants treat named defendants "The University of Michigan" and "The University of Michigan College of Literature, Arts and Science" as referring to the "Regents of the University of Michigan," the body corporate with the authority to be sued under law, and respond to the Complaint on that basis. Accordingly, the term "defendants" as used in this Answer refers to Bollinger, Duderstadt and the Regents of the University of Michigan. Defendants would not object to the filing of an Amended Complaint that replaced "The University of Michigan" and "The University of Michigan College of Literature, Arts and Science," which are not proper defendants, with the "Regents of the University of Michigan."
Except as hereinafter expressly admitted, qualified, or otherwise admitted, defendants specifically deny each and every allegation, statement, matter and thing contained in the Complaint. Defendants respond to the numbered allegations in the Complaint on knowledge to themselves and on information and belief as to other matters, as follows:
1.   No response is required to the allegations in paragraph 1 of the Complaint, which are the plaintiff's characterization of their claims.
2.   Defendants deny the allegations in paragraph 2 of the Complaint.
3.   Defendants admit that, to the extent that the Court has subject-matter jurisdiction, venue is proper in this Court. Defendants deny all of the remaining allegations in paragraph 3 of the Complaint.
4.   Defendant the Regents of the University of Michigan states that, on or about January 12, 1995, the University of Michigan-Ann Arbor received an application for freshman admission to the University's College of Literature, Science and Arts for the fall 1995 term from Jennifer Gratz. On January 19, 1995, the University of Michigan-Ann Arbor sent a letter to Gratz informing her that it was delaying decision on her application. On April 24, 1995, the University of Michigan-Ann Arbor sent a letter to Gratz informing her that her application was rejected, but offering her a position on an "extended wait list." Gratz did not respond to the offer, and therefore was not considered further when other students were admitted from the extended wait list. Defendant the Regents of the University of Michigan admits that Gratz was admitted to the University of Michigan-Dearborn on December 6, 1994, and that she attends the University of Michigan-Dearborn. Defendants Bollinger and Duderstadt lack personal knowledge with respect to Gratz' application. All defendants lack knowledge and information sufficient to form a belief as to the truth or falsity of the remaining allegations of paragraph 4 of the Complaint.
5.    Defendant the Regents of the University of Michigan states that on or about October 23, 1996, the University of Michigan-Ann Arbor received an application for freshman admission to the University's College of Literature, Science and Arts for the fall 1997 term from Patrick Hamacher. On November 19, 1996, the University of Michigan-Ann Arbor sent a letter to Hamacher informing him that it was delaying decision on his application. On April 14, 1997, the University of Michigan-Ann Arbor sent a letter to Hamacher informing him that his application was rejected, but offering him a position on an "extended wait list." Hamacher did not respond to the offer, and therefore was not considered further when other students were admitted from the extended wait list. Defendants Bollinger, Duderstadt lack personal knowledge with respect to Hamacher's application. Defendants deny that they employ or employed the "discriminatory admissions system" described in the Complaint. All Defendants lack knowledge and information sufficient to form a belief as to the truth of falsity of the remaining allegations of paragraph 5 of the Complaint.
6.   Defendants admit the allegations in the first sentence of paragraph 6 of the Complaint. Defendants do not understand the second sentence of paragraph 6 of the Complaint as pleaded, but state that the College of Literature, Science and the Arts is a college of the University of Michigan.
7.   Defendants admit the allegations in the first sentence of paragraph 7 of the Complaint. In response to the second sentence, defendants state that during the time that Gratz' application was under consideration, Duderstadt, as president of the University of Michigan, served as the University's chief administrative officer, and had oversight responsibility for the University's admissions policies. Defendants admit that plaintiffs purport to sue Duderstadt in his individual capacity.
8.   Defendants admit the first paragraph 8 of the Complaint, and admit that plaintiffs purport to sue Bollinger in his individual and official capacities. Defendants further state that as president of the University of Michigan, Bollinger is the University's chief administrative officer, and has oversight responsibility for the University's admissions policies. With respect to the last sentence of paragraph 8 of the Complaint, defendants state that the Complaint inaccurately describes the University of Michigan's admissions process, and therefore that no response is required. To the extent that a response is deemed necessary, defendants the Regents of the University of Michigan and Bollinger state that they do have a current intention to continue using race as one of many factors considered in admissions, and deny the remaining allegations of the last sentence of paragraph 8 of the Complaint. To the extent that a response is deemed necessary, defendant Duderstadt lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in the last sentence of paragraph 8 of the Complaint.
9.   Defendants admit that plaintiffs purport to bring this action as a class action. No response is necessary to the plaintiff's characterization of their claims in the remainder of paragraph 9 of the Complaint.
10.   Defendants admit that plaintiffs seek to maintain a class. No response is necessary to the plaintiff's characterization of their claims in the remainder of paragraph 10 of the Complaint.
11.   Defendants admit that the University of Michigan receives thousands of applications each year for freshman admission into the College of Literature, Science and the Arts, and that some of the names and addresses of rejected applications may be obtained from files maintained by the Office of Undergraduate Admissions. Defendants deny all of the remaining allegations in paragraph 11 of the Complaint.
