for herself and all others
similarly situated,






       Proposed Intervening
       Defendants. __________________________________

) Civil Action # 97-75928


Plaintiff submits this Memorandum in Opposition to the Motion to Intervene submitted on behalf of 41 individuals and organizations (hereinafter collectively referred to as "applicants"). As discussed below, applicants plainly do not have a protectable legal interest in this action- a prerequisite to intervention as a matter of right under Rule 24(a). Instead, they assert generalized political and social interests that- no matter how strongly felt-do not give rise to the legally protectable interest that Rule 24(a) requires. Granting applicants' motion, moreover, will needlessly expand the scope of the lawsuit far beyond the issues in dispute between the parties, a result completely at odds with the principal of judicial economy that underlies intervention in a proper case.

The Court should also deny applicants' alternative motion for permissive intervention under Rule 24(b) because they have no legally cognizable claim or defense for which there could be a "question of law or fact in common" with the parties to this lawsuit. Granting the motion would also unduly delay and prejudice adjudication of the parties' rights in this action because of the extraneous and hypothetical issues that applicants propose to litigate.


A. Applicant are not Entitled to Intervention as a Matter of Right

Intervention as a matter of right under Rule 24(a) requires the proposed intervenors to demonstrate that all four criteria of the rule have been met: (1) that the motion is timely; (2) that the proposed intervenors have a "significant legal interest" in the subject of the pending litigation; (3) that the disposition of the action may impair or impede the proposed intervenors' ability to protect their legal interest; and (4) that the parties to the litigation cannot adequately protect the proposed intervenors' interest. See e.g., Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). In this case, applicants are unable to meet the second and third elements of the rule because they have no "significant legal interest" that could be impaired in this litigation. As to the fourth element, applicants have brought their motion to intervene at such an early and premature stage of the litigation that, even assuming they had a protectable interest, there is no basis in the record from which to conclude that such interest would be impaired or that defendants would not adequately protect that interest.

1. Applicants Lack a "Significantly Protectable Legal Interest" in this Action

The Supreme Court has determined that the Rule 24(a) requirement of an "interest relating to the property or transaction which is the subject of the action" means a "significantly protectable interest." Donaldson v. United States, 400 U.S. 517 (1971). Applicants are wrong in their contention that the courts have set a "low threshold" for requirement of a significantly protectable interest. See applicants' memorandum at 6. The Sixth Circuit repeatedly has required that the interest in the litigation be a "direct, substantial interest" that "must be 'significantly protectable.'" See e.g., Purnell v. City of Akron, 925 F.2d 941 (6th Cir. 1991); Grubbs v. Norris, 870 F.2d 343, 346 (6th Cir. 1989) ("interest must be significantly protectable"). The Sixth Circuit has also described the interest as one that must be a legally protectable interest. See e.g., Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (appropriate focus under Rule 24(a) is "whether [applicant for intervention] has a legal interest in [the] case that is substantial enough to warrant intervention as a matter of right"); Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir. 1990) ("[a]pplicants for intervention as a matter of right must have a significant legal interest in the subject matter of the litigation"); Stotts v. Memphis Fire Dept., 679 F.2d. 579, 582 (6th Cir. 1982) (intervention denied where there was no "legally protected interest"); United States v. ABC Industries, 153 F.R.D. 603, 607-08 (W.D. Mich. 1993) (denying intervention as a matter of right in CERCLA action because proposed intervenors did not have "direct, substantial, and legally protectable interest"). Since applicants' interest in this lawsuit is neither direct nor legally protectable, they are not entitled to intervention as a matter of right.

What applicants argue for, in effect, is a standard for intervention that requires only the demonstration of a political interest in the outcome of a case. The showing that applicants have a desire to preserve defendants' system of racial preference in admissions, no matter how strongly or genuinely held, is not in law or logic a showing that they have a "protectable legal interest."

