IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
_____________________________________

BARBARA GRUTTER

             Plaintiff,

      v.

LEE BOLLINGER, et al.

             Defendants. _____________________________________

)
)
)
)     Civil Action No. 97-75928
)
)     Hon. Bernard Friedman
)
)     Hon. Virginia Morgan
)
)
)
=============================================================
DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO CERTIFY
A CLASS ACTION AND TO BIFURCATE LIABILITY FROM DAMAGES
=============================================================

John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037

AND

Leonard M. Niehoff

P36695 BUTZEL LONG
350 South Main Street, Suite 300
Ann Arbor, MI 48104
(313) 213-3625

September 10, 1998

Of Counsel:
John H. Pickering
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037


TABLE OF CONTENTS


Table of Authorities...................................................................................

Statement of Issues Presented..................................................................

Principal Authorities..................................................................................

Introduction................................................................................................

Factual Background...................................................................................

Argument....................................................................................................

Introduction And Summary..............................................................

I. Certification Under Rule 23(b)(2) Is Inappropriate,
    As Plaintiff's Proposed Class Seeks Damages,
    Not Injunctive Relief....................................................................

     A.  Rule 23(b)(2) Is Available Only For Classes Seeking
           Primarily Injunctive Relief....................................................

     B.  Plaintiffs Proposed Class Seeks Primarily
          Monetary Damages................................................................

     C.  Plaintiff And Her Proposed Class Lack Standing
          Even To Seek Injunctive Relief - Let Alone To
          Suggest That Such Relief "Predominates"............................

     D.  Even If The Purported Class Had Standing To Seek
           Injunctive Relief, Certification Under Rule 23(b)(2)
          Would Still Be Unnecessary...................................................

(i)

II. Certification Under Rule 23(b)(1) Is Inappropriate...................

     A. Rule 23(b)(1)(A) Does Not Authorize Certification
          Because This Lawsuit Primarily Seeks Damages, And,
          Therefore, Individual Lawsuits by Putative Class
          Members Pose No Risk Of Imposing Irreconcilable
          Standards Of Conduct On Defendants...................................

     B.  Certification Under Rule 23(b)(1)(A) Should Be
          Denied When The Party Opposing The Class Waives
          Protection Against the Risk Of Incompatible
          Adjudications..........................................................................

     C.  Plaintiff's Application Of The "Limited Fund"
          Rationale For Certification Under Rule 23(b)(1)(B)
          To This Case Is Misplaced....................................................

III. Plaintiff Cannot Show That The Requirements Of Rule
      23(a) Are Satisfied At This Stage Of The Litigation.................

     A.  Rule 23(a) Requires The Named Plaintiff To Be A
          Member Of The Class She Seeks to Certify.........................

     B.  Plaintiff Lacks Standing To Recover Compensatory
          Damages If She Would Not Have Been Admitted To The
          Law School Under An Admissions System That Did Not
          Include The Conscious Consideration Of Race As A
          Factor.....................................................................................

     C.  The Record Makes Clear That The Named Plaintiffs
          Only Injury Is The Denial Of Her Application For
          Admission..............................................................................

IV. Plaintiffs Motion To Bifurcate "Liability" From
     "Damages" Also Misapprehends The Requirement
     That She Suffer "Actual Injury".................................................

Conclusion.................................................................................................

  Page

 iii

 viii

 ix

 1

 4

 5

 5



 10


 10


 11



 13



 18



 20





 20




 24



 25


 27


 28





 30



 35



 37

 39

(ii)

TABLE OF AUTHORS
CASES
Adarand Constructors Inc. v. Pena,
515 U.S. 200 (1995)...............................................................

Allen v. Wright,

468 U.S. 737 (1984)...............................................................

Allison v. Citgo Petroleum Corp.,

__F.3d__, No. 96-30489,1998 WL 483970
(5th Cir. Aug. 18, 1998)........................................................

Blalock v. Metals Trades Inc.,

775 F.2d 703 (6th Cir. 1985).................................................

Brock v. International Union,

889 F.2d 685 (6th Cir. 1989).................................................

Brunet v. City of Columbus,

1 F.3d 390 (6th Cir. 1993).....................................................

Carey v. Piphus,

435 U.S. 247 (1978)...............................................................

Chmieleski v. City Products Corp.,

71 F.R.D. 118 (W.D. Mo. 1976)............................................

Craft v. Memphis Light, Gas & Water Division,

534 F.2d 684 (6th Cir. 1976), aff'd 436 U.S. 1
(1978).....................................................................................

Cullen v. New York State Civil Service Commission,

435 F. Supp. 546 (E.D.N.Y. 1977).........................................

DiLeo v. Board of Regents of the University of Colorado,

590 P.2d 486 (Colo. 1978).....................................................

East Texas Motor Freight System v. Rodriguez,

431 U.S. 395 (1977)...............................................................

(iii)

Employers Insurance of Wausau v. FDIC,

112 F.R.D. 52 (E.D. Tenn. 1986)..........................................

Erebia v. Chrysler Plastic Products Corp.,

772 F.2d 1250 (6th Cir. 1985)...............................................

Fogie v. Rent-A-Center,

867 F. Supp. 1398 (D. Minn. 1993).......................................

Fuller v. Fruehauf Trailer Corp.,

168 F.R.D. 588 (E.D. Mich. 1996)........................................

Gray v. International Brotherhood of Electrical Workers,

73 F.R.D. 638 (D.D.C. 1977).................................................

Green v. Williams,

94 F.R.D. 238 (E.D. Tenn 1980)...........................................

Heckler v. Mathews,

465 U.S. 728 (1984)...............................................................

Honig v. Doe,

484 U.S. 305 (1988)...............................................................

In re Agent Orange Product Liability Litigation,

100 F.R.D. 718 (E.D.N.Y. 1983),
818 F.2d 145 (2d Cir. 1987)..................................................

In re American Medical Systems, Inc.,

75 F.3d 1069 (6th Cir. 1996).................................................

In re Bendectin Product Liability Litigation,

749 F.2d 300 (6th Cir. 1984).................................................

In re Jackson Lockdown/MCO Cases,

107 F.R.D. 703 (E.D. Mich. 1985)........................................

In re Rio Hair Naturalizer Product Liability Litigation,

No. MDL 1055,1996 WL 780512 (E.D. Mich. Dec. 20,
1996)......................................................................................

In re Telectronics Pacing System,

172 F.R.D. 271 (S.D. Ohio 1997)..........................................

(iv)

Kardules v Columbus,

95 F.3d 1335 (6th Cir. 1996).................................................

Levels v. Akzo Nobel Salt Inc.,

178 F.R.D. 171 (N.D. Ohio 1998).........................................

Lewis v. Casey,

518 U.S. 343 (1996)...............................................................

Los Angeles v. Lyons,

461 U.S. 95 (1983..................................................................

Love v. Turlington,

733 F.2d 1562 (I Ith Cir. 1984).............................................

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)...............................................................

Lukenas v. Bryces Mountain Resort, Inc.,

538 F.2d,594 (4th Cir. 1976).................................................

Mackey v. United States,

401 U.S. 667 (1971)...............................................................

McNamara v. City of Chicago,

138 F.3d 1219 (7th Cir. 1998), pet'n for cert filed,
67 U.S.L.W. 3083 (July 20, 1998).........................................

Missouri v. Jenkins,

515 U.S. 70 (1995).................................................................

Moll v. Parkside Livonia Credit Union,

525 F. Supp. 786 (E.D. Mich. 1981)......................................

Mt. Healthy City School District Board of Education v. Doyle,

429 U.S. 274 (1977)...............................................................

National Treasury Employees Union v. Reagan,

509 F. Supp. 1337 (D.D.C. 1981)..........................................

Natural Resources Defense Council v. Pena,

__F.3d__, No. 97-5253, 97-5254
1998 WL 396244 (D.C. Cir. July 17,1998)...........................

(v)

Nava v. City of Dublin,

121 F.3d 453 (9th Cir. 1997).................................................

Northeastern Florida Chapter of Associated General

Contractors of America v. City of Jacksonville,
508 U.S. 656 (1993)...............................................................

Pettco Enterprise v. White,

162 F.R.D. 151 (M.D. Ala. 1995)..........................................

Price v. City of Charlotte,

93 F.3d 1241 (4th Cir. 1996), cert. denied, 117 S. Ct.
1246 (1997)............................................................................

