Defendants' Renewed Motion for Summary Judgment in Gratz

PROCEDURAL HISTORY

On December 23, 1998, this Court certified a plaintiff class — “limited to injunctive and declaratory relief” — on the question “whether defendants’ use of race as a factor in admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.” (Opinion, Dec. 23, 1998, at 15.) Mirroring the limited certification decision, the Court also bifurcated the proceedings in this case into two separate phases, which it referred to as a “liability” phase and a “damage[s]” phase. (Id. at 16.)

On May 1, 2000, in response to Defendants’ motion for relief from the prior order in light of intervening case law, this Court clarified what it meant by the terms “liability” and “damages,” and how it envisioned the bifurcated trial would proceed. The Court emphasized that it had used “liability” as a shorthand way of saying liability on the claims seeking injunctive and declaratory relief so that “the ‘liability’ phase of this action … has been specifically limited to plaintiffs’ claims for injunctive and declaratory relief.” ²/ (Opinion and Order, May 1, 2000, at 4.) The second phase of the litigation is to focus solely on Plaintiffs’ claims for damages. (See Id. at 6.) The Court “recognize[d] that the ‘damages’ phase of this lawsuit … also includes a ‘liability’ factor” to the extent that it will decide whether Defendants are liable to particular plaintiffs for damages for past or current conduct.³/ (Id. at 4-5.) Nevertheless, the Court emphasized that only claims for injunctive and declaratory relief are before the Court for the first phase of the trial.⁴/ (See Id. at 2, 4, 6.) Thus, Defendants renew their motion for summary judgment only as to Plaintiffs’ claims for injunctive and declaratory relief because this Court has ruled that “only plaintiffs’ claims for injunctive and declaratory relief are being addressed” at this point in the litigation. (Id. at 6; See also Opinion, Dec. 23, 1998, at 15.)

² / Defendants have petitioned for appellate review of this Court’s class certification decision. That petition remains pending in the Sixth Circuit. In their petition, Defendants argue that Rule 23(b)(2) certification is improper because the class of past applicants lacks standing to seek injunctive relief “with respect to the class as a whole.” Defendants further argue that, because the class cannot benefit from classwide injunctive relief, “this class must be viewed as a damages class, despite the district Court’s contention that it is an injunctive class.” (Petition for Permission to Appeal, May 11, 2000, at 10; See also Id. at 11 (“[T]he class certified in this case must in fact be viewed as one seeking damages.”).) In other words, a court would have no choice but to treat the class as a damages class because its members cannot seek the kind of relief that is ostensibly at stake in the first phase of the trial. Of course, because this Court rejected Defendants’ view, Defendants will proceed as this Court has ordered and therefore limit this motion to Plaintiffs’ purported claims for forward-looking, classwide injunctive and declaratory relief.

³ / In fact, this Court has relegated one of Defendants’ defenses solely to the second phase of the litigation because it concluded that it is a defense to liability for damages, not for injunctive and declaratory relief. (See Opinion and Order, May 1, 2000, at 3-5 (concluding that, although Texas v. LeSage, 120 S. Ct. 467 (1999), entitles Defendants to judgment in their favor if they can show that Plaintiffs do not intend to apply to the University in the future and would not have been admitted under a race neutral system, this defense is “irrelevant” to the first phase of this case).)

⁴ / This Court has ruled that it “will not consider claims for damages at this time,” (Opinion, Dec. 23, 1998, at 15) because “the class members’ claims for damages are not currently before the Court,” (Opinion and Order, May 1, 2000, at 6). Therefore, Defendants will renew their summary judgment motion with respect to Plaintiffs’ damages claims only after liability in the first phase of the litigation is determined, with the exception of renewal by Defendants Lee Bollinger and James Duderstadt of their motion for summary judgment based on qualified immunity. The individual defendants renew that motion today (See Memorandum in Support of Defendants Bollinger and Duderstadt’s Renewed Motion for Summary Judgment on Grounds of Qualified Immunity) in light of the well-established doctrine that qualified immunity should be decided as quickly as possible to minimize the litigation burdens on individual defendants who are improperly sued. See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991).

This Court’s bifurcation ruling has another consequence that affects the scope of this summary judgment motion. As it has done each year before and during this litigation, the University has continued to evaluate and adjust the guidelines and procedures that govern its admissions system. (See Ex. Y, College of LS&A Guidelines for All Terms 2000; Ex. Z, 2000 Selection Index Guidelines; Ex. AA, 2000 Procedures for Reviewing LS&A Applications; Admissions Director Spencer Dep. at 96-97, 116, 143-44.)⁵/ Although the basic principles in use today — including the competitive consideration of race as one of many factors — have not changed, many of the mechanics of the process are different than when Jennifer Gratz and Patrick Hamacher applied to LS&A in 1995 and 1997, respectively. Because “only plaintiffs’ claims for injunctive and declaratory relief,” (Opinion and Order, May 1, 2000, at 6) are at stake in this portion of the bifurcated proceeding, only the current admissions system is relevant to whether any violation has occurred that could be remedied by forward-looking relief, which could require the University to alter its admissions practices. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998); City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).

⁵ / The exhibits cited in this Memorandum are reproduced in Volume 1 of the Appendix and are cited as “Ex. A at ___.” Deposition testimony, organized by deponent, is reproduced in Volume 2 of the Appendix and is cited as “Spencer Dep. at ___.” Expert witness reports are reproduced in Volume 3 of the Appendix and are cited as “Sugrue Rep. at ___.” Orders issued by this Court and amicus briefs filed with this court as part of the initial summary judgment briefing in 1999 are reproduced in Volume 4 of the Appendix.

Memorandum Table of Contents | Gratz briefs – Table of Contents