One of the cases relied upon by applicants, Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990), actually illustrates why their intervention motion should be denied. In Jansen, the applicant intervenors were black firefighters who had been members of a certified class that had entered into a court-approved affirmative action program with the city of Cincinnati to eliminate discrimination in hiring and promotions in the fire department. Subsequent to entry of consent decree, several white applicants, who had been denied admission to the fire recruit class commenced suit against the city. The white applicants alleged violations of the consent decree as well as civil rights violations under 42 U.S.C. Sections 1981, 1983, and 1988.

The district court in Jansen denied the motion to intervene as a matter of right because, among other things, the black fire fighters lacked a protectable interest in the suit brought by the white applicants. In reversing, the Sixth Circuit made clear throughout its discussion of the "interest" requirement of Rule 24(a) that the black fire fighters had a sufficient legal interest for intervention as a matter of right because of their status as parties to the consent decree under challenge in the suit of the white applicants:
. . . . The proposed intervenors, present and future black applicants for employment and promotion. . . . . are parties to the consent decree challenged in this action. The consent decree governs hiring and promotion decisions in the Divisions of Fire 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 the proposed intervenors and the City when they were in the midst of an adversarial relationship. Therefore, as parties in the consent decree, the proposed intervenors have a significant legal interest in its interpretation

904 F.2d 336, 342 (emphasis in original).

In deciding that the black applicants in Jansen could intervene as a matter of right because of their "legal" interest as "parties" to the consent decree under challenge, the Sixth Circuit cited approvingly an Eleventh Circuit case that applicants in this action have also relied upon. In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492 (1lth Cir. 1987), aff'd sub nom. Martin v. Wilks, 490 U.S. 755 (1989). See Jansen, 904 F.2d. at 341-42. As in Jansen, the proposed intervenors in In re Birmingham were black applicants and employees of the city's fire department who had entered into a court-approved affirmative action program subsequently challenged in a lawsuit against the city commenced by white fire fighters. In concluding that the district court should have permitted intervention as a matter of right by the black individuals, the Eleventh Circuit noted that the applicants for intervention were "the same individuals who bad filed a class action against the city" that led to the consent decree, 833 F.2d at 1496 n. 12. See also, e.g., Baker v. City of Detroit, 504 F. Supp. 841 (E.D. Mich. 1980) (black police officers allowed to intervene in suit against city challenging court-approved affirmative action program).

Applicants in this case do not rely upon any consent decree or other contractual agreement with defendants that could give rise to a legally enforceable interest. 1 They miss the point, therefore, in their heavy reliance on cases involving intervenors who were parties to court approve consent decrees. The absence of that kind of relationship and interest is demonstrated by the result in another Sixth Circuit case, Stotts v. Memphis Fire Departmen, 679 F. 2d 579 (6th Cir. 1982). In Stotts, eleven non-minority firemen employed by the city of Memphis sought to intervene in a class action alleging that the city fire department had racially discriminatory hiring and promotion practices. The proposed intervenors sought to challenge a proposed consent decree entered into between the plaintiffs and the city. The proposed intervenors were not parties to the consent decree. The Sixth Circuit affirmed denial of the motion to intervene in part on the ground that the non-minorities did not have a legally protectable interest in the class action suit:
. . . . [T]he 1980 Decree does not harm or adversely affect any legally protected interests of non-minorities. Id. There is no legally cognizable interest in promotional expectations presumptively could only occur as the result of discriminatory employment practices.
679 F.2d at 582 (emphasis added). See also Youngblood v. Dalzell, 123 F.R.D. 564 (S.D. Ohio 1999) (non-minorities did not have a legally protected interest in promotions which could only be made pursuant to to discriminatory employment practices); Youngblood v. Dalzell, 625 F. Supp. 30 (S.D. Ohio 1985) (same), aff'd, 804 F.2d 360 (6th Cir. 1986), cert. denied, 480 U.S. 935 (1987).

