INTRODUCTION
Plaintiffs have sued Defendants Lee Bollinger and James Duderstadt, the current and former President of the University of Michigan, respectively, in their individual capacities, for money damages based on their roles in administering the admissions process of the University’s College of Literature, Science, and the Arts (“LS&#O38;A”). These officials are entitled to qualified immunity and should be dismissed from this lawsuit now, before they are subjected to the burdens of trial. The applicable standard is clear: “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Moreover, “because the entitlement is an immunity from suit rather than a mere defense to liability, [the Supreme Court] repeatedly ha[s] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quotations and citation omitted).
There is no question that Defendants Bollinger and Duderstadt are entitled to qualified immunity. In Regents of the University of California v. Bakke, 438 U.S. 265, 320 (1978), the Supreme Court held that a “State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” The extensive discovery that Plaintiffs have conducted on the design and operation of LS&A’s admissions system conclusively demonstrates that, throughout the period at issue in this case, the University’s admissions program has not violated any “clearly established” constitutional rights — and, instead, has conscientiously complied with Bakke. In the more than two decades since Bakke, the Supreme Court has neither reversed nor even revisited its holding that the consideration of race in admissions decisions is constitutional. The vast majority of selective colleges and universities in the country have affirmatively relied on Bakke for years, considering race as one of many factors in choosing from the pool of qualified applicants for admission. Only in the last few years have there been any legal challenges to the now widespread use of race as a factor in admissions. Most of the courts that have addressed this issue have rightly assumed that Bakke remains the controlling precedent. Only one appellate court has decided that the competitive consideration of race to achieve a diverse and vibrant academic community is unconstitutional. That was the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), a decision that no other Circuit court has followed, and that has been criticized as wrong and beyond the Fifth Circuit’s power.
Although the Court has bifurcated this case into separate “liability” and “damages” phases (see Opinion and Order, May 1, 2000, at 6; Opinion, Dec. 23, 1998, at 15), it is both appropriate and necessary for this Court to address the individual defendants’ right to qualified immunity now.2/ Under established qualified immunity doctrine, the entitlement of the individual defendants to be free from Plaintiffs’ suit for money damages should be addressed before trial on Plaintiffs’ claims for injunctive and declaratory relief begins. The benefits of qualified immunity, including protection from the distractions of litigation, are effectively lost when individual defendants are not dismissed at the earliest appropriate time.
2/ The Court has directed that the initial “liability” phase be “specifically limited to plaintiffs’ claims for injunctive and declaratory relief.” (Opinion and Order, May 1, 2000, at 6.) Accordingly, Defendants have separately renewed their motion for summary judgment on Plaintiffs’ claims for class-wide, forward-looking relief seeking to change how the University admits students to LS&A. (See Memorandum in Support of Defendants’ Renewed Motion for Summary Judgment as to Plaintiffs’ Claims for Injunctive and Declaratory Relief (hereinafter “Inj. Claims Br.”)).
The well-developed record in this case indisputably establishes that Defendants Bollinger and Duderstadt are entitled to qualified immunity in connection with their actions relating to LS&A admissions — both as the admissions process worked when Plaintiffs applied and as it works now. They cannot be said to have violated “clearly established” law. On the contrary, the University’s effort to comply with Bakke under the leadership of Defendants Bollinger and Duderstadt has been made with the good faith required by the law of qualified immunity. Plaintiffs seek to change the law as it is set forth in Bakke, but the individual defendants’ good faith attempts to implement that controlling precedent form a complete defense to Plaintiffs’ claims. The individual defendants’ motion for summary judgment should be granted and they should be dismissed from this case immediately.
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