Proposed answer of intervening defendants---Gratz

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
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, CANDICE B.N. REYNOLDS, by and
through their parents or guardians, DENISE
PATTERSON, MOISES MARTINEZ, LARRY
CRENSHAW, HARRY J. WILLLIAMS,
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 REYNOLDS, AND
CITIZENS FOR AFFIRMATIVE ACTION'S
PRESERVATION

Proposed Defendant-Intervenors.
_________________________________________

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

      PROPSED ANSWER
      OF INTERVENING
      DEFENDANTS

ANSWER OF INTERVENING DEFENDANTS
NOW COME intervening defendants, Ebony Patterson. Ruben Martinez, Laurent Crenshaw, Karla R. Williams. Larry Browm, 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 ¹, and Citizens for Affirmative Action's Preservation ("CAAP") and answer the Complaint. Except as hereafter expressly admitted, qualified. or otherwise admitted, intervening defendants specifically deny each and every allegation contained in the Complaint. Intervening defendants respond to the numbered allegations in the Complaint on personal knowledge or 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 plaintiffs' characterization of their claims.
2. Intervening defendants deny the allegations in paragraph 2 of the Complaint.
3. Intervening defendants admit that, to the extent that the Court has subject-matter jurisdiction, venue is proper in this Court. Intervening defendants deny all of the remaining allegations in paragraph 3 of the Complaint.
4. Intervening defendants neither admit nor deny the allegations of paragraph 4 of the Complaint, . lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
5. Intervening defendants neither admit nor deny the allegations in paragraph 5 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
6. Intervening defendants admit the allegations in the first sentence of paragraph 6 of the Complaint. Intervening defendants neither admit nor deny the remaining allegations in paragraph 6 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof, but state that the College of Literature, Science and the Arts is a college of the University of Michigan.
7. Intervening defendants neither admit nor deny the allegations of paragraph 7 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
8. Intervening defendants neither admit nor deny the allegations of paragraph 8 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
9. Intervening defendants admit that plaintiffs purport to bring this action as a class action. No response is necessary to the plaintiffs' characterization of their claims in the remainder of paragraph 9 of the Complaint.
10. Intervening defendants admit that plaintiffs seek to maintain a class. No response is necessary to the plaintiffs' characterization of their claims in the remainder of paragraph 10 of the Complaint.
11. Intervening defendants neither admit nor deny the allegations of paragraph 11 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
12. Intervening defendants deny the allegations in paragraph 12 of the Complaint.
13. Intervening defendants deny the allegations in paragraph 13 of the complaint except that intervening defendants neither admit nor deny the allegations regarding the competence and experience of plaintiffs' counsel, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
14. Intervening defendants deny the allegations in paragraph 14 of the Complaint.
15. Intervening defendants state that the University of Michigan is an entity created by the Michigan State Constitution. Intervening defendants state upon information and belief that the University of Michigan receives federal funds. Intervening defendants neither admit nor deny the remaining allegations in paragraph 15 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
16. Intervening defendants admit that the University of Michigan's Application for Undergraduate Admissions permits applicants to indicate their race. Intervening defendants deny all of the remaining allegations in paragraph 16 of the Complaint.
17. Intervening defendants neither admit nor deny the allegations of paragraph 17 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
18. Intervening defendants state upon information and belief 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. Intervening defendants deny all of the remaining allegations in paragraph 18 of the Complaint.
19. Intervening defendants state upon information and belief 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. Intervening defendants further state upon information and belief 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. Intervening defendants deny all of the remaining allegations in paragraph 19 of the Complaint.
20. Intervening defendants deny the allegations in paragraph 20 of the Complaint.
21. Intervening defendants neither admit nor deny the allegations of paragraph 21 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
22. Intervening defendants state upon information and belief that high school grades in academic courses represent the predominant factor used for determining admissions to the University of Michigan, College of Literature, Science and the Arts. Intervening defendants state upon information and belief 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. Intervening 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, intervening defendants deny the allegations in paragraph 23 of the Complaint.
24. Intervening defendants deny the allegations in paragraph 24 of the Complaint.
25. Intervening defendants neither admit nor deny the remaining allegations in the first sentence of paragraph 25 of the Complaint, lacking knowledge or information sufficient to form a belief as to the truth or falsity thereof.
26. Intervening defendants deny the allegations in paragraph 26 of the Complaint.
27. Intervening defendants state upon information and belief that the University of Michigan has a 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. Intervening defendants deny all of the remaining allegations 'in paragraph 27 of the Complaint.
RESPONSE TO PLAINTIFFS' FIRST CLAIM
28. Intervening defendants incorporate by reference their responses to the allegations of paragraphs 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, intervening 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, intervening defendants deny the allegations in paragraph 30 of the Complaint.
RESPONSE TO PLAINTIFFS' SECOND CLAIM
31. Intervening defendants incorporate by reference their responses to the allegations of paragraph 1-30 of the Complaint as set forth above.
32. Intervening defendants state that the University of Michigan is an entity created by the Michigan State Constitution. Intervening defendants state upon information and belief that the University of Michigan, which includes the College of Literature, Science and the Arts, receives federal funds. Intervening 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, intervening 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 ganted.
2. This Court lacks subject-matter jurisdiction over the Complaint because the plaintiffs lack standing.
3. Plaintiffs' claims for injunctive relief are barred by the doctrine of mootness.
4. The Regents of the University of Michigan are permitted under the Fourteenth Amendment to the United States Constitution to use race as one of many factors considered in admissions in order to remedy the present effects of past and present racial discrimination and to foster a diverse educational environment.
5. Intervening defendants state that they assert these affirmative defenses on the basis of knowledge or information presently available and in order to avoid waiver. Intervening defendants reserve the right to withdraw any of these affirmative defenses or to assert additional affirmative defenses as further information becomes available.
Wherefore, intervening 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.

