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 No. 97-75928    Hon. Bernard Friedman    Hon. Virginia Morgan    Motion to Intervene

MOTION TO INTERVENE

Pursuant to the Federal Rules of Procedure, Rule 24(a) and (b), 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 Kao, 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, by and through their attorneys, Scheff & Washington, P.C., hereby move for leave to intervene as party defendants in this action. A copy of the Proposed Answer of Intervening Defendants is attached hereto.

As more fully described below, applicant individuals are black, Latino/a, Mexican-American, Filipino/a, Asian-American and other students who currently attend the University of Michigan (the University), including some who attend the University of Michigan Law School (the Law School), or who plan to attend the University of Michigan and/or its Law School; applicant organizations are interracial coalitions which actively seek to preserve affirmative action programs at the University of Michigan. All of the applicants have interests in this case which in breadth, depth and urgency exceed the University's own interests in defending its affirmative action admissions policy. Applicants are the persons whose rights, skills acquisition, aspirations and lives-present and future-will be indelibly changed by whether or not efforts to equalize educational access and opportunity are maintained. They are the ones who will be most affected by the outcome of this litigation.

A. Undergraduate applicants for intervention

1. Kimberly James is a black student at the University of Michigan College of Literature, Sciences, and Arts (LSA) in her sophomore year. She intends to apply to the University of Michigan Law School.

2. Farah Mongeau is a black student in LSA in her senior year. She intends to apply to the Law School.

3. Jeanette Haslett is a black student in LSA in her sophomore year. She intends to apply to the Law School.

4. Raymond Michael Whitlow is a black student in LSA in his freshman year. He intends to apply to the Law School.

5 Shabatayah Andrich is a black student in LSA in his sophomore year. He intends to apply to the Law School.

6. Dena Fernandez is a mixed-race freshman at the University of Michigan School of Nursing in her freshman year. She intends to apply to the Law School.

7. Shalamarel Kevin Killough is a black student in LSA in his senior year. He has applied to the Law School.

8. Diego Bernal is a Latino student in LSA in his junior year. He intends to pursue graduate studies in social work and then apply to the Law School.

9. Julie Fry is a white student in LSA in her freshman year. She intends to apply to the Law School.

10. Jessica Curtin is a white student in LSA in her senior year. She has been accepted to the University of Michigan School of Education, where she will be going next year. When she finishes her studies at the School of Education, she intends to apply to the Law School.

11. James Huang is an Asian-American student at Wayne State University in his junior year. He intends to apply to the Law School.

12. Heather Bergman is a white student at the University of California at Berkeley (UCB) in her senior year. She intends to apply to the Law School.

13. Ashwana Carlisle is a black student at UCB in her senior year. She intends to apply to the Law School.

14. Ronald Cruz is a Filipino student at UCB in his junior year. He intends to apply to the Law School.

15. Nora Cecilia Melendez is a Latina student at UCB in her sophomore year. She intends to apply to the Law School.

16. Irami Osei-Frimpong is a black student at UCB in his junior year. He intends to apply to the Law School.

17. Gerald Ramos is a Filipino student at UCB in his junior year. He intends to apply to the Law School.

18. Arturo Vasquez is a Latino student at UCB in his freshman year. He intends to apply to the Law School.

19. Edward Vasquez is a Latino student at UCB in his junior year. He intends to apply to the Law School.

20. Vincent Kukua is a Hawaiian student at Diablo Valley Community College (DVCC) in Pleasant Hill California in his freshman year. He intends to apply to the Law School.

21. Hoku Jeffrey is a black student at DVCC in his sophomore year. He intends to apply to the Law School.

B. High school applicants for intervention

22. Karlita Stephens is a black student at Cass Technical High School in Detroit (Cass Tech) in her junior year. She intends to apply to LSA and the Law School.

23. Yolanda Gibson is a black student at Cass Tech in her senior year. She has accepted admission at Michigan State University and intends to apply to the Law School.

24. Erika Dowdell is a black student at Cass Tech in her senior year. She has applied to the University's undergraduate School of Music and intends to apply to the Law School.

25. Agnes Aleobua is a black student at Cass Tech in her junior year. She intends to apply to LSA and the Law School.

26. Cassandra Young is a black student at Northwestern I-Iigh School in Detroit. She is in her junior year. She intends to apply to LSA and the Law School.

C. Law School applicants for intervention

27. Jaasi Munanka is a black student at the Law School in his first year.

28. Jodi-Marie Masley is a white student at the Law School in her first year.

29. Shamon Ewing is a Latina student at the Law School in her first year.

30. Julie Kerouac is a Latina student at the Law School in her first year.

31. Kevin Pimentel is a Filipino student at the Law School in his first year.

32. Bernard Cooper is a black student at the Law School in his second year.

33. Norberto Salinas is a Mexican-American student at the Law School in his first year.

34. Scott Rowekamp is a white student at the Law School in his first year.

35. Russ Abrutyn is a white student at the Law School in his second year.

36. Jasmine Abdel-Khalik is a Latina/Arab-American student at the Law School in her first year.

37. Meera Deo is a South Asian student at the Law School in her first year.

38. Winifred Kao is an Asian-American student at the Law School in her first year.

D. Other individual applicants for intervention

39. Melisa Resch graduated from Wayne State University in 1993. She works as a Health Unit Coordinator and does part-time, free lance paralegal work, including factual investigation and witness preparation. She intends to apply to the Law School.

