Class-action to widen impact of suits

Lawsuits could now affect 6,000 recent applicants

As two lawsuits currently facing the University evolve to impact more applicants who claim their race hurt them in the admissions process, the potential damages to the University remain unclear.

Recently, the lawsuits filed last year by the Center for Individual Rights against the College of Literature, Science and the Arts and the Law School targeting their use of race in admissions have been granted class-action status. However, it is not yet known how this could benefit white applicants who were denied admission on the basis of their race.

"The judge didn't make any judgment to damages," said Terry Pell, senior legal counsel for the Washington D.C.-based firm. Pell said the judge has not yet addressed how to remedy the alleged injury of those denied admission.

Law Prof. Sherman Clark declined to comment on the lawsuits, filed in the Eastern District of Michigan, against the University, but explained the class-action status.

"A class-action is a decision by a court that the plaintiff in a particular case can be said to represent a larger group of potential plaintiffs," Clark said.

"The class-action focuses (the lawsuit) on the policy," Pell said. "It closes a legal loophole."

Without the class certification, the University could charge the plaintiffs would not have been admitted in a race-neutral setting, Pell said.

"It makes it more difficult for the University to argue that the plaintiff was not hurt by this policy," he said. Class-action status impacts the outcome of a suit more when damages are primarily monetary rather than policy-oriented, Clark said.

If the lawsuit results in an injunction, the University would be forced to use race-neutral admissions policies and the class-action status would have had less of an impact on the outcome.

The larger group, represented by plaintiff Barbara Grutter in the Law School case and plaintiff Patrick Hamacher in the LSA case, includes those applicants not granted admission from 1995 to the present who are members of racial or ethnic groups the University favors less in admissions considerations, according to court documents. The University gives priority to black, hispanic and Native American applicants.

Clark said that on the surface, the class members seem very diverse in their non-race qualifications for University admission. "That's why it has surprised a number of legal experts to see a class certified in the University case," he said.

The courts, which will decide the rights of the potential class members, require all potential members to be notified, Clark said.

Under the ruling of the judges to bifurcate the trials, which splits the case into liability and damage phases, class members would not have to be notified unless the University is found liable, said a source familiar with the litigation who asked not to be named.

The source also said the bifurcation of the trial means the University will not have to change its defense unless it is found liable.

The court will not require the 6,000 applicants potentially included in the suit to participate actively in the lawsuit, Pell said.

CIR's plans to obtain University admissions documents and to question employees, a process that could last until the trial early this summer, Pell said.

When it filed a similar lawsuit against the University of Texas Law School in the early 1990s CIR used this tactic for mapping the admissions process of the University of Texas. CIR used this map to prove the admissions policy discriminated against less-favored racial and ethnic groups, and won the case in 1996.

The case Hopwood vs. the State of Texas was not a class-action suit because CIR did not file the original case. Had they filed the original papers, CIR would have filed for class-action status, Pell said.

01-12-99