The school desegregation cases relied upon by applicants also offer no analogy to the kind of interest asserted by applicants here. Those cases involve claims of existing violations of intervenor's legal arising from de jure segregation of schools attended by the proposed intervenors or their children. In Bradley v. Milliken, 828 F.2d 1186 (6th Cir. 1987), which actually denied intervention, the Sixth Circuit noted that "it has generally been accepted that students, parents of children in the school system and parent organizations have a sufficient interest in eliminating segregation in the schools to satisfy" the interest requirement of Rule 24(a)(2). 828 F.2d at 1192 (emphasis added): see also Hatton v. County Board of Education, 422 F.2d 457 (6th Cir. 1970) (intervenors in county school desegregation case were residents of county and parents of children enrolled in schools that were subject of de jure segregation claims). Here, in contrast, applicants merely argue for maintenance of the status quo, the same objective as defendants. The distinction is important. A "legally protectable" can easily be discerned from a challenge to an existing illegal condition as it applies to applicants (as in the school desegregation cases). Applicants' motion for intervention does not present such a circumstance, and they offer no other legally cognizable interest to be protected through intervention. See also, e.g., United States v. Mississippi, 958 F.2d 112, 115 (5th Cir. 1992) ("policy concerns of proposed intervenors opposed to school desegregation order were not sufficient for legal interest required under Rule 24(a)(2)); United States v. Perry County Board of Education, 567 F.2d 277, 279-80 (5th Cir. 1978) (same). 2

Applicants' suggestion that they "need not have" a specific legal or equitable interest," applicants' memorandum at 6, is not borne out by the cases cited for that proposition. Purnell v. City of Akron, 925 F.2d 941 (6th Cir. 1991), concerned motion for intervention in a federal wrongful death action by two individuals who claimed to be illegitimate children of the decedent. The two children also had pending a separate state court action to determine paternity and heirship under Ohio law. At the time the children moved to intervene as a matter of right in the wrongful death action (and at the time the denial of the motion was appealed), the paternity and heirship issues had not been resolved in the state court proceeding.

In reviewing the district court's denial of the motion to intervene, the Sixth Circuit noted the definitions of "litigable interest" under 24(a)(2), including the Sixth Circuit's prior rulings that there must be a "direct, substantial interest" in the litigation that must be "significantly protectable." 925 F.2d at 947 (quoting Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir. 1990)). 3 The Purnell case posed two questions regarding whether the children seeking intervention had a protectable interest in the wrongful death action. The court noted fast that "[w]hether the . . . children claim an interest relating to the property or transaction that is the subject of [the wrongful death action] depends in large part on the right of an illegitimate child to sue for the wrongful death of his or her biological father. If illegitimate children have no such rights, then the children would have no basis to intervene under Rule 24(a)(2)." 925 F.2d at 941 (emphasis added). After concluding that there was such a right of recovery for illegitimate children under Ohio law, the remaining question was whether the children had a protectable interest prior to any adjudication of their paternity by the decedent. The Court concluded that the children had an "indirect" interest that was "contingent" on proof on their paternity by decedent:
. . . . Although the [children] have a legally protectable interest related to the transaction at issue if they are in fact [the decedent's] children, that interest may be classified as indirect or contingent until paternity is proved.
925 F.2d at 947 (emphasis in original). The Court held therefore, that the requirement of "interest" was met sufficiently to hold in abeyance the motion to intervene until the paternity issue was resolved. Id. at 950, 954 ("circumstances . . . adequately satisfy the requirements of Rule 24(a)(2) and therefore justify holding in abeyance the motion to intervene until the paternity issue is resolved one way or the other" . . . "[the children] claim a sufficient interest to justify holding the motion for intervention in abeyance until the paternity issue is resolved"). 4

Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997), also fails to support applicants' motion for intervention in this action. Miller concerned a legal challenge to Michigan legislation that extended to labor unions certain political campaign contribution restrictions that had originally applied only to corporations. The State of Michigan appealed a district court order enjoining enforcement of the law, and the Michigan Chamber of Commerce petitioned to intervene as a defendant in order to argue for the validity of the legislation. In reversing the district court's denial of the motion to intervene as a matter of right, the Sixth Court concluded that the intervention issue was a "close one" that "in view of the facts unique to this particular case" justified holding that the Chamber had a "substantial legal interest" in the litigation. 103 F.3d at 1247. The Sixth Circuit's holding was narrow and explicitly rested on four facts particular to the proposed intervenor which the court found "compelling": (1) the Chamber was a vital participant in the political process that resulted in the legislation under review; (2) it was a repeat player in the litigation concerning the legislation; (3) it was a significant party adverse to the challenging union in the political process surrounding regulation under the legislation; and (4) it was an entity regulated by at least three of the four statutory provisions challenged by the plaintiff unions. 103 F.3d at 1246-47.

The Miller court cited to a number of cases from other jurisdictions in which intervention was allowed for organizations that had played, as the Chamber of Commerce had, a direct role in the legislative or regulatory process that had led to the legislation or administrative rule at issue. 103 F.3d at 1245-46 (citing Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392 (9th Cir. 1995); Sagebrush Rebellion, Inc. v. Watt, 713 F-2d 525 (9th Cir. 1983)). On the other hand Miller distinguished and stated its agreement with the result in an Eleventh Circuit case denying intervention to a labor union organization not "shown to have been part of the legislative process" at issue:
The court denied the application, correctly in our view, because the union lacked a "direct, substantial, legally protectable interest" inasmuch as it was not a "real party in interest, in the transaction which is the subject of the proceeding." Id. The court went on to state that the "sole basis of [the union's] is general concern . . . shared with all unions and all citizens concerned about the ramifications of direct corporate expenditures." Id. The court denied the application, holding that the it "interest is so generalized it will not support a. claim for intervention as of right." Id.
Michigan State AFL-CIO v. Miller, 103 F.3d. 1240, 1246 (6th Cir. 1997) (citing and quoting Athens Lumber Co. v. Federal Election Comm'n, 690 F.2d. 1364 (11th Cir. 1982).

Applicants here have not made a showing remotely comparable to that of the Chamber of Commerce in Miller. The 41 individual applicants make no allegations that their interest in defendants' policies has a historical basis or relationship different from that of other citizens with a generalized, political interest in issues of the suit. Instead, applicants rely on the status of these individuals in several amorphous "general groups" for the legal sufficiency of their intervention claims. See applicant's memorandum at 8-12. If so little were required to establish entitlement to intervention as a matter of right, there would effectively be no bar to intervention by any citizen in all manner of lawsuits that touch upon public issues. Miller certainly does not stand for that proposition, which finds no support in other Sixth Circuit or federal case law.

Although the three organizational applicants assert an interest similar to that of the Chamber of Commerce in Miller, a careful reading of the allegations 5 in the applicants' motion and Memorandum demonstrates the contrary. None of the groups have. established any role in the formulation or implementation of defendants' admissions policies that are challenged in this action. Instead, it is clear that these groups have come together seeking intervention in reaction to the lawsuit filed by Plaintiff. "Law Student for Affirmative Action" ("LSAA") was formed in January 1998, at least a month after commencement of this action. See applicants' memorandum at 14; motion to intervene at ¶42, p. 6. "United for Equality and Affirmative Action" ("UEAA") was also apparently formed in response to the two lawsuits pending against defendants. See applicants' memorandum at 13, motion at ¶44, p. 6 (UEAA "founded to provide a democratic forum for the conduct of this lawsuit . . . ."). The third organizational applicant, "The Coalition to Defend Affirmative Action by Any Means Necessary" ("BAMN") alleges its founding in 1995 was "in response" to the decision of the California Board of Regents to "ban affirmative action" in that state. Id. See applicant's memorandum at 13; motion at ¶43, p. 6. The Michigan chapter of BAMN alleges a "student activism" role in "defense of affirmative action on the University of Michigan campus throughout the fall of 1997 and the winter of 1998." See applicants' memorandum at 13, motion at ¶43, p. 6. These allegation alone are sufficient in demonstrating the essential dissimilarity between the circumstances of the role played by the Chamber of Commerce in the adoption of the legislation under challenge in Miller and the reactive role of the applicants here.

