MEMORANDUM OF LAW IN SUPPORT OF
RENEWED MOTION BY DEFENDANTS BOLLINGER, LEHMAN, AND SHIELDS
FOR SUMMARY JUDGMENT ON GROUNDS OF QUALIFIED IMMUNITY
INTRODUCTION
More than twenty years ago, the Supreme Court upheld the consideration of race as a factor in university admissions decisions as constitutional. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the 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.” Id. at 320. Since that time, countless law schools, colleges, and universities, including the University of Michigan, have not only complied with Bakke, but have also affirmatively relied on it. These prominent institutions have found that their educational missions are in fundamental ways dependent on “a properly devised” admissions system that produces a racially and ethnically diverse student body.
In the decades since Bakke, the Supreme Court has neither reversed nor even revisited its holding in that case. Only in the last few years have there been legal challenges to the use of race as a factor in an admissions process. 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. State of 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.
Plaintiff Barbara Grutter and her class seek to change the law as it is set forth in Bakke. In addition to suing the University of Michigan, which is vigorously defending the admissions policy of its Law School, Ms. Grutter and her class have also sued individual officials of the University and Law School, in their personal capacities, for money damages. None of these individual defendants belongs in this case. They each enjoy qualified immunity for their actions in designing and operating the admissions policy. The applicable standard is clear: “government 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)).
When the qualified immunity defense is raised, it is imperative that a court decide its application as promptly as possible, well before the case proceeds to trial. As the Supreme Court has held: “[B]ecause the entitlement is an immunity from suit rather than a mere defense to liability, we repeatedly have 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). This motion was originally filed last year, before the Sixth Circuit allowed a group of minority students to intervene as defendants in this case. The Court deferred ruling on the initial motion in light of the intervention. Some intervenor discovery remains to be completed, but the record on which this qualified immunity motion must be decided is complete and conclusively demonstrates that the University of Michigan has rigorously and conscientiously complied with Bakke. While the principal summary judgment motions on the merits can properly be considered at the close of discovery later this year, the renewed motion by the individual defendants should be decided now, in light of the principle that qualified immunity claims are to be resolved promptly.
Defendants Bollinger, Lehman and Shields are entitled to qualified immunity in connection with their actions in devising and implementing the Law School admissions policy. Their motion for summary judgment should be granted and they should be dismissed from this case immediately.
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