40. Oscar de la Torre is a Latino graduate student in Public Affairs at the University of Texas at Austin in his second year. He will graduate in May, and intends to apply to the Law School.

41. Carol Scarlett is a black graduate student in the Department of Physics at the University of Michigan in her second year. She is a graduate school representative from the Defend Affirmative Action Party in the Michigan Student Assembly. She is one of two black representatives out of 25 in the Michigan Student Assembly.

E. Organizational applicants for intervention

42. United for Equality and Affirmative Action (UEAA) is a pro-affirmative action coalition consisting of applicants for intervention, teachers, parents of minor applicants, and other supporters of affirmative action.

43. The Coalition to Defend Affirmative Action By Any Means Necessary (BAMN) is a pro-affirmative action coalition with chapters in California and Michigan. BAMN has engaged in a wide range of activities in defense of affirmative action at the University of Michigan in the 1997-1998 school year. BAMN built the Defend Affirmative Action Party, which has run and elected candidates in student elections in November 1997 and March 1998. BAMN also has taken a leading role in pulling together a coalition of student groups to sponsor days of action in defense of affirmative action on February 24 and April 1, 1998, including demonstrations, rallies, and mass meetings, with more than 500 students participating on February 24.

44. Law Students for Affirmative Action (LSAA) is a pro-affirmative action coalition at the Law School which has devoted itself to mobilizing support for affirmative action at the Law School and the University. LSAA also took a leading role in organizing the campus for the February 24th Day of Action, in contacting student groups on other campuses, and in putting together a well-attended teach-in on that day.

45. Applicants must be permitted to intervene in this litigation in order to defend and protect their interests which, for all practical purposes, cannot otherwise be protected. For many applicants, the outcome of this case will determine whether they ever have the opportunity to attend the Law School and whether they are able to avail themselves of the educational and professional opportunities which a University of Michigan Law School degree provides. For other applicants, the outcome of this case will affect the environment at the Law School and other parts of the University and significantly contribute to determining whether that environment is conducive to the, education of black, other minority, and women students, or whether it is riddled with racial and sexual prejudice and hostility. For all applicants, the outcome of this case will have a profound effect--both immediately and in its aftermath--on their vital interests in higher education not being resegregated and in the promotion of equality and democracy for all persons.

46. The University of Michigan cannot adequately represent the applicants' interests. While having a strong stake in maintaining its admissions policy at the Law School, as a public institution, the University is accountable to, and subject to pressure from, a broad spectrum of students, parents, alumni and state legislators, including some who do not support affirmative action.

47. Further, in all likelihood, the University will fail to raise a number of available defenses in this lawsuit, including particularly those which call into question its own past discriminatory practices and/or passive participation in present discriminatory practices--for example, the Law School's continued use of LSAT scores as a factor in determining admissions, when the discriminatory impact of such use has been documented. Nor is the University likely to pursue a number of available defenses as vigorously as will applicants if allowed to intervene, in part because the evidence to support those defenses is more readily available to applicants as persons who have direct knowledge of segregated and/or resegregated educational institutions.

48. Further, applicants assert an interest in an affirmative action policy at the Law School which attempts to provide fair and equal access to women, as well as black and other minority students, by considering gender as a factor in admissions. Although not directly challenged by plaintiff, that policy will also be affected by the outcome of this case, and thus far the University has indicated no intent to defend it.

49. This motion to intervene is timely, being brought early on in the proceedings. Applicants' interests, coupled with the University's inability to fully and adequately express and represent those interests, more than satisfy the requirements for intervention as of right. Indeed, as the direct beneficiaries of affirmative action and as the direct targets of this lawsuit, no possibility of a fair adjudication of this dispute exists without applicants' full participation as parties to the action.

50. For similar reasons, should this Court for any reason deny intervention as of right, applicants have established the basis for being granted permissive intervention. Applicants' defenses have numerous legal and factual questions in common with those raised in the main action. Further, their request for intervention is timely and poses no threat of delay or prejudice to the original parties.

51. In accordance with Local Rule 7.1, applicants have sought the parties' concurrence in this motion. Counsel for Proposed Intervening Defendants attempted to contact and left messages for Leonard Niehoff and Jane Sherburne, counsel for the University, at approximately 5:30 P.M. on Wednesday, March 26, 1998. On Thursday, March 27, she spoke with Mr. Niehoff, who wished to review these papers. At approximately 5:30 on Wednesday, she also spoke with Michael Rosman, counsel for plaintiff, and left messages for plaintiff's other counsel. Mr. Rosman stated that the decision was Mr. Kolbo's, but that he believed Mr. Kolbo would not concur in this motion. Counsel for Proposed Intervening Defendants again attempted to reach Mr. Kolbo on Thursday, and left another message for him.

For the above reasons and those set forth in the accompanying Memorandum of Law In Support of Motion To Intervene, applicants request that this motion be granted and the Court allow them to intervene as party defendants in this action.

Dated:   March 26, 1998

Respectfully requested, Scheff & Washington, P.C. Attorneys for Proposed Intervening Defendants BY:____________________________    Miranda K.S. Massie (P-56564) _____________________________ Eileen R. Scheff (P-27914) _____________________________ George B. Washington (P-26201) One Kennedy Square--Suite 2137 Detroit, Michigan 48221 (313) 963-1921