Pruitt v. Allied Chemical Corp.,

85 F.R.D. I 00 (E.D. Va. 1980)..............................................

Regents of the University of California v. Bakke,

438 U.S. 265 (1978)...............................................................

Senter v. General Motors Corp.,

532 F.2d 511 (6th Cir. 1976).................................................

Smith v. Brown & Williamson Tobacco Corp.,

174 F.R.D. 90 (W.D. Mo. 1997)............................................

Smith v. City of Fontana,

818 F.2d 1411 (9th Cir. 1987)...............................................

Smith v. University of Washington Law School,

2 F. Supp. 2d 1324 (W.D. Wash. 1998).................................

Spirt v. Teachers Insurance & Annuity Association,

416 F. Supp. 10 1 9 (S.D.N.Y. 1976).....................................

Sprague v. General Motors, Corp.,

133 F.3d 388 (6th Cir.), cert denied, II 8 S. CL 2312
(1998).....................................................................................

Steel Co. v. Citizens for a Better Environment,

118 S. Ct. 1003 (1998)...........................................................

(vi)

Texas v. Hopwood,

518 U.S. 1033 (1996).............................................................

Turic v. Holland Hospitality Inc.,

95 F.3d 1211 (6th Cir. 1996).................................................

United States v. Burke,

504 U.S. 229 (1992)...............................................................

United States v. Johnson,

457 U.S. 537 (1982)...............................................................

Wagner v. Taylor,

836 F.2d 578 (D.C. Cir. 1987)...............................................

Warth v. Seldin,

422 U.S. 490 (1975)...............................................................

Weathers v. Peters Reality Corp.,

499 F.2d 1197 (6th Cir. 1974)...............................................


 14,30,31,34


 3



 passim


 34


 13,15


 16,35


 12


 24



 3,18,19,20


 23


 26


 29,32




 22


 12


 24


 8


 19


 19


 31


 14



 25


 passim


 21,22,25,27


 21,23



 25


 27




 14,15


 23


 17


 14,15


 27


 3,16,17,30


 10


 4



 32


 26


 13


 32,34,35


 22



 17




 15



 17,31,33,34


 24



 32


 24


 1,19,19


 10,11,12,21


 23


 15


 15


 20



 6,28


 4,15,17,38




 4


 12


 12


 4


 7,28


 33


 7

CONSTITUTION

U.S. Const. Amend XIV...................................................................  5

RULES AND STATUTES

Fed. R. Civ. P. 23(a)..........................................................................  passim

Fed. R. Civ. P. 23(b)(1).....................................................................  passim

Fed. R. Civ. P. 23(b)(2).....................................................................  passim

Fed. R Civ. P. 23(b)(3)......................................................................  passim

42 U.S.C. 2000d (Title VI of the Civil Rights Act of 1964)..........  5

BOOKS

5 J. Moore, Moore's Federal Practice (3d ed. 1998)......................  21,22,23

H. Newberg & A. Conte, Newberg on Class Actions

(3d ed. 1992)...........................................................................  passim

(vii)

STATEMENT OF ISSUES PRESENTED

1.      Whether the putative class lacks standing to bring this action principally

for injunctive relief such that class certification under Rule 23(b)(2) is
unwarranted.

2.      Whether the benefit that the putative class seeks would accrue to the class

if the plaintiff prevailed in her individual damages action such that class
certification Under Rule 23(b)(2) is unnecessary.

3.      Whether the fact that all members of the putative class seek to impose the

same standard of conduct on defendants makes class certification under
Rule 23(b)(1)(A) inappropriate.

4.      Whether the absence of a limited fund or a legitimate analogous situation

makes class certification under Rule 23(b)(1)(B) inappropriate.

5.      Whether the prerequisites of Rule 23(a) are absent where the named

plaintiff would not have received the benefit that she seeks under a
system that did not consider the alleged unlawful factor.

6.      Whether bifurcation of "liability" from "damages" is forbidden when doing

so would effectively sever the issue of causation from the abstract
question of the lawfulness of defendants' behavior.

(viii)

PRINCIPAL AUTHORITIES

Allison v. Citgo Petroleum Corp.,

__F.3d__, No. 96-30489,1998 WL 483970 (5th Cir. Aug. 18, 1999).

Craft v. Memphis Light, Gas & Water Division,

534 F.2d 684 (6th Cir. 1976), aff'd, 436 U.S. 1 (1978).

East Texas Motor Freight System v. Rodriguez,

431 U.S. 395 (1977).

In re American Medical Systems Inc.,

75 F.3d 1069 (6th Cir. 1996).

Los Angeles v. Lyons,

461 U.S. 95 (1983).

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).

Steel Co. v. Citizens for a Better Environment,

118 S. Ct. 1003 (1998).

(ix)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
_____________________________________

BARBARA GRUTTER

             Plaintiff,

      v.

LEE BOLLINGER, et al.

             Defendants. _____________________________________

)
)
)
)     Civil Action No. 97-75928
)
)     Hon. Bernard Friedman
)
)     Hon. Virginia Morgan
)
)
)

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO CERTIFY
A CLASS ACTION AND TO BIFURCATE LIABILITY FROM DAMAGES

INTRODUCTION

Plaintiff seeks to transform her individual action into a class action. Defendants hereby oppose that effort, but that is not because defendants in any way shrink from defending the constitutionality of their admissions policies. To the contrary, defendants fully expect to prove that, as the Supreme Court held in Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265 (1978), the University of Michigan Law School 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 (opinion of Powell, J., joined in this part by Brennan, White, Marshall, and Blackmun, JJ.). The issue presented by plaintiff's motion, however, is not the constitutionality of defendants' admissions policies, but whether plaintiff or her proposed class, has standing to convert this case into an injunctive class action. They do not.

The class proposed by plaintiff is limited to those who -- in the past -- applied for and were denied admission to the University of Michigan Law School ("the Law School"), and who were allegedly disadvantaged by the Law School's policy of considering race as a factor in admissions. That class may seek only damages and does not have standing for injunctive relief. Accordingly, plaintiff s proposed class cannot be certified under Rule 23(b)(1) or (b)(2), which are addressed to injunctive classes and limited funds. And plaintiff does not seek certification under Rule 23(b)(3), which permits damages classes. This point bears repeating: plaintiff and the class she seeks to represent may only sue for damages -- not injunctive relief. There is no allegation that any of these purported class members will apply, or are even considering applying, to the Law School in the future. So although the Law School has every intention -- as binding precedent permits -- to continue its efforts to achieve meaningful diversity, including racial diversity, among its student body, there is no basis to believe that the members of plaintiff s purported class would be affected by that conduct.

Plaintiff, however, asks this Court to certify a class under Rule 23(b)(1) or (b)(2), as if it were a class principally seeking injunctive relief. But only future applicants are in a position to seek injunctive relief. Plaintiff s proposed class is made up of past applicants, with standing only to recover damages. Whatever her reason for not seeking certification under Rule 23(b)(3), one thing is clear: the square peg of plaintiff s damages class does not fit the round hole of Rule 23(b)(1) or (b)(2).

In addition, there is no need to certify this case as a class action. The Law School will of course comply with the results of the judicial process. The only injunctive relief that the plaintiff class could properly obtain would be the opportunity to re-apply for admission

-2-

under a constitutionally permissible admissions policy. If plaintiff were to prevail on the merits of her individual damages action -- and the Law School's admissions policy were ultimately found to be unlawful -- the plaintiff class would enjoy precisely that measure of relief. As the Sixth Circuit has noted, where the plaintiff class would not obtain any benefit from class treatment, there is no reason to certify a class action. See Craft v. Memphis, Light, Gas & Water Div., 534 F.2d 684, 686 (6th Cir. 1976), aff'd, 436 U.S. I (I 978).

