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. _____________________________________

) ) ) ) ) )    Civil Action No. 97-75928 )    Hon. Bernard Friedman )    Hon. Virginia Morgan ) ) ) ) ) ) ) ) ) )

ANSWER

Defendants Lee Bollinger, Jeffrey Lehman, Dennis Shields, and Regents of the University of Michigan hereby answer the Complaint. Defendants treat named defendant "The University of Michigan Law School" as referring to the "Regents of the University of Michigan," the body corporate with the authority to be sued under law, and respond to the Complaint on that basis. Accordingly, the term "defendants" as used in this Answer refers to Bollinger, Lehman, Shields and the Regents of the University of Michigan.

Except as hereinafter expressly admitted, qualified, or otherwise admitted, defendants specifically deny each and every allegation, statement, matter and thing contained in the Complaint. Defendants respond to the numbered allegations in the Complaint on knowledge to themselves and 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 plaintiff's characterization of her claims.

2.   Defendants deny the allegations in paragraph 2 of the Complaint.

3.   Defendants admit that, to the extent that the Court has subject-matter jurisdiction, venue is proper in this Court. Defendants deny all of the remaining allegations in paragraph 3 of the Complaint.

4.   Defendants state that, on or about December 10, 1996, the University of Michigan Law School received an application for admission for the fall 1997 term from Barbara Grutter. On April 18, 1997, the University of Michigan Law School sent a letter to Grutter informing her that she was being placed on a "waiting list." On June 25, 1997, the University of Michigan Law School sent a letter to Grutter informing her that her application was rejected. All defendants lack knowledge and information sufficient to form a belief as to the truth or falsity of the remaining allegations of paragraph 4 of the Complaint.

5.   Defendants admit the allegations in the first sentence of paragraph 5 of the Complaint. Defendants do not understand the second sentence of paragraph 5 of the Complaint as pleaded, but state that the Law School is a school of the University of Michigan.

6.   Defendants admit the allegations in the first sentence of paragraph 6 of the Complaint. In response to the second sentence, defendants state that immediately before becoming president of the University, Bollinger served as Provost of Dartmouth University. Defendants further state that prior to that, Bollinger served as dean of the Law School, and in that capacity had oversight responsibility for the admissions policy in place during his tenure as dean. Defendants further state that as president of the University, Bollinger now has oversight responsibility for the Law School's admissions policy. Defendants deny that the Law School's admissions policy led to plaintiff being treated unequally. Defendants admit that plaintiff purports to sue Bollinger in his individual and official capacities.

7.   Defendants admit the allegations in the first sentence of paragraph 7 of the Complaint. In response to the second sentence, defendants state that the Law School's admission policy is substantially the same as the policy in place when Lehman became dean of the Law School, and deny that such policy led to plaintiff being treated unequally. Defendants further state that as dean of the Law School, Lehman has oversight responsibility for the Law School's admissions policies. Defendants admit that plaintiff purports to sue Lehman in his individual and official capacities.

8.   Defendants state that Shields is an Assistant Dean and Director of Admissions at the Law School, and has responsibility for carrying out the Law School's admissions policy. Defendants deny that the Law School's admissions policies led to the plaintiff being treated unequally. Defendants admit that the plaintiff purports to sue Shields in his individual and official capacities.

9.   Defendants state that the Complaint inaccurately describes the University of Michigan Law School's admissions process, and therefore that no response is required. To the extent that a response is deemed necessary, defendants state that they do have a current intention to continue using 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 through important element.

10.   Defendants admit that plaintiff purports to bring this action as a class action. No response is necessary to the plaintiff's characterization of her claims in the remainder of paragraph 10 of the Complaint.

11.   Defendants admit that plaintiff seeks to maintain a class. No response is necessary to the plaintiff's characterization of her claims in the remainder of paragraph 11 of the Complaint.

12.   Defendants admit that the University of Michigan Law School receives thousands of applications for admission each year, and that some of the names and addresses or rejected applicants may be obtained from files maintained by the Law School's Admissions Office. Defendants deny all of the remaining allegations in paragraph 12 of the Complaint.

13.   Defendants deny the allegations in paragraph 13 of the Complaint.

14.   Defendants deny the allegations in paragraph 14 of the Complaint, except that defendants lack information or knowledge sufficient to form a belief as to the truth of the allegations regarding the competence and experience of plaintiff's counsel.

15.   Defendants deny the allegations in paragraph 15 of the Complaint.

16.   Defendants state that the University of Michigan is an entity created by the Michigan State Constitution. Defendants admit that the University of Michigan, which includes the University of Michigan Law School, receives federal funds.