Lacking a protectable legal interest, applicants loosely set forth a litany of other "interests" or "concerns" that they wish to litigate in this action. Applicants want to expand the scope of this lawsuit well beyond anything put in issue by the complaint and answer. Their memorandum is breathtaking in describing the scope of extraneous issues that would entangle the Court, parties, and lawsuit if intervention is allowed. Instead of a concrete dispute between the actual litigants, applicants urge the Court to make the case a forum for expensive litigation concerning a litany of generalized political and social issues. 6 Among other things, applicants inexplicably offer to make sexual discrimination an issue in the case. See applicants' memorandum at 20-21. They also announce an intent to challenge the validity and legality of the Law School Admission Test (LSAT) although nothing in the complaint or answer necessitates litigation of that issue. Id. at 21.

2. Applicants Cannot Demonstrate "Impairment"

Applicants' arguments about "impairment" of interest are as illusory as their assertions regarding a legal interest in the case. Because they have no legal interest, it follows that they cannot demonstrate "impairment" of such an interest. When applicants argue about "impairment" they are arguing against some future, hypothetical admissions policy that applicants believe would be objectionable. In effect, applicants offer the parties and the Court the opportunity to try two cases instead of one, the first being plaintiff's challenge to defendants' past and present admissions policies, and the second consisting of applicants' complaint against a hypothetical future policy. The offer should be rejected because the additional timed, expenses, and protracted litigation devoted to this second issue - solely attributable to the intervention - would all be for naught. Until and unless defendants implement or announce implementation of a specific admissions policy that applicants find objectionable, there is to justiciable issue for this Court to decide about such a policy. 7

Moreover, contrary to applicants corrections about stare decisis, no amount of success by plaintiffs in this lawsuit precludes or even hinders applicants from mounting a legal challenge to some future, actual admissions policy that applicants believe to be unlawful. The doctrine of stare decisis does not mean, as applicants imply, that a successful challenge to defendants' existing policies impairs or impacts a challenge to a subsequent and different policy. 8 Moreover, the United States Supreme Court made clear in Martin v. Wilks, 490 U.S. 755 (1989), that individuals not parties to a discrimination case or any consent decree entered in that case cannot be precluded from litigating in a subsequent case their rights as affected by the consent decree.

3. Applicants Cannot Show Inadequate Representation; the Motion is Premature

Even assuming that applicants could demonstrate a protectable legal interest that may be impaired in this lawsuit they have not met their burden of demonstrating inadequate representation of their interests by defendants. A fundamental problem with applicants' motion is that it has been brought at such an early stage of the litigation that the allegations made in its support are based on speculation and guess. That the Sixth Circuit has said that the burden to demonstrate inadequate representation is "minimal" does not mean that applicants can meet it with an entirely hypothetical showing.

The Sixth Circuit case cited by applicants do not support their argument that they have met the burden here. In Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997), for example, the court stated that "it may be enough to show that the existing party who purports to seek the same outcome will not make all of intervenor's arguments." Id. at 1247. Applicants here merely guess that they will make arguments different from the defendants. Moreover, the facts in Miller demonstrated adversity and inadequacy of representation in that the party to whom the intervenor was to look for representation, the state of Michigan, had already failed to appeal a ruling adverse to the intervenor. Id. at 1248 ("The State of Michigan has already demonstrated that it will not adequately represent and protect the interests held by the Chamber [intervenor]").

Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990), also relied upon by applicants, only further demonstrates that they cannot show inadequacy of representation. The proposed intervenors in Jansen, black firefighter seeking to uphold the validity of a consent decree against a challenge by white firefighters were already in litigation concerning the consent decree against the party (the city) to whom they were to look for adequate representation. Id. at 343 ("This fact alone weighs heavily m favor of finding that the City inadequately represents the interests of the proposed intervenors"). The city had also already demonstrated that it would not rely on a provision in the consent decree negotiated by the city and the proposed intervenors, so that the court could conclude that "the City and the proposed intervenors have divergent views regarding the proper interpretation of the consent decree." Id.

