Reply Memorandum of Proposed Intervening Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
__________________________________
BARBARA GRUTTER
for herself and all others
similarly situated,
             Plaintiff,
      v.

LEE BOLLINGER, JEFFREY
LEHMAN, DENNIS SHEILDS,
REGENTS OF THE UNIVERSITY
OF MICHIGAN, AND THE
UNIVERSITY OF MICHIGAN LAW
SCHOOL

             Defendants.

and

KIMBERLY JAMES, FARAH
MONGEAU, JEANETTE HASLETT,
RAYMOND MICHAEL WHITLOW,
SHABATAYAH ANDRICH, DENA
FERNANDEZ, SHALAMAREL
KEVIN KILLOUGH, DIEGO BERNAL,
JULIE FRY, JESSICA CURTIN,
JAMES HUANG, HEATHER
BERGMAN, ASHWANA CARLISLE,
RONALD CRUZ, NORA CECILIA
MELENDEZ, IRAMI
OSEI-FRIMPONG, GERALD RAMOS,
ARTURO VASQUEZ, EDWARD
VASQUEZ, VINCENT KUKUA, HOKU
JEFFREY, KARLITA STEPHENS, by
her Next Friend KARLA
STEPHENS-DAWSON, YOLANDA
GIBSON, by her Next Friend MARY
GIBSON, ERIKA DOWDELL, by her
Next Friend HERBERT DOWDELL,
JR., AGNES ALEOBUA, by her Next
Friend PAUL ALEOBUA, CASSANDRA
YOUNG, by her Next Friend YOLANDA
J. KING, JAASI MUNANKA,
JODI-MARIE MASLEY, SHANNON
EWING, JULIE KEROUAC, KEVIN
PIMENTEL, BERNARD COOPER,
NORBERTO SALINAS, SCOTT
ROWEKAMP, RUSS ABRUTYN,
JASMINE ABDEL-KHALIK, MEERA
DEO, WINIFRED KA0, MELISA
RESCH, OSCAR DE LA TORRE,
CAROL SCARLETT, UNITED FOR
EQUALITY AND AFFIRMATIVE
ACTION, THE COALITION TO
DEFEND AFFIRMATIVE ACTION BY
ANY MEANS NECESSARY, and
LAW STUDENTS FOR AFFIRMATIVE
ACTION,