17.   Defendants admit that the Application to the University of Michigan's J.D. Program permits applicants to indicate their race.

18.   Defendants admit that on her application, plaintiff indicated that her racial or ethnic identification was "White American."

19.   Defendants state that the University of Michigan Law School 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. Defendants deny all of the remaining allegations in paragraph 19 of the Complaint.

20.   Defendants state that the University of Michigan Law School applies rigorous admissions standards to all applicants; and that all admitted students are fully qualified to succeed at the Law School. Defendants further state that the University of Michigan Law School 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. Defendants deny all of the remaining allegations in paragraph 20 of the Complaint.

21.   Defendants deny the allegations in paragraph 21 of the Complaint.

22.   Defendants admit that plaintiff is not a member of an underrepresented minority group and that her race was not a factor that enhanced the University of Michigan Law School's consideration of her application. Defendants deny all of the remaining allegations in paragraph 22 of the Complaint.

23.   Defendants admit that the University of Michigan Law School 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. Defendants deny all of the remaining allegations of paragraph 23 of the Complaint.

24.   Paragraph 24 of the Complaint states a conclusion of law to which no response is necessary. To the extent that a response is deemed necessary, defendants deny the allegations in paragraph 24 of the Complaint.

25.   Defendants deny the allegations in paragraph 25 of the Complaint.

26.   Defendants deny the allegations in the first sentence of paragraph 26 of the Complaint. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the other allegations in paragraph 26 of the Complaint.

27.   Defendants deny the allegations in the first sentence of paragraph 27 of the Complaint. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in the remainder of paragraph 27 of the Complaint.

28.   Defendants admit that the University of Michigan Law School 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. Defendants deny all of the remaining allegations in paragraph 28 of the Complaint.

RESPONSE TO PLAINTIFF'S FIRST CLAIM

29.   Defendants repeat their responses to the allegations of paragraphs 1-28 of the Complaint as set forth above.

30.   Paragraph 30 sets forth a conclusion of law to which no response is required. To the extent a response is required, defendants deny all allegations in paragraph 30 of the Complaint.

31.   Paragraph 31 sets forth a conclusion of law to which no response is required. To the extend a response is required, defendants deny the allegations in paragraph 31 of the Complaint.

RESPONSE TO PLAINTIFF'S SECOND CLAIM

32.   Defendants repeat their responses to the allegations of paragraphs 1-31 of the Complaint as set forth above.

33.   Defendants state that the University of Michigan is an entity created by the Michigan State Constitution. Defendants admit that the University of Michigan, which includes the Law School, receives federal funds. Defendants deny the remaining allegations in paragraph 33 of the Complaint.

No response is required to the remainder of the Complaint, which sets forth plaintiff's prayer for relief. To the extent that a response is required, 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 granted.

2.   This Court lacks subject-matter jurisdiction over the Complaint because the plaintiff lacks standing.

3.   Defendants Bollinger, Lehman, and Shields did not violate plaintiff's clearly established rights, and are therefore qualifiedly immune from suit.

4.   This Court lacks subject-matter jurisdiction over the Regents of the University of Michigan, and over Bollinger, Lehman, and Shields in their official capacities, all of whom are immune from suite in federal court by the doctrine of sovereign immunity.

5.   Plaintiff's claims for injunctive relief are barred by the doctrine of mootness.

6.   Plaintiff has failed to mitigate her damages, if any.

7.   Plaintiff's claims are barred by the doctrine of laches.

8.   The University of Michigan Law School is an improper defendant. The Regents of the University of Michigan is the body corporate with the authority to be sued under law.

9.   Defendants state that they assert these affirmative defenses based upon information presently available and in order to avoid waiver. Defendants reserve the right to withdraw any of these affirmative defenses or to assert additional affirmative defenses as further information becomes available.

Wherefore, defendants pray for a judgment dismissing the Complaint with prejudice and awarding them the costs and disbursements of this action, together with attorney's fees, and such additional relief as the Court may deem just and proper.

Dated:   December 3, 1997	Respectfully submitted, _______________________________ John Payton Jane Sherburne WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000 _______________________________ Leonard M. Niehoff P36695 BUTZEL LONG 350 South Main Street, Suite 300 Ann Arbor, MI 48104 (313) 213-3625
CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of December, 1997, true and correct copies of the foregoing Answer were served by first-class mail on:
Patrick J. Wright, Esq. 37781 Hollyhead Farmington Hills, MI 48331 David F. Kerr, Esq. Kirk Kolbo, Esq. Malson, 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, D.C. 20036	___________________________ Leonard M. Niehoff