Several Sixth Circuit cases demonstrate the insufficiency of applicants' showing on inadequacy of representation. In Hatton v. County Board of Education, 422 F.2d 457 (6th Cir. 1970), the Sixth Circuit determined that parents of the students in the county's segregated school district had a protectable interest in a desegregation suit against the county, but denied the motion to intervene because of a failure to show inadequate representation:
There is nothing in petitioner's motion papers to indicate that their interests as residents of Maury County and parents of children attending the public schools are not being adequately represented by the present defendants. The record indicates that the defendants have advanced every reasonable defense to this action, and petitioners have made no allegation of collusion, bad faith, or gross negligence on the part of the Board of Education in defending the suit.
Id. at 461.

In Bradley v. Milliken, 828 F.2d 1186 (6th Cir. 1997), the Sixth Circuit considered a motion to intervene during the remedial stage of a school desegregation case. The proposed intervenors and the class representatives had different views on modifications to the remedial aspects of the consent decree. The court rejected several arguments urged by the proposed intervenors on the issue of inadequacy of representation:
. . . . A mere disagreement over litigation strategy or individual aspects of a remediation plan does not, in and of itself, establish inadequacy of representation. . . .

. . . .

. . . . It appears evident to us that the present class representatives and proposed intervenors share the same ultimate objective in a unitary school district. Although the litigation strategy has altered, this objective has not been abandoned by current counsel. We cannot say at this point in the litigation and upon this record that ;the agreed-upon modifications in [the consent decree] so harm members of the plaintiff class and the proposed intervenors that the class representatives have failed to fulfill their duty. On the basis of the record before us, we simply cannot find that such differences of opinion lead to a conclusion that representation has been inadequate to protect the interests of the proposed intervenors.

828 F.2d at 1192-92 (emphasis added) (citations omitted).

In Stotts v. Memphis Fire Department, 679 F.2d 579 (6th Cir. 1982), the Sixth Circuit affirmed denial of a motion for intervention by non-minority who sought to challenge a consent decree entered into between minority firefighters and the city. In rejecting the claim that the city could not adequately represent the interests of the non-minorities, the Court stated:
The City, an existing party to the litigation, protected the legally interest of non-minorities. At the outset of the litigation, the objective of the City was to refute the allegations of discrimination and maintain the status quo. Maintenance of the status quo was consistent with the objectives and the protection of the legally protected interests of the non-minorities.
Id. at 579; see also, e.g., Hopwood v. Texas, 21 F.3d 603, 605 (6th Cir. 1994) (denying motion for intervention on ground that proposed intervenors had not shown that their interests would not be adequately represented by governmental entity and noting that "where the party whose representation is said to be inadequate is a governmental agency, a much strong showing of inadequacy is required"); 7C C. Wright & A. Miller, Federal Practice and Procedure, Section 1909, at 333-339 (1986) (also noting that greater showing on inadequacy of representation is required when party said to be inadequate is a governmental agency). 9