Proposed Intervening Defendants
__________________________________

Civil Action # 97-75928
BERNARD A. FRIEDMAN
MAGISTRATE JUDGE MORGAN

Reply Memorandum of
Proposed Intervening
Defendants

INTRODUCTION
Kimberly James and her forty fellow-applicants have detailed numerous interests in this case arising out of the long-standing denial of educational equality to black, other minority, and women students ad out of the ameliorating effort of affirmative action on racism and sexism in education. To show why they must represent those interests themselves, they have explicated at length the differences--and even conflicts--between their position and the University's.
Plaintiff has not met applicants' claims. Instead, she has retreated behind the false, facile charge that they assert only political concerns footnoting their memorandum's broadest persuasive language while ignoring the interests it enumerates. Neither that baseless characterization, nor plaintiff's misplaced emphasis on the scope of the case, nor the host of phantom requirements for intervention she invokes provides a basis for denying intervention in this case.
ARGUMENT
I. Applicants' interest in this case are direct, substantial, and protectable.
Applicants' interests include those in attending the Law School, in being treated fairly by an admissions system that does not amplify discrimination, in not attending an increasingly segregated school, and in not attending a school with an increasingly racist and sexist environment. Mem. At. 8-12. ¹ No precise formula governs the sufficiency of intervenors' interests, since the inquiry is "necessarily fact-specific", but applicants' interests are clearly adequate by any measure grounded in existing precedent. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (CA 6 1996).
Plaintiff avoids the facts on this "necessarily fact-specific" question. Instead she offers a legal analysis which fancifully insinuates that this circuit has required an interest tantamount to both standing and a cause of action (or a "legally enforceable interest"). Opp. At. 5. No Sixth Circuit case supports that proposition--not even for intervening plaintiffs, much less defendants.
The cases cited by plaintiff that address the specter she raises do so only to shoo it away. For example, in Michigan AFL-CIO, the court observed that
This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right. We have, for example, noted that an intervenor need not have the same standing necessary to initiate a lawsuit, and cited with approval decisions of other courts "reject[ing] the notion that Rule 24(a)(2) requires a specific legal equitable interest."
103 F.3d at 1245 (citations omitted). The court found that the intervening Chamber of Commerce had a sufficient interest in the statewide legislation it sought to defend. ²
In her attempt to conjure up supplementary requirements, plaintiff also misreads Purnell v. City of Akron, 925 F.2d 941 (CA 6 1991), which involved intervention by illegitimate children of a male decedent into an existing wrongful death action. Suggesting that applicants' interest here turns on their right to sue the University, she cites a passage stating that the children's interest "depends in large part on the right of an illegitimate child to sue for the wrongful death of his or her biological father." Opp. At 8, Purnell, 925 F.2d at 945-946. The analogy is illusory. In Purnell, absent the right to commence their own case, the applicants would have been unaffected by the existing one: regardless of its outcome, they would have received nothing, and their participation would have been senseless. Here, in contrast, applicants will be deeply affected by the outcome.
Further, the Purnell applicants sought to intervene as plaintiffs, not as defendants, making relevant the existence of an affirmative claim. Even so, the court did not equate standing with the right to intervene: "[c]ontrary to Appellee's argument, a party seeking to intervene need not possess the standing necessary to initiate a lawsuit." Purnell, 925 F.2d at 948 (citations omitted).
Plaintiff also commits errors regarding the desegregation cases she cites, particularly Bradley v. Milliken, 828 F.2d 1186 (CA 6 1987). She imagines that desegregation intervenors had a sufficient interest because they made "claims of existing violations of intervenor's (sic) rights arising from de jure segregation....," while applicants here do not because they seek to maintain the status quo. Opp. At 6-7. On the contrary, there was no de jure segregation in the Michigan schools in Bradley, which involved the status of measures to offset discrimination, just as this case does. And if indeed applicants seek to maintain the status quo, so too did the Bradley applicants. ³
Plaintiff's conclusions about the numerous affirmative action challenges in which minority beneficiaries have intervened also vanish in the light of day. In cases like Jansen v. City of Cincinnati, 904 F.2d 336 (CA 6 1990), she argues, previously litigated consent decrees, absent here, gave intervenors a "legally enforceable interest" in the challenged programs. Opp. At 5. Plaintiff mentions only employment cases--not education cases involving no court decrees. Mem. At 8. And the cases she selects, while naturally taking account of extant formal arrangements, nowhere state that such arrangements are necessary. ⁴
In brief, applicants have met the actual demands of the Rule: plaintiff cannot will away their articulated interests through avoidance of their substance and incantation of the word "political". ⁵ Those interests remain at least as strong as those of the intervenors in Michigan AFL-CIO and the other cases cited. Indeed, if there was ever any doubt about their sufficiency, plaintiff's silence has put it to rest.
II. Applicants have demonstrated sufficient impairment of their interests.
Plaintiff perceives an unreal and unusual requirement for this prong of the test as well: the requirement of known litigation outcomes. She maintains that applicants cannot show that their interests will be impaired absent intervention because they are speculating about "some future, hypothetical admissions policy" which they will later be able to challenge. Opp. At 13. The purpose of the Rule is to provide interested persons with a means of helping to shape an outcome without the delay, waste, and practical harms occasioned by repetitious litigation. Since the outcome is never known, the courts have minimized the showing required for this prong. See, e.g., Purnell, 925 F.2d at 947. Applicants' interests lie in the future of affirmative action as a component in the Law School's admission system. One need not consult a soothsayer to recognize that in a case seeking the dismantlement of affirmative action, one possible outcome is that outcome.
