Arguments to start in lawsuit

By Jen Fish

Daily Staff Reporter

After three years of legal wrangling and almost endless speculation, there is a very slim chance that the lawsuits challenging the use of race as a factor in University admissions could actually end today.

Oral arguments for summary judgment in the lawsuit challenging the College of Literature, Sciences and the Arts will be heard in federal district court for in Detroit today.

Judge Patrick Duggan will preside over the case, which has seen an array of delays since its initial filing more than three years ago by the Washington, D.C.-based Center for Individual Rights on behalf of rejected white applicants Patrick Hamacher and Jennifer Gratz.

Last spring, the University and the Center for Individual Rights submitted motions for summary judgment, asking the judge to make a decision based on evidence presented without going to trial

In effect, both sides are asking the judge to rule in their favor because their interpretation of the evidence is so compelling, a trial is unnecessary.

If a summary judgment is not granted, the case will go to trial, possibly as soon as December.

"This is sort of like the last stop before the train goes express," University Deputy General Counsel Liz Barry said.

Also at the judge's discretion today is the decision to issue a summary judgment on a motion filed by the University's lawyers to have former University President James Duderstadt and current President Lee Bollinger dismissed as defendants in the case on the grounds of qualified immunity.

This doctrine basically allows government officials to be immune from suits "when they act in good faith in reliance of the law," Barry said.

More simply, because Duderstadt and Bollinger executed their duties according to the law, they should not be subject to suit.

If summary judgment is granted on the case as a whole, it would essentially be over, but only at the district level. It has been made reasonably clear that

no matter what the outcome of today or any upcoming trial, an appeal is more than likely.

"There is no dispute about the facts, the only dispute is in the law," Barry said. That is, there is no doubt that the University does allow the use of race as a factor in admissions. The central legal question is whether or not such a policy is constitutional.

The University asserts that the 1978 Supreme Court case Regents of the University of California v. Bakke, which outlawed the use of racial quotas in college admissions, justifies the use of race in evaluating applicants.

In a separate opinion, Justice Lewis Powell said that attaining greater diversity is a compelling governmental interest. Since then, Powell's interpretation of the case has been a point of contention.

CIR contends the use of race as a factor in admission policies violates the 14th Amendment of the Constitution which guarantees equal protection under the law.

In August 1999, the Sixth Circuit Court of Appeals in Cincinnati allowed the entrance of the intervening defendants after Duggan initially denied the inclusion of the third party. Made up primarily of interested students, the third party had to prove neither the plaintiff or the defendant would adequately represent their interest.

The intervenors state that the use of race is needed to remedy past discrimination by the University.

The intervenors will argue today that there is a dispute of facts and the case should go to trial. Godfrey Dillard, lead counsel for the intervenors, said he believes there is discrimination against minorities at the University of Michigan, despite the administration's attempts at attaining greater diversity.

A study commissioned by the intervenors also asserts that Gratz's claim that her spot was taken by a less qualified minority student is wrong because 1,300 other white students with lesser test scores than Gratz were admitted.

Dillard said he was "cautiously optimistic" that tomorrow's hearing would send the case to trial.