12.   Defendants deny the allegations in paragraph 12 of the Complaint.
13.   Defendants deny the allegations in paragraph 13 of the Complaint, except that defendants lack information or knowledge sufficient to form a belief as to the truth of the allegations regarding the competence and experience of plaintiffs' counsel.
14.   Defendants deny the allegations in paragraph 14 of the Complaint.
15.   Defendants state that the University of Michigan is an entity created by the Michigan State Constitution. Defendants admit that the University of Michigan, which includes the College of Literature, Science and the Arts, receives federal funds.
16.   Defendants admit that the University of Michigan's Application for Undergraduate Admission permits applications to indicate their race. Defendants deny all of the remaining allegations in paragraph 16 of the Complaint.
17.   Defendants state that Gratz identified her race as "white/Caucasian," but lack knowledge or information whether she so indicated on her application for freshman admission. Defendants further state that Hamacher declined to indicate his race on his application, but state on information and belief that Hamacher disclosed, in taking the ACT examination, that his race was "white/Caucasian."
18.   Defendants state that the University of Michigan uses race as a factor in admissions, as part of a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important elements. Defendants deny all of the remaining allegations in paragraph 18 of the Complaint.
19.   Defendants state that the University of Michigan applies rigorous admissions standards to all applicants; and that all admitted students are fully qualified to succeed at the University. Defendants further state that the University of Michigan uses race as a factor in admissions, as part of a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Defendants deny all of the remaining allegations in paragraph 19 of the Complaint.
20.   Defendants deny the allegations in paragraph 20 of the Complaint.
21.   Defendants admit that plaintiffs are not members of an underrepresented minority group and that their race was not a factor that enhanced the University of Michigan's consideration of their applications. Defendants deny all of the remaining allegations in paragraph 21 of the Complaint.
22.   Defendants state that high school grades in academic courses represent the predominant factor used for determining admission to the University of Michigan, College of Literature, Science and the Arts. Defendants admit the University of Michigan uses race as a factor in admissions, as part of a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Defendants deny all of the remaining allegations of paragraph 22 of the Complaint.
23.   Paragraph 23 of the Complaint states a conclusion of law to which no response is necessary. To the extent that a response is deemed necessary, defendants deny the allegations in paragraph 23 of the Complaint.
24.   Defendants deny the allegations in paragraph 24 of the Complaint.
25.   Defendants deny the allegations in the first sentence of paragraph 25 of the Complaint. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the other allegations in paragraph 25 of the Complaint.
26.   Defendants deny the allegations in paragraph 26 of the Complaint.
27.   Defendants admit that the University of Michigan has s current intention to continue to use race as a factor in admissions, as part of a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Defendants deny all of the remaining allegations in paragraph 27 of the Complaint.
RESPONSE TO PLAINTIFFS' FIRST CLAIM
28.   Defendants repeat their responses to the allegations of paragraph 1-27 of the Complaint as set forth above.
29.   Paragraph 29 sets forth a conclusion of law to which no response is required. To the extent a response is required, defendants deny the allegations in paragraph 29 of the Complaint.
30.   Paragraph 30 sets forth a conclusion of law to which no response is required. To the extent a response is required, defendants deny the allegations in paragraph 30 of the Complaint.
RESPONSE TO PLAINTIFFS' SECOND CLAIM
31.   Defendants repeat their responses to the allegations of paragraph 1-30 of the Complaint as set forth above.
32.   Defendants state that the University of Michigan is an entity created by the Michigan State Constitution. Defendants admit that the University of Michigan, which includes the College of Literature, Science and the Arts, receives federal funds. Defendants deny the remaining allegations in paragraph 32 of the Complaint.
No response is required to the remainder of the Complaint, which sets forth plaintiffs' prayer for relief. To the extent that a response is required, defendants deny the remaining allegations in the Complaint.
AFFIRMATIVE DEFENSES
Defendants assert the following affirmative defenses based on their current knowledge and information.
1.   The Complaint fails to state a claim upon which relief may be granted.
2.   This Court lacks subject-matter jurisdiction over the Complaint because the plaintiffs lack standing.
3.   Defendants Duderstadt and Bollinger did not violate plaintiffs' clearly established rights, and are therefore qualifiedly immune from suit.
4.   This Court lacks subject-matter jurisdiction over the Regents of the University of Michigan, and over Bollinger in his official capacity, both of whom are immune from suit in federal court by the doctrine of sovereign immunity.
5.   Plaintiffs' claims are barred by the doctrine of mootness.
6.   Plaintiffs have failed to mitigate their damages, if any.
7.   Plaintiffs' claims are barred by the doctrine of laches.
8.   Plaintiffs have named improper defendants. Defendants would not object to the filing of an Amended Complaint that replaced "The University of Michigan" and "The University of Michigan College of Literature, Arts and Science," which are not proper defendants, with the "Regents of the University of Michigan."
9.   Defendants state that they assert these affirmative defenses based upon information presently available and in order to avoid waiver. Defendants reserve the right to withdraw any of these affirmative defenses of to assert additional affirmative defenses as further information becomes available.
Wherefore, defendants pray for a judgment dismissing the Complaint with prejudice and awarding them the costs and disbursements of this action, together with attorneys' fees, and such additional relief as the Court may deem just and proper.