III. Applicants have made a sufficient claim of inadequate representation.
Plaintiff turns the Rule's timeliness requirement on its head by suggesting that it is too early for applicants to claim that their interests may be inadequately represented by the University. But this prong of the test also requires only a "minimal" showing--for example, some difference in interests or approach. Trbovich v. United Mine Workers, 404 US 528, 538 n10 (1972); see also, e.g., Michigan AFL-CIO, 103 F.3d at 1247. Applicants set forth numerous such differences and even some conflicts; plaintiff utterly fails to address them. Mem. At 17-22. ⁶
IV. Applicants have the right to present their claims and evidence.
Plaintiff complains that applicants will expand the issues. Opp. At.1, 12, 19. As far as permissive intervention is concerned, all the issues applicants seek to develop are indispensable to evaluating the fairness and legality of the Law School's admissions system. Therefore, their participation will not "unduly delay or prejudice" the determination of existing parties' rights. Indeed, to streamline a case of such magnitude and complexity would impair the Court's ability to evaluate the questions raised by plaintiff. And it would denigrate the interests, right, and concerns not only of the forty-one applicants, but also of those whom they represent: those who favor educational equality and those who stand to lose everything it yields and entails if plaintiff prevails.
Expansion of the scope of the case is irrelevant to intervention as of right. The judicial economy interests behind the Rule are those of the judicial system as a whole, and are not served by maximally streamlining every case.⁷ Once intervenors satisfy the test--which includes no discrete "judicial economy" prong--they have the rights of parties, including the right to develop issues deemed relevant. See, e.g., Linton v. Commissioner of Health and Environment, 973 F.2d 1311, 1319 (CA 6 1992) (overruling denial of intervention as of right where trial court expressed concern that intervenors would add a major issue to case); In Re Sierra Club, 945 F.2d 776, 778-779 (CA 4 1991) (overruling denial of intervention as of right and noting that trial court's consideration of "judicial economy" was improper). This is no case for false economies.
CONCLUSION
Plaintiff, claiming "discrimination", initiated a case that could severely degrade the equality of the education available to applicants and other highly qualified minority students--or eliminate their educational opportunity altogether. Her attempt to exclude them from these proceedings runs against any notion of justice. It also runs against the law. Accordingly, applicants ask that their motion be granted.
_____________________________________________________________________
¹   Throughout this reply, applicants' memorandum will be abbreviated as "Mem." and plaintiff's memorandum in opposition will be abbeviated as "Opp."
2   The court emphasized the Chamber's involvement in the adoption of the law, reasoning that otherwise it would have had no more interest than the general Michigan public. Plaintiff, unable to imply that the Chamber had any "legally enforceable interest" in the law, attempts to convert the court's emphasis into another novel requirement legislative lobbying. She then suggests that applicants have based their claim exclusively on activism other than lobbying. Opp at 9-12. Both points are spurious. First, applicants, as prospective or current students at the Law School, have inherent, direct, and particularized interests in its affirmative action program which are not shared by the population at large--unlike the Chamber. Second, they have presented their activism as an element in--not the cornerstone of--their claims. They have deepened that element since filing their motion by continuing to engage in pro-affirmative action activities, including the circulation of a petition supporting their participation here which has been endorsed by the Law School Student Senate and the Michigan Student Assembly.
3   The Bradley applicants--to condense a factually intricate scenario--sought the preservation of existing district court jurisdiction over various desegregation policies. Bradley, 828 F.2d at 1188, 1191. The court questioned whether the applicants' interest in one school matched the scope of the citywide case, but nevertheless assumed they had met the requirement. Bradley, 828 F.2d at 1192.
4   Plaintiff also introduces the red herring of denials of intervention to white applicants claiming "discrimination" in affirmative action cases in which previous findings of racial discrimination had given rise to a presumption that any interest on the applicants' part was an interest in discriminatory--i.e., illegal--practices. See, e.g., Stotts v. Memphis Fire Department, 679 F.2d 579 (CA 6 1982). There is no such finding or presumption here.
5   That this case inherently involves matters of public interest favors applicants' intervention. See, e.g., Herdman v. Town of Angelica, 163 F.R.D. 180, 187 (WD NY 1995) (quoting Diamond v. Charles, 476 U.S. 54 (1986)).
6   Plaintiff also suggests that this court should apply the doctrine of parens patriae-the presumption that the University, as a state entity, will adequately represent the interests of state citizens. But the Sixth Circuit has not adopted that doctrine, as the cited cases involving state entities make clear. In any event, many of applicants are not Michigan citizens, and all of applicants have met the heightened requirement imposed by those circuits which do apply the presumption
7   Just as plaintiff's requirement of known outcomes would render the Rule void, so would the streamlining requirement she attempts to summon here: every intervention lengthens the discovery and trial processes.

Dated:   March 26, 1998

By Attorneys for Proposed
Intervening Defendants,
Scheff and Washington, P.C.
By:   ____________________________
        Miranda K.S. Massie (P-56564)
By:    _____________________________
         Eileen R. Scheff (P-27914)
By:    _____________________________
        George B. Washington (P-26201)

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