B. The Court Should Not Grant Permissive Intervention under Rule 24(b)

Applicants alternatively seek an order allowing permissive intervention under Rule24(b). Permissive intervention in this case requires that applicants' "claim or defense and the main action have a question of law or fact in common." Rule 24(b). Whether to grant or deny permissive intervention is a matter of committed to the sound discretion of the court, which should consider whether the intervention will "unduly" delay or prejudice the adjudication of the rights of the original parties." Id; see also, e.g., Bradley v. Milliken, 828 F.2d 1186, 1193-94 (6th Cir. 1987); Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290 (6th Cir. 1983); Afro American Patrolmen's League v. Duck, 503 F.2d 294 (6th Cir. 1974). This Court should deny applicants' motion in this case for all the reasons contemplated by Rule 24(b). As discussed at length above, applicants have no cognizable claim or defense that presents a question of law or fact in common with the original parties. Moreover, allowing intervention will surely complicate, delay, and prejudice adjudication of this case because applicants desire to expand the subject matter of the litigation well beyond the legal and fact issues raised by plaintiff's complaint and defendants' answer: As noted in the discussion under Rule 24(a), applicants effectively seek to try both this case and the one after it: they desire to defend the defendants' current admissions policies by litigating what applicants believe-in the exercise of rampant speculation-in will be the future admissions policies and practice of defendants. Applicants have neither the need nor the right to litigate such issues in this case or at this time. Neither the parties nor the Court should be burdened with the extraneous and hypothetical issues presented by applicants' motion. 10


For all of the foregoing reasons, applicants have failed to meet their burden of proving entitlement to intervention as a matter of right under Rule 24(a) or permissive intervention under Rule 24(b). Plaintiff respectfully requests therefore that the Court deny the applicants' motion.


Kerry L. Morgan
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180-6303

David F. Herr
Kirk O. Kolbo
Maslon, Edelman, Borman & Brand, LLP
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402

Michael E. Rosman
Michael P. McDonald
Hans F. Bader
1233 20th Street, NW,
Suite 300
Washington, D.C. 20036



1  Applicants weakly suggest that the "Michigan Mandates" of defendants is similar to a consent decree incorporating an affirmative action plan, as in Jansen. See applicants' memorandum at 11 n.15. The proposition is untenable, even if the Mandate was adopted in part due to the influence or pressure of others. Neither defendants nor applicants have shown that the Michigan Mandate creates legal rights or obligations. There is no court decree incorporating the terms of the Mandate or any of defendants' racial preferences in admissions, and the Mandate is not a contract to which there are signatories with enforceable contractual rights.

2  Applicants' argument that defendants' present policies are defensible on the basis of Justice Powell's concurring opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), is not an argument that applicants have a "legally protectable interest" in the preservation of those policies. What defendants are allegedly permitted to do is not the same as what they are required to do. See e.g. NAACP v. Detroit Police Officers Ass'n, 821 F.2d 328, 331 (6th Cir. 1987) ("[t]he constitutional and social polices that permit affirmative action do not mandate it"); Austin Black Contractors Ass'n v. City of Austin, 78 F.3d 185, 186 (5th Cir. 1996) ("we join the numerous other circuits that have previously determined that the Fourteenth Amendment does not require affirmative action") citing NAACP v. Detroit Police Officers Ass'n 821 F.2d at 331; Coalition for Economic Equity v. Wilson, 122 F.3d 692, 709 (9th Cir.) ("Fourteenth Amendment, lest we lose sight of the forest from the trees, does not require what it barely permits") (upholding state constitutional provision barring affirmative action permitted by federal law), cert. denied, 118 S. Ct. 397 (1997)): Associated General Contractors v. San Francisco Unified School District, 616 F.2d 1381, 1388 (9th Cir.) ("even the Bakke dissenters admitted that a school 'is generally free, as far as the Constitution is concerned, to adjure granting any racial preferences in its admissions program'"), cert. denied, 449 U.S. 1061 (1980).

3  As noted in the earlier discussion of the Sixth Circuit's definition of "interest," the Jansen Court also stated that "[a]pplicants for intervention as a matter of right must have a significant legal interest in the subject matter of the litigation." 904 F.2d at 341 (emphasis added).

4  For the same reasons, the court concluded that the district court should have "granted permissive intervention contingent upon resolution of the paternity determination").

5  Applicants have placed nothing in the record that could constitute evidence that any of them had a role in any process leading to the policies of defendants that are under challenge. All that exist are unsupported allegations and argument. The two documents attached to the motion and memorandum - a New York University Law Review article and the affidavit of Steven Conn - have no bearing on this issue.