At bottom, plaintiff's effort to certify a class seeking damages, under the provisions that are designed for classes seeking injunctive relief, seeks to paper over the question whether the single named plaintiff was in fact injured by the Law School's consideration of race in the admissions process. The same is true of the suggestion that this Court may determine the legality of the Law School's admissions policy before it decides whether that policy caused the plaintiff any harm. In both instances, the plaintiff is urging this Court to rush into the abstract question whether the Law School may consider race as a factor in admissions, without pausing to inquire whether that consideration had any concrete effect on the rights of the single named plaintiff. The law does not allow this, requiring, instead, that the plaintiff "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct." Allen v. Wright, 468 U.S. 737, 751 (1984). And each element of standing must be supported "with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Indeed, the Supreme Court recently reiterated that federal courts may not decide an abstract legal question, without first assuring itself that such a resolution

-3-

"promise[s] ... concrete benefit to the plaintiff." Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1017 n.5 (1998). Doing otherwise would carry "the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers." Id. at 1012. As Justice Harlan put a similar point, federal courts' "awesome power" to announce constitutional rules is only "correlative" to the courts' obligation to resolve specific cases and controversies. Mackey v. United States, 401 U.S. 667, 678 (1971) (Harlan, J., dissenting). See also United States v. Johnson, 457 U.S. 537, 547 (1982) (adopting Justice Harlan's Mackey dissent).

The question that this case may ultimately be about-whether "it is constitutional for a public college or graduate school to use race or national origin as a factor in its admissions process"-is indeed "an issue of great national importance," Texas v. Hopwood, 518 U.S. 1033 (1996) (statement of Ginsburg, J., joined by Souter, J.). While the "prompt resolution of the merits" of an important question of federal law may be desirable, the Supreme Court recently admonished in Steel Company that "it is not as important as observing the constitutional limits set upon courts in our system of separated powers." 118 S. Ct. at 1020. For that reason, plaintiffs motion-which invites this Court to leapfrog the required predicate, and rush to the merits of an issue "of great national importance"-must be declined.

FACTUAL BACKGROUND

The Law School enrolls, each year, a talented and diverse class of students. In order to do so, the Law School considers, among a broad array of factors, whether, and how,

-4-

an applicant will contribute to the Law School's diversity -- including its racial and ethnic diversity.

Plaintiff applied in 1996 for admission to both the University of Michigan Law School and Wayne State University Law School. She was denied admission to the University of Michigan Law School. After being admitted to Wayne State University Law School, she decided not to attend. See Complaint (filed Dec. 3, 1997) ("Complaint") ¶ 4; Plaintiff's Objections and Answers to Defendants' First Set of Interrogatories (served Aug. 28, 1998), Interrogatory No. 1, (Ex. A) pp. 2-3.

Plaintiff now contends that the Law School's consideration of race as a factor in admissions "caused" her rejection. Complaint ¶ 26. She further contends that insofar as the Law School's efforts to achieve a diverse student body include the consideration of an applicant's race or ethnicity, such efforts violate the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d. Complaint ¶ 1.

ARGUMENT

Introduction and Summary

Plaintiff's motion to certify a class, which relies on the untested allegations of her complaint, asks this Court to certify a class consisting of "all persons who:
(A) applied for and were not granted admission to the University of
      Michigan Law School for the academic years since (and
      including) 1995 until the time that judgment is entered herein;
      and

-5-

(B) were members of those racial or ethnic groups including
      Caucasian, that Defendants treated less favorably in
      considering their applications for admission to the Law
      School."
1/

Plaintiff's Motion For Class Certification and for Bifurcation of Liability and Damages Trials (filed July 30, 1998) at 1. See also Memorandum of Law in Support of Plaintiff's Motion For Class Certification and for Bifurcation of Liability and Damages Trials (filed July 30, 1998) ("Memorandum") at 1.

As the en banc Sixth Circuit recently emphasized, a "district court may not certify any class without 'rigorous analysis' of the requirements of Rule 23." Sprague v. General Motors Corp., 133,F.3d 388, 397 (6th Cir.) (en banc), cert, denied, 118 S. Ct. 2312 (1998). "No class that fails to satisfy, all four of the prerequisites of Rule 23(a) may be certified, 2/ and each class meeting those prerequisites must also pass at least one of the tests set forth in Rule 23(b)." Id See also In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). While a court should not undertake to adjudicate the merits in deciding whether to certify a class, a "decision on class certification cannot be made in a vacuum," and "some inspection of the circumstances of the case is essential to determine whether the

__________________________

1/   It is noteworthy that the purported class that plaintiff now moves to certify is much narrower than the class described in paragraph 10 of the Complaint, which also contained, in addition to the disappointed non-minority applicants described above, all non-minorities who were "ready and able" to apply, but had not applied, to the Law School.

2/   Rule 23(a) provides that "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."

-6-

prerequisites of Federal Civil Rule 23 have been met." Wagner v Taylor, 836 F.2d 578, 587 (D.C. Cir. 1987). For that reason, the Sixth Circuit explained in In re American Medical Systems that "ordinarily the determination should be predicated on more information than the pleadings will provide," and that typically the "parties should be afforded an opportunity to present evidence on the maintainability of the class. action." 75 F.3d at 1079 (quoting Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir.1974)).

Rule 23(b)

Plaintiff "seeks to maintain this class [action] pursuant to Federal Rule of Civil Procedure 23(b)(1) & (2)." Memorandum at 1. The different types of class actions under Rule 23(b) are categorized according to the "nature or effect of the relief being sought." Allison v. Citgo Petroleum Corp., F.3d . No. 96-30489,1998 WL 483970, *7 (5th Cir. Aug. 18, 1998). Specifically:
Rule 23(b)(1) addresses cases where separate individual actions would risk imposing "incompatible standards of conduct" or would, as a practical matter "be dispositive of the interests" of non-party class members. It is "designed to avoid prejudice to the defendant or absent class members if individual actions were prosecuted in contrast to a class suit yielding a unitary adjudication." 1 H. Newberg & A. Conte, Newberg on Class Actions 4.01 (3d ed. 1992) ("Newberg").

Rule 23(b)(2) is designed to address situations where "broad, class-wide injunctive or declaratory relief is necessary." Allison, 1998 WL 483970 at *7. It may be invoked only where claims for injunctive or declaratory relief

-7-

predominate over claims for damages. Fuller v. Fruehauf Trailer Corp., 168 F.R.D. 588, 603 (E.D. Mich. 1996).

Rule 23(b)(3), which plaintiff does not invoke, permits class-wide litigation for money damages. Allison, 1998 WL 483970 at *8. This provision makes class actions suitable only "when a class action is superior to other available methods for adjudication of the controversy and common questions predominate over individual ones." 1 Newberg 4.01.

Class treatment is not warranted here. Plaintiff argues primarily that a class should be certified under Rule 23(b)(2). But Rule 23(b)(2) certification is appropriate only where a claim for injunctive relief predominates over any claim for monetary damages. The purported class, as plaintiff has chosen to describe it, is made up only of those who applied to the Law School in the past. The proposed class therefore excludes those who will apply in the future and therefore face "imminent" risk of future injury that might be prevented by an injunction. Plaintiffs proposed class therefore has standing only to seek damages, and cannot be awarded injunctive relief Rule 23(b)(2) is thus unavailable.

Plaintiff also suggests that certification might be appropriate under Rule 23(b)(1). There is no merit to that suggestion, however, as Rule 23(b)(1)(A) -- like Rule 23(b)(2) -- is limited to cases involving primarily equitable relief Rule 23(b)(1)(B) is also inapplicable, because this case does not involve a "common pool" of money that needs to be divided among the members of the plaintiff class.

-8-

Rule 23(a)

In addition to failing to fall within any of the Rule 23(b) categories, class certification is also inappropriate because it cannot be determined whether plaintiff satisfies the Rule 23(a) requirements that her claims be typical of the class members' and that she adequately represent the class members' interests. Specifically, if plaintiff would not have been admitted to the Law School even under an admissions system that did not include the conscious consideration of race, she lacks standing to bring this action, and cannot represent unnamed class members who might have standing. Thus, even if plaintiff did satisfy the requirements of Rule 23(b), "it would be inappropriate to certify the class until further discovery reveals whether plaintiff might have been admitted to the Law School under an admissions system that did not include any "impermissible" consideration of race.

Bifurcation

Last, plaintiff asks this Court to sever the issue of "liability" from "damages," but plainly includes the question whether the plaintiff was injured by the Law School's consideration of race as a factor in admissions within her meaning of "damages." While defendants do not object to bifurcating genuine damages issues from the question of liability, this Court cannot determine any question of liability without considering the question of causation-whether defendants' alleged "discrimination" caused plaintiff any harm. Defendants therefore submit that the question whether plaintiff would have been admitted to the Law School under a "permissible" admissions system must be decided in the initial phase of the trial.

