Lawsuit parties file coalition responses

By Peter Romer-Friedman
Daily Staff Reporter

Both the University and the Center for Individual Rights filed responses yesterday to a coalition's motion to intervene in the first of two lawsuits challenging the University's admissions policies.

The University did not oppose the intervention, while CIR expressed its opposition to the inclusion of the coalition that is seeking to intervene on behalf of 17 minority high school students.

CIR filed the lawsuit against the College of Literature, Science and the Arts on Oct. 14 targeting its use of race as a factor in the admissions process.

The coalition, called Citizens for Affirmative Action's Preservation, said it wishes to intervene because it believes it has interests that cannot be sufficiently represented by the University.

If Detroit Federal Judge Patrick Duggan approves the intervention in Gratz v. Bollinger, the coalition would have rights equal to both parties.

"The defendants will vigorously defend this case," the University's response stated. "The Proposed defendant-intervenors have a substantial interest in the subject matter of this litigation. The defendants do not oppose their motion to intervene in this case."

CAAP, comprised of 17 students, parents, attorneys, the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund and the Mexican American Legal Defense and Educational Fund, has five days to reply to the two responses, after which Duggan will hand down his decision on the intervention.

CIR Senior Legal Counsel Terry Pell said the coalition has no "legally protectable interest," and therefore, Duggan should deny its motion to intervene. He said it would also complicate the lawsuit and slow down the legal process.

"The assumption is that racial preferences ae required such that they have a legally protectable interest," Pell said.

But Pell's reasoning may not hold water since legal precedents in the 6th Circuit do not require the intervening group to prove it has a legal interest, said Godfrey Dillard, CAAP's lead attorney.

Under Federal Rules of Civil Procedure, Rule 24 "makes no claim of a legal interest, just an interest," Dillard said. "The modification of the admissions process will have a demonstrative effect on their ability to apply to the University. (Pell) makes a point of calling it a legal interest even though you only need interest. We have a significant interest and a legal interest."

Pell said intervention decisions usually are handled on a case-by-case basis. But Robert Sedler, a constitutional law professor at Wayne State University, said Duggan allowed intervention in a term limits case last summer and ruled that intervenors do not need to have a legal interest.

Dillard said the coalition will file its official reply on March 2. But, his team of lawyers will not make substantial changes to its initial motion to intervene.

"We're going to go back to our brief, because our brief is correct," Dillard said. "There is nothing fundamental to change in our response."

The University's legal counsel has been relatively quiet about its legal strategy and University officials have not commented extensively on the reasoning behind the response.

"We believe the response speaks for itself," said Associate Vice President for University Relations Lisa Baker, who would not comment further.

Pell, who represented Cheryl Hopwood in the landmark case that banned the use of affirmative action in Texas in 1996, said the coalition may have a hard time proving its case.

"I think the civil rights groups face an uphill battle," Pell said. "They have a difficult case to make."

Confidently anticipating a court victory, Dillard said the intervention should be accepted because it fully complies with the expectations of Rule 24.

"We think our petition is consistent with the law and we're hopeful that the judge will grant it," Dillard said. "A number of 6th Circuit cases have allowed beneficiaries to intervene."

02-25-98