6  A few examples from applicants' memorandum: "[All applicants share an interest the generalized, national effects of an adverse decision in what is a generalized, national attack on affirmative action. This case is about the ongoing struggle for equality in this country." Memorandum at 14-15. "They [applicants] also intend to present defense arising out of their interest in diversity in the broadest social terms." Id. at 19. "Simple justice requires that applicants be granted a voice in this proceeding. Id. at 15. The lawsuit "will decide what they [applicants] receive from society, and what they give back." Id. at 22.

7  Applicants cite, for example, to reported drops in minority admissions at the University of California at Berkeley and the University of Texas, and to literature on the performance of minorities on standardized tests. How can applicants divine that plaintiff's success in this lawsuit will result in adoption of a particular admissions system employed by another institution, or that defendants will even continue to use standardized tests in considering admissions? They merely speculate on these points.

8  In considering the Sixth Circuit's recognition in Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990), of the possible adverse effects of stare decisis as factor under Rule 24(a), it remains important to note that Jansen concerned a claim by the intervenors that the same consent decree they had negotiated with the city had become the subject of litigation to which the proposed intervenors would not be a party unless the intervention was allowed. Thus, the proposed intervenors were faced with the possibility that a court ruling on a consent decree they had negotiated would have stare decisis consequences in, for example, any application to modify the consent order in their case without any participation by them. Applicants show no such relationship between Defendants' present admissions policies and some hypothetical, future admissions policies that defendants may implement.

9  The "fuller and more vigorous set of defenses based on discrimination" that applicants plan to raise include a number of the general political and social complaints that are not an appropriate basis for granting intervention in any event, e.g., the defense of "anti-sexist" components. See applicants' memorandum at 19-20.

As to applicants' fear that defendants will not cite prior racial discrimination at the law school as a compelling reason justifying race preferences in admissions, it is important to note that applicants' demonstration of such discrimination is immaterial unless (1) the past discrimination has had continuing effects, and (2) defendants in fact relied upon those continuing from its own prior discrimination as the reason for the racially discriminatory remedy. See, e.g., Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894, 1902 n.4, 1903 (1996) ("To be a compelling interest, the State must show that the alleged objective was the legislature's 'actual purpose' for the discriminatory classification"; rejecting remedial purpose for discrimination because it "did not actually precipitate the use of race in the redistricting plan"); Contractors Ass'n Eastern Pennsylvania, Inc. v. City of Philadelphia, 91 F.3d 586, 597 (3rd. Cir. 1996), cert. denied, 117 S. Ct. 953 (1997) (in action challenging city ordinance creating subcontracting set asides, Court holds that "[t]he party challenging the race-based preferences can succeed by showing . . . that the subjective intent of the legislative body was not to remedy race discrimination in which the municipality played a role"); Podberesky v. Kirwan, 956 F.2d 52, 56 n.4 (4th Cir. 1992) (race based scholarship could not be justified on diversity grounds where "it does not appear that [University] established the [scholarship] with this goal in mind."); Davis v. Halpern, 768 F. Supp. 968, 980 (E.D.N.Y. 1991) (in challenge by rejected white applicant to law school's consideration of race in admissions process, Court denies summary judgment to defendants where law school's affirmative action policy states that one of its goals was a more ("diversified" and "representative" bar); Lutheran Church-Missouri Synod v. FCC, No 97-1116, 1998 WL 168712 (D.C. Cir. April 14, 1998) (Justice department's identification of "compelling interests" supporting FCC affirmative action program held irrelevant) ("[a]s the independent agency [FCC] which promulgated the regulation in question, its view of the government interest it was protecting must be accepted").

10  Denial of the motion for intervention under 24(a) and (b) does not, of course, preclude the Court from permitting the applicants or others to participate in the case at some stage through filing of briefs as amicus curiae. See, e.g., Bradley v. Milliken, 620 F.2d 1141, 1142 (6th Cir. 1980); Brewer v. Republic Steel Corp., 513 F.2d 1222, 1225 (6th Cir. 1975).

Grutter briefs – Table of Contents

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