-9-

I.      CERTIFICATION UNDER RULE 23(b)(2) IS INAPPROPRIATE, AS
         PLAINTIFF'S PROPOSED CLASS SEEKS DAMAGES, NOT
         INJUNCTIVE RELIEF                                                                             

A. Rule 23(b)(2) Is Available Only For Classes Seeking Primarily
     Injunctive Relief.

Rule 23(b)(2) provides that a class action may be maintained where "final injunctive relief or corresponding declaratory relief with respect to the class as a whole" is appropriate.  3/  Certification under Rule 23(b)(2) is reserved for those cases in which a class of plaintiffs is primarily seeking injunctive or declaratory relief. See Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976) (permitting certification under Rule 23(b)(2) where "[a]ppellant's primary prayer was for injunctive relief); Lukenas v. Bryce's Mountain Resort Inc., 538 F.2d 594, 596 (4th Cir. 1976) ("It is a monetary judgment that the plaintiffs seek and that is obvious from the phrasing of their prayer. Such an action is not suitable for treatment as a class action under Rule 23(b)(2)").

While a claim for monetary relief does not by itself preclude certification under Rule 23(b)(2), it is available only where the monetary awards sought are "either (1) equitable in nature or (2) secondary or ancillary to the general scheme of injunctive or declaratory relief sought by the plaintiffs." 1 Newberg 4.14. Where claims for monetary damages

_________________________________

3/  "An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition * * * (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed R. Civ. P. 23(b)(2).

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predominate, however, certification under Rule 23(b)(2) is inappropriate. Allison, 1998 WL 483970 at *8.

The case law further makes clear that claims for monetary damages predominate over equitable relief unless the monetary relief is "incidenta to the requested injunctive or declaratory relief." Allison, 1998 WL 483970 at *9 (emphasis added); Senter, 532 F.2d at 525. "By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief." Allison, 1998 WL 483970 at *9.

B. Plaintiff's Proposed Class Seeks Primarily Monetary Damages.

There can be no question that the plaintiff and the class she has described, which is limited to those who applied for and were denied admission in the past, seek primarily monetary damages. For example, plaintiff contends that she has "suffered humiliation, emotional distress, and pain and suffering as a consequence of her application being rejected," Complaint ¶ 26, and that she has separately "suffered humiliation, emotional distress, and pain and suffering upon learning that defendants had discriminated against her on the basis of her race." Id. She seeks to recover "compensatory and punitive damages, in an amount to be proven at trial." Complaint at p. 11.

These alleged damages cannot be described as "incidental" to any claim for injunctive or declaratory relief, because such damages may not, as a matter of law, flow directly from a determination that injunctive or declaratory relief is warranted. To the contrary, further evidence must be presented to show an entitlement to the claimed damages. Indeed, the Sixth Circuit has expressly held that "emotional distress" damages, such as those

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plaintiff seeks to recover, "will not be presumed, and must be proven by 'competent evidence.'" Turic v. Holland Hospitality Inc., 85 F.3d 1211, 1215 (6th Cir. 1996) (citing Carey v. Piphus., 435 U.S. 247, 263-64 & n.20 (1978)). See also Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1259 (6th Cir. 1985) (plaintiff claiming emotional distress must come forward with evidence demonstrating "distress injury" with sufficient "specificity").

To prove these claims, plaintiff will therefore be required to present witnesses and evidence demonstrating her injury. Accordingly, these damages do not "flow directly from liability," Allison, 1998 WL 483970 at *9, and thus are not "incidental" to a claim for declaratory or injunctive relief Class certification under Rule 23(b)(2) is thus inappropriate.

In fact, plaintiff's own actions demonstrate that she views her claim as one for compensatory damages, rather than for injunctive or declaratory relief. Specifically, by filing a demand for jury trial with respect to her damages claims-which is appropriate only in cases seeking legal damages, not equitable or declaratory relief-plaintiff effectively concedes that treatment under Rule 23(b)(2) would be inappropriate. See Demand For Jury Trial (filed Jan. 6, 1998). 4/

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4/   4. The predominance of plaintiffs claims for compensatory damages thus distinguishes this case from other civil rights actions, where certification under Rule 23(b)(2) is generally proper. See Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). In the typical employment civil rights action where a plaintiff class is seeking equitable relief, such as back pay (which is a form of equitable restitution, see United States v. Burke, 504 U.S. 229, 238-39 (1992)), class treatment under Rule 23(b)(2) is generally appropriate. Because plaintiffs suit is one for legal compensatory and punitive damages, however, it is wholly unlike the typical suit challenging "class-wide discrimination" for which treatment under Rule 23(b)(2) is "particularly well suited." Senter, 532 F.2d at 525.

Plaintiff's claim for punitive damages also seeks a form of "legal" damages, not equitable relief. See Moll v. Parkside Livonia Credit Union, 525 F. Supp. 786, 793 (E.D. Mich. 1981) ("Punitive damages obviously are a legal rather than equitable remedy."). While plaintiff seems to argue that her claim for punitive damages renders this case more suitable for class certification under Rule 23(b)(2) than it would be without this claim, see Memorandum at 13-15, precisely the opposite is true, because the predominance of plaintiff's claim for legal damages defeats Rule 23(b)(2) certification. Plaintiff's further suggestion that her punitive damages claim could support certification under Rule 23(b)(3) is also misplaced, as plaintiff has not moved this Court to certify a Rule 23(b)(3) class. And in any event, Rule 23(b)(3) certification is not warranted here. See infra at 2O n.10.

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C. Plaintiff And Her Proposed Class Lack Standing Even To Seek
     Injunctive Relief - Let Alone To Suggest That Such Relief
     "Predominates."

In plaintiff's motion for class certification, she states that she seeks to maintain this suit as a class action on behalf of those applicants who -- in the past -- "applied for and were not granted admission" to the Law School. Memorandum at 1. While the Complaint in this action described the putative class more broadly as including those who had not applied to the Law School, but were "ready and able" to do so, see Complaint ¶ 10, the motion now before this Court excludes these future applicants from the class, limiting it to those "who applied for and were not granted admission." Memorandum at 1. See also supra at 6 n. 1.

This limited proposed class lacks standing to seek injunctive relief. Plaintiff herself acknowledges no specific present intention to seek future admission to the Law School; nor is there any allegation that the members of the plaintiff class have an immediate intention of applying for admission. The Supreme Court and the Sixth Circuit have made clear that standing to seek damages is separate from standing to seek injunctive relief, and that a plaintiff must separately have standing to obtain each element of relief sought. As the Sixth Circuit noted in Brock v. International Union, 889 F.2d 685, 692 (6th Cir. 1989), the

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"Supreme Court has instructed that 'for the purposes of assessing the likelihood' that a complaining party will again be subjected to a particular action, the courts 'generally have been unwilling to assume that the party seeking relief will repeat the type of activity which was the focus of the judicial complaint and that would once again place him or her at risk of that injury'" (quoting Honig v. Doe, 484 U.S. 305, 320 (1988)).

