The University Record, August 16, 1999

Appeals Court rules intervenors may join lawsuit defense

By Jane R. Elgass

An Aug. 10 ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati will allow two groups of intervenors to participate in the defense of the two admissions lawsuits filed against the University in 1997—one against LS&A and the other against the Law School.

The ruling makes it likely that trial dates may be delayed as much as six months. The Law School case was due to start Aug. 30, LS&A’s in September or October. The next step, says Elizabeth Barry, associate vice president and deputy general counsel, will probably be a meeting with the District Court judges “to see where the case goes from here.” The likely issues for discussion will be how much time the intervenors need to become familiar with the case and to gather information from the other two parties in order to present their point of view.

Barry says that the University “welcomes the intervenors’ involvement in the case. Their participation will add an important view to the debate—the voice of affected students. Both the intervenors and the University are fighting for the same thing—preservation of a diverse student body. This ruling puts students front and center in the cases.”

In statements made to the Chronicle of Higher Education last week, Barry said the University will continue to defend its admissions policies based on “the educational benefits of diversity,” arguing that the process is “legal and effective and fair.”

Commenting on the undergraduate lawsuit in October 1997, President Lee C. Bollinger said that “what is being attacked is a long-standing policy of the University of Michigan that is deeply rooted in the history, tradition and the identity of the University. We have and must continue to make sure that this institution is open to all parts of American society, and that the experience we offer our students who come here is one that is as rich and diverse as we can possibly make it.”

The University maintains that the facts in the cases demonstrate that the use of race in the admissions processes meets the constitutional requirements set forth in the Supreme Court’s 1978 ruling on Regents of the University of California v. Bakke.

The Supreme Court said that attaining the educational benefit of diversity is a compelling government interest justifying the use of race as a factor in admissions, as long as all students admitted are fully qualified and their admissions are not based on quotas.

Proposed intervenors must establish four elements to be able to participate in cases:

  • That the motion to intervene was timely.

  • That they have substantial legal interest in the subject matter of the case.

  • That their ability to protect that interest may be impaired in the absence of intervention.

  • That the parties already before the court may not adequately represent their interest.

    U.S. District Court rulings last summer on motions to intervene denied the intervenors’ participation in the cases, arguing that their interests already were being met by the University’s defense of the lawsuits. Last week’s Appeals Court ruling states that the groups have established the last three elements and are entitled to participate.

    The text of the Appeals Court ruling notes that “intervenors claim that the resolution of this case directly threatens the access of qualified African American and Latino/a students to public higher education and that the University will not adequately represent their interest in educational opportunity.”

    Commenting on the substantial legal interest element the Court stated that “in this circuit we subscribe to a ‘rather expansive notion of the interest sufficient to invoke intervention of right.’”

    With respect to the protection of interests, the ruling stated: “There is little room for doubt that access to the University for African American and Latino/a students will be impaired to some extent and that a substantial decline in the enrollment of these students may well result if the University is precluded from considering race as a factor in admissions. Recent experiences in California and Texas suggest such an outcome. The possibility of similar effects in Michigan is more than sufficient to meet the minimal requirements of the impairment element.”

    On inadequate representation, the court document states that “the proposed intervenors insist that there is indeed a possibility that the University will inadequately represent their interests, because the University is subject to internal and external institutional pressures that may prevent it from articulating some of the defenses of affirmative action that the proposed intervenors intend to present. They also argue that the University is at less risk of harm than the applicants if it loses this case and, thus, that the University may not defend the case as vigorously as the proposed intervenors.”

    In the ruling, the Appeals Court said that “the proposed intervenors’ burden in showing inadequacy is minimal,” that they need only show a “potential” for inadequate representation.

    In conclusion, the Appeals Court said, “. . . we find that the proposed intervenors have shown that they have a substantial legal interest in the subject matter of this matter, that this interest will be impaired by an adverse determination, and that the existing defendant, the University, may not adequately represent their interest.”

    The intervenors in the undergraduate admissions case include 17 Black or Hispanic students who applied or planned to apply to the U-M and the group Citizens for Affirmative Action Preservation.

    The Law School case intervenors include 41 students and three pro-affirmative action coalitions—United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action By Any Means Necessary and Law Students for Affirmative Action.

    The lawsuits against the University were brought forward by the Center for Individual Rights, a Washington-based public interest law group, representing two white undergraduates not admitted to the U-M who claim that different standards are used to admit students of different races, and a white Law School applicant who claims she was rejected for admission because of her race.

    For more information on the lawsuits, visit the Web at