I.  THE PROPOSED CLASS SATISFIES THE REQUIREMENTS ESTABLISHED BY FEDERAL RULE OF CIVIL PROCEDURE 23
A lawsuit may be certified as a class action if the proposed class meets all of the requirements of Rule 23(a) and fits within one of the subcategories of Rule 23(b). Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976), cert. denied, 429 U.S. 870 (1976); Bromley v. Michigan Education Ass'n., 178 F.R.D. 148, 161 (E.D.Mich. 1998). Class certification is appropriate in this case under any "rigorous analysis" of the Rule 23 requirements. Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998), cert. denied, 118 S. Ct. 2312 (1998).

A.  The Proposed Class Meets the Requirements of Rule 23(a)

Rule 23(a) contains four prerequisites that must be satisfied for a lawsuit to proceed as a class action:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members of the class is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

All four elements are met here, as discussed in detail below.

1.  Numerosity

The numerosity requirement of Rule 23(a)(1) is met when plaintiffs demonstrate the "impracticability" of joinder; the rule does not require "impossibility." Little Caesar Enterprises, Inc. v. Smith, 172 F.R.D. 236, 242 (E.D. Mich. 1997); 1 H. NEWBERG & A. CONTE, NEWBERG ON CLASS ACTIONS, § 3.03 (3rd ed. 1992) (hereinafter "NEWBERG"). Plaintiffs can satisfactorily demonstrate that the number of potential class members is too large for joinder even if plaintiffs do not know the exact number of class members. Senter v. General Motors Corporation, 532 F.2d 511, 523 n.24 (6th Cir. 1976); In re Consumers Power Co. Securities Litigation, 105 F.R.D. 583, 601 (E.D. Mich. 1985); see also 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE § 1762 (2d ed. 1986) (hereinafter "WRIGHT & MILLER"). The class may include persons already harmed by the defendants' conduct, as well as persons who will be harmed in the future. See, e.g., Bromley v. Michigan Education Assn., 178 F.R.D. 148, 162 (E.D. Mich. 1998); Smith v. Babcock, 748 F. Supp. 501, 506 (E.D. Mich. 1990), vacated on other grounds, 951 F.2d 350 (6th Cir. 1991); Afro American Patrolmen's League v. Duck, 366 F. Supp. 1095, 1099 (N.D. Ohio 1973) ("the really important persons affected by this [class action] litigation" were future minority applicants) aff'd in relevant part, remanded on other grounds, 503 F.2d 294, 298 (6th Cir. 1974).

Defendants receive thousands of applications for admission each year for a limited number of available spaces. See Defendants' Answer at 11 ("Defendants admit that the [LSA] receives thousands of applications for admission each year..."); Deposition Testimony of Theodore Spencer, June 3, 1998 at pp. 84-85) (Ex. B). ¹ Thus, the sheer number of past and future applicants subject to discrimination plainly makes joinder impracticable. ² see, e.g., Bittinger v.

Tecumseh Products Co., 123 F.3d 877, 884 n. 1 (6th Cir. 1997) (rejecting as "frivolous" the contention that a class of 1,100 did not meet the numerosity requirement of the rules;); Michigan State University Faculty Ass'n. v. Michigan State University, 93 F.R.D. 54, 56 n. 1 (W.D. Mich. 1981) (class of 319 members found sufficient) ("when a class numbers in the hundreds or thousands, the impracticability of joinder is obvious"); International Union, United Automobile, Aerospace & Agricultural Workers of America, UAW v. Acme Precision Products, Inc., 515 F. Supp. 537, 540 (E.D. Mich. 1981) (certifying class of only 78 members), Moreover, even if numerosity were an issue, the requirement is relaxed when plaintiffs, as here, seek injunctive or declaratory relief. See Smith v. Babcock, 748 F. Supp. 501, 505 (E.D. Mich. 1990), vacated on other grounds, 951 F.2d 350 (6th Cir. 1991). Consequently, there cannot be any serious doubt that plaintiffs' proposed class satisfies the numerosity requirement of Rule 23(a).

2. Commonality

The "commonality" requirement of Rule 23(a) means only that there must be some question of law or fact common to the class. "The commonality test 'is qualitative rather than quantitative, that is there need be only a single issue common to all members of the class.'" In re American Medical Systems, Inc. 75 F.3d 1069, 1080 (6th Cir. 1996) (quoting 1 NEWBERG � 3.10); see also, e.g., Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1015 (W.D. Mich. 1987). Sufficient commonality is shown where the allegations are that the party opposing the class engaged in some course of conduct that affects a group of persons and gives rise to a cause of action. Id.