For example, in Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court held that a plaintiff who alleged that he was unlawfully placed in a chokehold by the police in the past lacked standing to enjoin the police practice of using chokeholds. "Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.... That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat [of future injury]." Id. at 105. See also Adarand Constructors Inc. v. Pena, 515 U.S. 200, 210-11 (1995) ("Adarand's allegation that it has lost a contract in the past because of a subcontractor compensation clause of course entitles it to seek damages for the loss of that contract ... [But] the fact of past injury, while presumably affording the plaintiff standing to claim damages, does nothing to establish a real and immediate threat that he would again suffer similar injury in the future") (internal quotations, brackets, and ellipses omitted); Kardules v. Columbus, 95 F.3d 1335, 1347 (6th, Cir. 1996) ("Because Lyons did not show that he was likely to be subjected to another

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chokehold in the future, the Supreme Court concluded that Lyons lacked standing to seek injunctive relief."). 5/

In addition, the plaintiffs own inability to seek injunctive relief necessarily bars her from representing an injunctive class, as a named plaintiff without standing to seek injunctive relief is not typical of, and cannot adequately represent, an injunctive class. See In re American Med. Sys., supra, 75 F.3d at 1083 ("The adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members."). Plaintiff's deposition testimony makes clear that she lacks any immediate intention of applying to the Law School, stating at most a conjectural and general intent to apply in the future. See Kardules, 95 F.3d at.1347 ("the injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical'") (citing Lyons, 461 U.S. at 101-102). Indeed, plaintiff's testimony is fairly read to disclaim any present intention of applying to the Law School under an admissions system that includes the consideration of race as a factor:
Q: And do you plan to reapply to the University of Michigan Law School?
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5/   Plaintiff's reliance on the decision to certify a class in Smith v. University of Washington Law School, 2 F. Supp.2d 1324 (W.D. Wash. 1998), is misplaced. In certifying a Rule 23(b)(2) class, the Smith court premised its decision on a Ninth Circuit opinion which holds that "plaintiffs need not allege a credible threat of future injury in order to seek injunctive relief as long as they also have a claim for damages involving the same operative facts and legal theory." Id. at 1339 (citing Smith v. City of Fontana, 818 F.2d 1411, 1423 (9th Cir. 1987), and Nava v. City of Dublin, 121 F.3d 453, 456 (9th Cir.1997)). This line of Ninth Circuit precedent was repudiated by the Supreme Court's Steel Company decision, 118 S. Ct. at 1020, and has never been embraced by the Sixth Circuit. See Brock, 889 F.2d at 692.

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A: If tomorrow I believed I would receive equal treatment in the admission process I would apply. Q: So you don't have a present intention of applying? A: I do not have a specific date in which I intend to do that. It is my desire to go. *** Q: [W]hile you may choose to apply at some point in the future you have no present intention of doing so, is that accurate? A: I do not have a specific date set in which to do that, no. Q: You do not have a specific intention to do that right now, do you? A: I have not decided.
B. Grutter Deposition (Ex. B) 118:18 - 24, 143:13 - 21.66/

As the Supreme Court held in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), "[s]uch 'some day' intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the 'actual or imminent' injury that our cases require" Id. at 564 (quotation omitted) (emphasis in original). See also Brunet v. City of Columbus, 1 F.3d 390, 396 (6th Cir. 1993) ("If the injury is not actual, but imminent, the plaintiff cannot simply allege possible injury at some indefinite, future time.").

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6/   See also B. Grutter Deposition (Ex. B) 142:17 - 143:13. Plaintiff's husband -- the only person plaintiff identified as having knowledge relating to her alleged damages, see Plaintiff's Objections and Answers to Defendants' First Set of Interrogatories (served Aug. 28, 1998), Interrogatory No. 3, (Ex. A) p. 4 -- echoed this point at his deposition. Q: [H]ave you talked to her about reapplying to the University of Michigan? A: Yeah. Yes. Q: What has she said about that possibility? A: That given the admissions process as it's in place now, it doesn't seem like there's much point to it.

P. Grutter Deposition (Ex. C) 50:1 - 9.

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The requirement that the plaintiff allege that she will be subject to the challenged action in the future is "no less true with respect to class actions than with respect to other suits. That a suit may be a class action adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Lewis v. Casey, 518 U.S. 343, 357 (1996) (internal quotations and ellipses omitted). See also Steel Co., 118 S. Ct. at 1020 ("Because respondent alleges only past infractions ... and not a continuing violation or the likelihood of a future violation, injunctive relief will not redress its injury."); Natural Resources Defense Council v. Pena, __F.3d__, No. 97-5253, 97-5254, 1998 WL 396244 at *10 (D.C. Cir. July 17, 1998) (same). In short, this class is not an injunctive class, because it can neither seek nor obtain injunctive relief.7/

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7/The allegation in the Complaint that plaintiff is "ready and able" to apply, Complaint 10, does not suggest an "imminent" threat of being denied admission. The Supreme Court's opinion in Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993), is not to the contrary, because that challenge to a minority set-aside in contracting involved a very different type of Article III "injury-in-fact," see infra at 31-35. In any event, more recent precedent has re-stated the requirement that "allegations of future injury be particular and concrete." Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1020 (1998). And as the Supreme Court reiterated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 & n.2 (1992), only those who face an imminent threat of unlawful conduct have standing to seek injunctive relief. As in Lujan, "imminence" is "stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff's own control. In such circumstances, we have insisted that the injury proceed with a high degree of immediacy." Id.

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D. Even If The Purported Class Had Standing To Seek Injunctive
     Relief, Certification Under Rule 23(b)(2) Would Still Be
     Unnecessary.
Even if the proposed class did have standing to seek injunctive relief, which it does not, and even if the class's claim for declaratory or injunctive relief predominated over its damages claims, which they do not, there still would be no reason to certify this class under Rule 23(b)(2). The Sixth Circuit has ruled that where an adjudication of an individual plaintiff's claim will provide the class with whatever injunctive relief it is entitled to receive, there is no reason a class ought to be certified. See Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684, 686 (6th Cir. 1976), aff'd, 436 U.S. 1 (1978). This is precisely such a case.

The Law School is deeply committed to achieving diversity in its student body. Defendants firmly believe that the Supreme Court was correct in stating that institutions of higher education have a "substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." Bakke, 438 U.S. at 320. 8/ Defendants will vigorously defend against this lawsuit. See Defendants Response to Motion to Intervene (filed Apr. 23, 1998).

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8/   As defendant Bollinger and Provost Nancy Cantor have observed elsewhere, this lawsuit "is at the center of a great public debate over one of the most important issues of our time: how our governing constitutional principles permit us to use race to achieve a truly integrated society." Lee Bollinger and Nancy Cantor, The Educational Importance of Race, Wash. Post, Apr. 28, 1998 at A17; see also Statement of Dean Jeffrey S. Lehman, University of Michigan Law School (this case is part of a "nationwide campaign to change the way the Constitution is applied to universities") (available at http://www.umich.edu/~newsinfo/ Admission/lehman.html).

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At the end of the day, however, defendants will of course respect the results of the judicial process. If it is ultimately determined that the educational interest in achieving a diverse student body does not justify the consideration of race in the admissions process (or if it is determined that the Law School has considered race in a way that somehow runs afoul of Bakke), defendants would comply with that judgment. Cf. Bakke, 438 U.S. at 318-19 ("good faith [of university officials] would be presumed in the absence of a showing to the contrary"). Any future applicant who would benefit from any injunctive relief this Court might order would therefore receive that same benefit (the opportunity to be considered for admission under a system that complied with the Court's determination) simply by virtue of having plaintiff Grutter's individual claims for damages adjudicated on the merits.

The Sixth Circuit recognized exactly this principle in Craft, where it found that class certification was inappropriate because "no useful purpose would be served by permitting this case to proceed as a class action," Craft, 534 F.2d at 686. As another district court in the Sixth Circuit has observed, "[t]he rule in this circuit seems to be well-settled that certification of an action as a class-action under Rule 23(b)(2), is inappropriate where the injunctive and declaratory relief sought, to the extent granted, would automatically accrue to the benefit of the class members." Green v. Williams, 94 F.R.D. 238, 241 (E.D. Tenn. 1980). 9/ While plaintiff premises the "need" for a class action on the possibility that

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9/See also Gray v. International Brotherhood of Elec. Workers, 73 F.R.D 638, 640-41 (D.D.C. 1977) ("[T]here exists no need for this case to be certified as a class action. This Court has consistently and emphatically adhered to the view that when, as here, the relief being sought can be fashioned in such a way that it will have the same purpose and effect as a class action, the certification of a class action is unnecessary and inappropriate. This view, although supported by limited (yet prevailing) precedent when first articulated by this Court, has now become a well-settled rule employed by numerous district courts, discussed by at least one commentator, and recognized by several circuit courts of appeal.") (citing, inter alia, the Sixth Circuit's opinion in Craft; other quotations, citations and footnotes omitted); Spirit v. Teachers Ins. & Annuity Ass'n, 416 F. Supp. 1019, 1024-25 (S.D.N.Y. 1976) (same).