Dated: December 3, 1997

Respectfully submitted,

______________________________
John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2445 N Street, N.W.
Washington, D.C. 20037
(202) 663-6000

______________________________
Leonard M. Niehoff
     P36695
BUTZEL LONG
350 South Main Street, Suite 300
Ann Arbor, MI 48104
(313) 213-3625

CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of December, 1997, true and correct copies of the foregoing Answer were served by first-class mail on:

Patrick J. Wright, Esq.
37781 Hollyhead
Farmington Hills, MI 48331
David F. Kerr, Esq.
Kirk Kolbo, Esq.
Maslon, Edelman, Borman & Brand
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402
Michael E. Rosman, Esq.
Michael P. McDonald, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 2003

____________________________
Leonard N. Niehoff

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Dated: December 3, 1997	Respectfully submitted, ______________________________ John Payton Jane Sherburne WILMER, CUTLER & PICKERING 2445 N Street, N.W. Washington, D.C. 20037 (202) 663-6000 ______________________________ Leonard M. Niehoff P36695 BUTZEL LONG 350 South Main Street, Suite 300 Ann Arbor, MI 48104 (313) 213-3625
CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of December, 1997, true and correct copies of the foregoing Answer were served by first-class mail on:
Patrick J. Wright, Esq. 37781 Hollyhead Farmington Hills, MI 48331 David F. Kerr, Esq. Kirk Kolbo, Esq. Maslon, Edelman, Borman & Brand 3300 Norwest Center 90 South Seventh Street Minneapolis, MN 55402 Michael E. Rosman, Esq. Michael P. McDonald, Esq. Hans F. Bader, Esq. Center for Individual Rights 1233 20th Street, N.W. Washington, D.C. 2003	____________________________ Leonard N. Niehoff