In this case, plaintiffs' allegations demonstrate significant commonality of both facts and law. By its nature, "[r]ace discrimination is peculiarly class discrimination." Senter v. General Motors Corporation, 532 F.2d 511, 524 (6th Cir. 1976); General Telephone Co. v. Falcon, 457 U.S. 147, 157 (1982) ("suits alleging racial or ethnic discrimination are often by their very nature class suits, involving class wide wrongs and that '[c]ommon questions of law or facts are typically present'") (quoting East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405 (1977)). The Complaint here alleges a systematic use of race as a factor in the defendants' admissions policies and practices. This is not a case in which plaintiffs allege that the discriminatory practices applied to them alone; all members of the racial groups disfavored by defendants' policies suffer (and will suffer) injury. These common injuries in fact also have common legal remedies - claims under 42 U.S.C. §§ 1981, 1983, and 2000d et seq.

Defendants' allegation that they review applications based on many factors in addition to race (see Answer at 18-19) neither meets nor contradicts the allegation in the Complaint that plaintiff and others who receive disfavored consideration on account of their race have suffered a common harm. The Sixth Circuit addressed the issue in Senter v. General Motors Corporation, 532 F.2d 511, 524 (6th Cir. 1974), which involved claims of racial discrimination in employment in violation of Title VII:

....It is manifest that every decision to hire, fire or discharge an employee may involve individual considerations. Yet when that decision is made as part of class-wide discriminatory practices, courts bear a special responsibility to vindicate the policies of [Title VII] regardless of the position of the individual plaintiff. ...Factual identity between the plaintiff's claims and those of the class he seeks to represent is not necessary.

532 F.2d at 524 (affirming certification of class of minority employees); see also, e.g., Bittinger v. Tecumseh Products Co., 123 F.3d 877, 884-85 (6th Cir. 1997); Bremiller v. Cleveland Psychiatric Insititute, 898 F. Supp. 72, 579 (N.D. Ohio 1995) ("to satisfy the commonality requirement, it is enough that 'discrimination had been practiced across the board'") ( quoting Senter, 532 F.2d at 524); Little Caesar Enterprises, Inc. v. Smith, 172 F.R.D. 236, 242 (E.D. Mich. 1997) (Rule 23(a)(2) "requires only some common issues of law or fact, not the predominance of common issues required by Rule 23(b)(3)") (emphasis in original)).

Plaintiffs' action, therefore, unquestionably satisfies the "commonality" requirement of Rule 23(a).

3.  Typicality

The "typicality" requirement of Rule 23(a) overlaps and merges with the "commonality" requirement. General Telephone Company v. Falcon, 457 U.S. 147, 157 n.13 (1982); Bittinger v. Tecumseh Products Co., 123 F.2d 877, 884-85 (6th Cir. 1997); Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1016 (W.D. Mich. 1987). Typicality exists where the named plaintiffs' claims and those of other class members arise from the same event or course of conduct. See 1 NEWBERG § 3.13, at 3-76. As discussed above regarding the element of "commonality," plaintiffs' claims of unlawful discrimination arise from defendants' systematic use of race in making admissions decisions that adversely affect all applicants who are not members of the preferred racial groups. Accordingly, plaintiffs' claims satisfy the typicality requirements of Rule 23(a).

4.  Adequacy of Representation

The adequacy of representation requirement also tends to merge with the commonality and typicality requirements of Rule 23(a). Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2251 n.20 (1997); In re American Medical Systems, 75 F.3d 1069, 1083 (6th Cir. 1996); In re Mutual Savings Bank Securities Litigation, 166 F.R.D. 377, 382 (E.D. Mich. 1996) The Sixth Circuit looks to two criteria for satisfaction of the "adequacy of representation" element: (1) the class representative must have common interests with the unnamed members of the class; and (2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel. See Gonzales v. Cassidy, 474 F.2d 67, 73 (5th Cir. 1973); Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976); Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1017 (W.D. Mich. 1987).

Both criteria are clearly met in this case. As discussed regarding the elements of commonality and typicality, the named plaintiffs and the proposed class members confront the dame racially discriminatory barriers that defendants employ in their admissions policies and practices. Plaintiffs and the class members also share the common interest of obtaining a judicial declaration of the unlawfulness of defendants' policies. Plaintiff Hamacher and the class share a further interest in obtaining an order enjoining use of those policies in the future. In addition, plaintiff's counsel are experienced in civil rights and class action litigation. See Affidavits of David F. Herr and Kirk O. Kolbo and Statement of Michael E. Rosman (Ex. F). Consequently plaintiffs and their counsel will represent the interests of the class adequately and vigorously.