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plaintiff's claim will moot out, Memorandum at 17, it is only plaintiff's claim for injunctive relief that could moot. As explained above, because the plaintiff and her "class" would receive the benefit of any injunction by litigating the damages claim on the merits, this concern is misplaced. In fact, certifying plaintiff's class would simply "complicate, delay, and prejudice" the adjudication of the underlying legal issues. See Pl's Mem. in Opp. to Mot. For Intervention (filed April 22, 1998) at 18. 10/

II.      CERTIFICATION UNDER RULE 23(b)(1) IS INAPPROPRIATE      

A. Rule 23(b)(1)(A) Does Not Authorize Certification Because
     This Lawsuit Primarily Seeks Damages, And, Therefore,
     Individual Lawsuits By Putative Class Members Pose No Risk
     of Imposing Irreconcilable Standards Of Conduct
     On Defendants.
Maintenance of a class action under Rule 23(b)(1)(A) requires risk of "inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class." Fed. R. Civ. P. 23(b)(1)(A). This provision necessarily applies only where injunctive relief is available;

______________________________

10/   Because the class that plaintiff seeks to certify is primarily seeking damages, the only possible route by which this class could have been certified would have been by Rule 23(b)(3), which would require-as Due Process would seem to mandate-that individual plaintiffs receive notice and the opportunity to opt out of the class (and thereby control their own lawsuits). Defendants do not believe that the requirements of Rule 23(b)(3), namely, that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members," Fed. R. Civ. P. 23(b)(3), and that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy," id., are satisfied here. There is no need to consider the matter further here, however, since plaintiff does not seek certification under Rule 23(b)(3). See Memorandum at 16 n.4.

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otherwise, there is no basis for a court affirmatively to order a party to comply with a "standard of conduct." See In re Jackson Lockdown/MC0 Cases, 107 F.R.D. 703, 713 (E.D. Mich. 1985) ("[s]ection (b)(1)(A) is designed for class actions involving equitable remedies" as opposed to damages). It does not apply in involving only damages, because the possibility that some plaintiffs might recover damages, while others might not, does not pose the prospect that defendants would face the conflicting, court-ordered relief that Rule 23(b)(1)(A) was crafted to prevent. See In re Bendectin 749 F.2d at 305; see also 5 J. Moore, Moore's Federal Practice 23.41[5][a] at 23-162 (3d ed. 1998) ("Moore"). But neither plaintiff nor her purported class face any immediate risk of future injury. They therefore lack standing to seek injunctive relief. See supra at 11 - 17. Accordingly, Rule 23(b)(1)(A) has no application to this case. It is of only academic interest. 11/

In any event, even if plaintiff did have standing to obtain injunctive relief, the type of injunction that would be appropriate would not justify the invocation of Rule 23(b)(1)(A). Specifically, plaintiff would need to demonstrate not only a likelihood of differing results in individual lawsuits, but also a likelihood that such variation would trap defendants in a Catch-22 dilemma in which compliance with one judicial order necessarily would entail defiance of another. See Moore 23.41[2][a] at 23-155. The Sixth Circuit has adopted this interpretation of 23(b)(1)(A), requiring more than mere potential variation among suits brought

___________________________

11/   Indeed, the case law under Rule 23(b)(1)(A) follows the same analysis as Allison supra, 1998 WL 483970 at *9, and Senter, supra, 532 F.2d at 525, with the touchstone being whether the class seeks primarily damages or equitable relief. See In re Jackson, supra, 107 F.R.D. at 710 (allowing certification only where injunctive relief was the "principal focus" of the claim).

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by putative class members. See In re Rendectin Prod, Liab. Litig., 749 Fld 300, 305 (6th Cir. 1 9g4) (issuing writ of mandamus to decertify class because, in part, "[t]he fact that some plainfiffs may be successful in their suits against a defendant while others may not is clealy not a ground for invoking Rule 23(b)(l)(A)"); See also Employers Inc., of Wausau v. FDIC, 112 F.R.D. 52, 55 (E.D. Tem. 1986) "the kind of incompatibility which Rule 23(b)(1)(A) is designed to prevent is something greater than inconsistent adjudications").

Certification under Rule 23(b)(1)(A) is appropriate only where there is a risk that "incompatible standards of conduct" will be imposed on the party opposing the class. Fed. R. Civ. P. 23(b)(1)(A). It "is designed to protect against the nonclass party's being placed in a stalemated or conflicted position and is applicable only to actions in which there is not only a risk of inconsistent adjudications but also where the nonclass party could be sued for different and incompatible tive relief." Employers Ins, of Wausau 112 F.R.D. at 54 (emphasis omitted). See also Moore 23.41[2][a] at 23-155-56 ("Rule 23(b)(1)(A) is satisfied only if inconsistent judgments in separate suits would place the party opposing the class in the position of being unable to comply with one judgment without violating the terms of another judgement"). But even plaintiff does not suggest that she is entitled to have the Court order the Law School to adopt any particular admissions policy. She, and the members of the putative class, contend only that the Law School should be forbidden from considering race (or considering it in a particular way). And no one in the putative class seeks an injunction requiring the Law School to consider race. Cf. PlaintiiTs Memorandum In Opposition To Motion To Intervene (filed Apr. 22, 1998) at 7 n.2 C'What defendants are allegedly permitted to do is not the same as what they are required to do.") (emphasis in original). Accordingly, there

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is no risk that defendants might face the kinds of conflicting awards of affirmative relief with which Rule 23(b)(l)(A) is concerned. 12/

If there were merit to plaintffrs underlying cwenge to the Law School's admissions policy, the possibility that only certain members of the class might prevail would not impose "incompatible standards." Rather, such a result would be expected in light of differences mnong the putative class members' individual circumstances. See Levels v. Akzo Nobel Salt, Inc., 178 F.R.D. 171, 180 (N.D. Ohio 1998) ("Because the conduct each Plaintiff complains of varies with individual circumstances, the Court finds no risk of inconsistent adjudications"); Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90,99 (W.D. Mo. 1997) (denying certification of 23(b)(1)(A) class seeking medical monitoring because "the relief in question is fraught with individualized issues"). As the court observed in In re Jackson, supra, 107 F.R.D. at 71 1, "[t]he Rule 23(b)(1)(A) class action is designed to avoid inconsistent adjudications in identical fact situations." The rule does not apply simply by virtue of the fact that some class members may be entitled to relief, while others may not. See Newberg 4.04 at 4-14 ("The most commonly used and accepted limitation on Rule 23(b)(1)(A) is that this

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12/   Unlike the cases on which plaintiff relies, this is not a situation where the government is required to afford "unitary treatment" -- without consideration of individual circumstances -- to an entire class. Both National Tresury Employees Union v. Reagan, 509 F. Supp. 1337 (D.D.C. 1981), and Cullen v. New York State Civ. Serv, Comm'n, 435 F. Supp. 546 (E.D.N.Y. 1977), cited by plaintiff, involved across-the-board government policies (a hiring freeze and a mandatory contribution scheme for county employees) that were to be applied consistently to an entire class of people without individualized case-by-case inquiry. $ee 5 J. Moore, Moore's Federal Practice 23.41[2][a] & [4] at 23-156 & 159 (3d ed. 1995) (certification under 23(b)(1)(A) may be appropriate, even if separate suits would not leave the party "unable to comply with one judgment without violating the terms of another judgment," where the party opposing the class must provide "unitary treatment" to all class members).

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subdivision was not designed to cover class situations where some members recover and others do not"). In this case, potential plaintiffs' "fact situations" are hardly identical; in fact they are unique. Thus, this case does not fiLU widm the intended design of 23(b)(I)(A).