¹ The individual applicants are minors who move to intervene by their parents or Guardians. respectively, Denise Patterson, Moises Martinez, Larry Crenshaw, Harry J. Williams, Patricia Swan-Brown, Karen A. McDonald, Linda A. Harris, Deanna Smith, Alice Brennan, Ivy Rene Carmichael, Sarah L. Dubose, Inger Davis, Barbara Dawson, Roy D. Harlin, Wyatt G. Harris, George C. Gipson, and Shawn R. Reynolds.

Dated: February 5, 1998 Respectfully submitted,

__________________________________
Godfrey J. Dillard P-22802
Milton R. Henry P-14884
Reginald M. Turner, Jr. P-40543
Citizens for Affirmative
   Action's Preservation
2500 Buhl Building
Detroit, MI 48226

ELAINE R. JONES
DIRECTOR-COUNSEL

__________________________________
Theodore M. Shaw
NAACP Legal Defense &
   Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, NY 10013

__________________________________
Christopher A. Hansen
Steven R. Shapiro
Deborah N. Archer
American Civil Liberties
   Union Foundation
125 Broad St.
New York, NY 10004

__________________________________
Brent E. Simmons P-28246
ACLU Fund of Michigan
217 S. Capitol Avenue
P.O. Box 13038
Lansing, MI 48901

__________________________________
Michael J. Steinberg P-43085
ACLU Fund of Michigan
1249 Washington Blvd., Suite 2910
Detroit, MI 48226

__________________________________
Patricia Mendoza
Mexican American Legal Defense &
   Educational Fund
542 S. Dearborn
Suite 750
Chicago, IL 60605

CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of February, 1998, true and correct copies of the foregoing (I) Motion to Intervene; (ii) Memorandum of Law in Support of Motion to Intervene; and (iii) Proposed Answer were served by first-class mail on:

John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2441 M Street, N.W.
Washington, DC 20037

Leonard M. Niefoff
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, Michigan 48104

Patrick J. Wright, Esq.
37781 Hollyhead
Farmington Hills, Michigan 48331

David F. Kerr, Esq.
Kirk Kirbo, 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, DC 20036

__________________________
Olatunde C.A. Johnson

Gratz briefs – Table of Contents