B. Certification Under Rule 23(b)(1)(A) Should Be Denied When
     The Party Opposing The Class Waives Protection Against The
     Risk Of Incompatible Adjudications.
Even if defendants could face convicting judicial orders, defendants can decline to employ the shield of Rule 23(b)(l)(A). As plaintiffs have recognized, Rule 23(b)(I)(A) "views the class determination from the perspective of the party opposing the class." See Memorandiun at 11. See also I Newberg 4.03 at 4-11. As the intended beneficiary of 23(b)(1)(A), the class-opposing party can waive the protection it affords. See Pettco Enter. v. White, 162 F.R.D. 151, 155 (M.D. Ala. 1995) ("it is inappropriate to certify a Rule 23(b)(1)(A) class over objection of the party opposing the class"); Fogie v. Rent-A-Center, 867 F. Supp. 1398, 1403 (D. Minn. 1993) ("Rule 23(b)(1)(A) was designed to protect the party opposing the class and the defendant may waive it by opposing cerdfication); Pruitt v. Allied Chem. Corp., 85 F.R.D. 100, 106-07 (E.D. Va. 1980) ("Subsection (b)(1)(A) is designed to protect the interests of the party opposing the class. Where that party does not seek the protection of a (b)(1)(A) class action ... the availability of the class action asserted under Rule 23(b)(1)(A) is questionable."); Chmieleski v. City Prods. Corp., 71 F.R.D. 118, 155 (W.D. Mo. 1976) ("[D]efendants in this action[] have vigorously opposed certification of a class under Rule 23(b)(1)(A) and thereby have declined the protection afforded to them by that provision of Rule 23.").

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C. Plaintiffs' Application of the "Limited Fund" Rationale For
     Certification Under Rule 23(b)(1)(B) To This Case Is
     Misplaced.
Rule 23(bXl)(B) was intended to protect the proportionate interests of plaintiffs with respect to each other. It permits certification when suits by individual plaintiffs "would as a practical matter be dispositive of the interests of the other members ... or substantially impair or impede their ability to protect their interests." Fed. R. Civ. P. 23(b)(1)(B). As plaintiff acknowledges, the "most common use of subsection (b)(l)(B) class actions is in limited fund cases." 1 Newberg, 4.09 at 4-31. See Memorandum at 12. A limited fund is defined in monetary terms -- "a fixed asset or piece of property ... in which all class members have a preexisting interest, and an apportionment or determination of the interests of one class member cannot be made without affecting the proportionate interests of other class members similarly situated." 1 Newberg 4.09 at 4-31, 4-33.

Certification under 23(b)(1)(B) under a limited fund rationale is unjustified in this case. The Sixth Circuit has only permitted certification of 23(b)(1)(B) "limited fund" classes on proof of a finite monetary fund or financial asset from which plaintiffs can recover. 5ee, e.g., In re Bendectin, 749 F.2d at 305; In re Rio Hair Naturalizer Prod. Liab. Litig., No. MDL 1055, 1996 WL 780512 at *4 (E.D. Mich. Dec. 20, 1996) (identifying the Sixth Circuit test for a limited fund as "[w]hether there is a substantial probability ... that if damages were awarded, the claims of earlier litigants would exhaust the defendants' assets") (quoting In re Agent Orange Prod. Liab. Litig., 100 F.R.D. 718, 726 (E.D.N.Y. 1983), aff'd., 818 F.2d 145 (2d Cir. 1987)).

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Plaintiff relies heavily on the Advisory Committee's Note to Rule 23(b)(l)(B), which contemplates the possibility that class certification under Rule 23(b)(1)(B) might be appropriate in the absence of a limited fumd. Specifically, plaintiff relies on this language to suggest that -- because there are a limited number of applicants whom this Court might order the Law School to admit, see Memorandum at 13 -- class certification is appropriate so that this Court may have before it the law school applications of the several thousand members of the ostensible class, and on that basis decide which of those class members should be ordered admitted to the University of Michigan Law School.

This argument thus proceeds from the premise that, even if this Court were to (1) certify a class, (2) forbid the consideration of race, and (3) grant class-wide injunctive relief, the Court would do more than simply forbid defendants from considering race (or considering it in a particular manner) in making future admissions decisions. Rather, plaintiff apparently envisions that this Court would play the role of Assistant Dean and Director of Admissions, divvying up the "limited fund" by reviewing each of the class members' law school applications, and deciding which class members should be admitted to the Law School. There is no conceivable basis for such relief. Cf. Missouri v. Jenkins, 515 U.S. 70, 102 (1995) ("On remand, the District Court must bear in mind that its end purpose is not only 'to remedy the violation' to the extent practicable, but also 'to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.'") (citations omitted); DiLeo v. Board of Regents of the Univ. of Colorado, 590 P.2d 486, 489 (Colo. 1978) ("It is not

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the proper fimction of a court to establish an admission program for a university, nor to rewrite the program according to its own notions") 13/

III.    PLAINTIFF CANNOT SHOW THAT THE REQUIREMENTS
         OF RULE 23(2) ARE SATISFIED AT THIS STAGE OF THE
         LITIGATION                                                                                       

Even if class certification were appropriate under Rule 23(b)(1) or (b)(2) -- which it is not for the reasons set forth in the preceding Points I and II -- it would nevertheless be inappropriate to certify plaintiffs class at this time, before this Court has an opportunity to determine whether plaintiff satisfies the requirements of Rule 23(a). Specifically, a central purpose of Rule 23(a) is to assure that the named plaintiff be a member of the class she seeks to certify. This requirement is reflected in Rule 23(a)'s demand that the "claims or defenses of the representative parties are typical of the claims or defenses of the class," and Rule 23(a)(4)'s requirement that "the representative parties will fairly and adequately protect the interests of the class." This determination necessarily requires an inquiry into the surrounding facts. See In re American Med. Sys., Inc., supra, 75 F.3d at 1079 ("ordimrily the determination should be predicated on more information than the pleadings will provide") (citation omitted); Love v. Turlington, 733 F.2d 1562, 1564 (llth

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13/   Even if this could be treated as a "limited fumd" case, this Court still should not grant the motion to certify this class under Rule 23(b)(1)(B) because the Sixth Circuit requires a fact finding hearing or some other opportunity for the parties to submit evidence as to the existence of a limited fund. See In re Bendectin, supra 749 F.2d at 306 (holding that "the district court, as a matter of law, must have a fact-finding inquiry on this question and allow the opponents of class certification to present evidence that a limited fund does not exist); In re Telectronics Pacing Sys., 172 F.R.D. 271, 285 n.9 (S.D. Ohio 1997) ("Tbe Court cannot cetify a limited fund class without making findings concerning the existence of a limited fund"). Presumably this requirement would still apply to a non-monetary "limited fund" whose existence may be even more difficult to determine.

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Cir. 1984) (trial court must be aware of sufficient facts so that it can make a reasoned determination whether plaintiff has satisfied Rule 23); Wagner v. Talor, supra, 836 F.2d 578, 587 (D.C. Cir. 1987) ("decision on class certification cannot be made in a vacuum").

As noted above, see supra at 11 - 17, the class plaintiff has moved to certify seeks compensatory damages, and lacks standing to obtanm injunctive relief. 14/ But plaintiff would have been "injured" by the Law School's consideration of race, and therefore have standing to seek compensatory damages, only if she would have been admitted to the Law School under an admissions system that did not consider race. If plaintiff would not have been admitted to the Law School -- even under a system that did not consider race -- then she lacks standing to challenge the Law School's efforts to achieve a diverse student body. In that case, she could not represent a class of plaintiffs suing for compensatory damages. Thus, even if the class plaintiff seeks to certify did satisfy the requiremnts of Rule 23(b), the Court should defer its decision on whether class treatment is appropriate until it has before it sufficient evidence to determine whether the named plaintiff is a typical member of the class she purports to represent.
A. Rule 23(a) Requires The Named Plaintiff To Be A Member
     Of The Class She Seeks To Certify.
As the Sixth Circuit made clear, the "premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class." Sprague v. General Motors Corp., supra, 133 F.3d 388, 399 (6th Cir.), cert. denied, 118 S.

_____________________________

14/It should be noted, however, that plaintiff -- presumably unlike the members of the class she seeks to represent -- has abandoned any claim for economic damages. See B. Grutter Deposition (Ex. B) 4:17 - 6:2

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Ct. 2312 (1998). The Supreme Court has made the same point regarding Rule 23(a)'s "adequacy" requirement. For example, in East Texas Motor Freight Sys. v. Rodriguez, 431 U.S. 395 (1977), a trucking company employed two types of truck drivers, "city drivers" who worked only within a city and "line drivers" who drove between cities. Three minority city drivers brought a class action suit to challenge a truckng company rule that prohibited "city drivers"' from transferring to higher paying jobs as "line drivers." The Supreme Court held that the suit had been improperly certified as a class action, because it turned out that the named plaintiffs "were not members of the class of discriminatees they purported to represent." Id. at 403. "As this Court has repeatedly held, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Id. (internal quotation and citation omitted). Because the named plaintiffs "lacked the qualifications to be hired as line drivers," they "could have suffered no injury as a result of the alleged discriminatory practices, and they were, therefore simply not eligible to represent a class of persons who did allegedly suffer injury." Id. at 403-404.

Plaintiff claims that she was denied admission to the University of Michigan Law School because the law school considers race as a factor in the admissions process. If plaintiff would have been denied admission to the Law School even under an admissions system that did not include the conscious consideration of race as a factor, then the policy over which she is suing would not have caused her injury. The Supreme Court made the same point in East Texas Motor Freight: if she was separately unqualified for admission, she would have "suffered no injury as a result of the alleged discriminatory practices," 431 U.S.

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at 403-404, and therefore could not represent a class of plaintiffs suing to challenge those policies.

B. Plaintiff Lacks Standing To Recover Compensatory Damages
     If She Would Not Have Been Admitted to the Law School
     Under An Admissions System That Did Not Include The
     Conscious Consideration Of Race As A Factor.

Plaintiff, apparently recognizing this obstacle to class certification, has undertaken to re-cast the "injury" that she and the other ostensible class members have suffered. To that end, plaintiff urges this Court to disregard the usual requirement that a plaintiff needs to suffer an actual injury on account of the practice over which she is suing. She states that her proposed class is not limited to those who "would have been admitted to the Law School 'but for'" them Law School's policy of considering race in the admissions process. Memorandum at 5 n.1 Rather, she says that her proposed class includes all "applicants who were or will in the future be prevented from 'competing on an equal footing'" for admission to the Law School. Id. (quoting Adarand Constructors v. Peña, 515 U.S. 200, 211 (1995)). Reflecting this expansive understanding of "injury," plaintiffs purported class thus includes every single disappointed non-minority Law School applicant, without respect to whether that applicant could ever have been admitted to the Law School under any admissions policy. See Memorandum at 1; Complaint ¶ 10.

This understanding of "injury" flies in the face of well established law, which requires a showing of "concrete injury," supra, 504 U.S. at 576, and does not allow federal courts to adjudicate a "generalized grievance." Id. at 575. While plaintiff cites a number of cases that she contends confer standing on every disappointed non-minority Law

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School applicant, a more careful examination of those cases -- as well as subsequent Supreme Court authority -- makes clear that plaintiff's cases do not abrogate the "concrete injury" argument.

Specifically, plaintiff relies primarily on cases involving set-asides for minority contractors, such as Adarand, 515 U.S. 200, and Northeastern Fla. Chapter of the Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993). Plaintiff would read these cases to dismantle the usual standing requirements, and to confer standing on all members of the purported class for whom obtaining admission to the Law School was "more difficult" than it would have been but for the Law School's consideration of race in admissions. These cases are inapposite for two reasons.

first, the cases on which plaintiff relies, which permit challenges to programs that allegedly interfere with an applicant's ability to "compet[e] on an equal footing" for a government benefit, see Memorandum at 5 n.1, only pemit those plaintiffs to sue to enjoin the operation of such programs. Tellingly, plaintiff's long string* cite, id., does not point this Court to a single case in which either the Supreme Court or the Sixth Circuit has ever permitted a plaintiff to sue for damages where the plaintiffs only objection is to the "imposition of [a] barrier," when the govenunent can demonstrate that the plaintiff would not have received the benefit even in the absence of the "barrier." See Jacksonville, 508 U.S. at 666 n.5 (plaintiff sought "a judicial decree directing the city to discontinue its program"). To the contrary, the Supreme Court has ruled that the only relief that such a plaintiff may obtain is injunctive: "the victims of a discriminatory government program may be remedied by an end to preferential treatment for others." Heckler v. Mathews, 465 U.S. 728, 740 n.8

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(1984). 15/ That principle conforms with case law and common sense: future applicants can obtain injunctive relief without proving that they would win the benfit for which they are competing. As demonstrated above, plaintiff and the class she has described have standing only to seek damages. See supra at 11 - 17. She therefore is not a member of the class she asks to certify (and therefore could not represent it) if it turns out that she would not have been admitted to the Law School even under an admissions system that did not "impermissibly" involve the conscious consideration of race.

Specifically, in the damages context, the Supreme Court has held that where the goverrment can show that it would have in any event reached the same decision without regard to the allegedly improper factor, the plaintiff has not suffered cognizable injury. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) ("the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision" without considering that factor). See also East Texas Motor Freight Sys., 431 U.S. at 403 n.9 ("Even assuming, arguendo,

_____________________________

15/   In Price v. City of Charlotte, 93 F.3d 1241, 1247 (4th Cir. 1996), cert. denied, 117 S. Ct. 1246 (1997), the Fourth Circuit did permit a plaintiff who was denied the opportunity to compete for open positions to recover compensatory emotional distress damages even where plaintiff would not have obtained the promotion under a lawful policy. The Price court pemitted the plaintiff to recover whatever injury "is grounded in the denial of equal protection, not their lack of promotions." Id. at 1248. As Judge Posner observed in McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir. 1998), pet'n for cert. filed, 67 U.S.L.W. 3083 (July 20, 1998), adopting the Price rule would "enormously multipl[y] the number of potential plaintiffs in equal protection cases; persons who had not been harmed in the usual sense could nonetheless sue for damages." Price also involved a fixed racial quota, which renders its reasoning inapplicable here. See inra at 33 - 35. The Price rule has not been adopted in the Sixth Circuit.

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that the company's failure even to consider the applications was discriminatory, the company was entitled to prove at trial that the respondents had not been injured because they were not qualified and would not have been hired in any event.").

Second, the Jacksonville Court expressly limited its holding to cases involving quotas or fixed set-asides. For example, in distinguishing cases like Warth v. Seldin, 422 U.S. 490 (1975), which state the generally applicable proposition that in order to have standing to sue, a plaintiff is required to point to specific and concrete harm that he suffered on account of the program or statute he is challenging, the Court explained that Warth did not involve exclusion "from consideration for a certain portion of benefits." Jacksonville, 508 U.S. at 667. The imposition of such a racial quota thus causes an "injury" that is absent where race is merely one of several factors taken into account. Indeed, the Jacksonville Court plainly recognized this principle, and expressly limited its holding to cases in which "a party [is] challenging a set-aside program like Jacksonville's." Id. at 666.

There is no suggestion -- in the complaint, in plaintiffs Memorandum, or in the record -- that the Law School's admissions process involves a fixed set-aside or a quota. To the contrary, Erica Munzel, the Law School's Assistant Dean and Director of Admissions, made clear during her deposition how race is considered in the Law School's admissions process:
[Race is considered] the same way as you are thinking about other factors as well. So you are thinking about how this person performed on the LSAT. You are looking at their undergraduate record. You are thinking about the strength of that, what it took to achieve at that level. You are thinking about what their recommenders say about them. You are thinking about their personal statement in their essays, what

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they articulated in those about what they might be able to add to the student body. You are thinking about that is unique or unusual about this person that would be an interesting perspective to add to the class. And then race, their ethnic background or their upbringing, is one of those factors.

Munzel Deposition (Ex. D) 107:21 - 108:14.

As the Law School's admissions policy, adopted by the faculty in 1992, points out, diversity is not defined "solely in terms of racial and ethnic status." Law School Admissions Policy (Ex. F) 12. While the policy notes that the Law School seeks to enroll a "critical mass" of students from underepresented minority groups, id., Associate Dean Sue Eklund explained at her deposition that in crafting its admissions policy, the Law School sought to "get away from being concerned, as much of society was, about numbers, and we were more concerned with the experience." Eklund Deposition (Ex. E) 49:23 - 50:3. "There is an atmosphere, an environment that mixes with sheer numbers to provide what I view as a critical mass and what I think the Law School faculty viewed that term as meaning." Id. at 48:13-16.

This case is therefore wholly unlike the constitutional challenges before the Supreme Court in Jacksonville, or Adarand. Rather, this case falls into the category of cases where a governmental decision relied on several factors, one of which is alleged to be impermissible. In that setting, there can be no question but that the Mt. Healthy rule applies, and that plaintiff lacks standing to challenge the consideration of race if the defendants can show that their consideration of race did not affect the plaintiff. See e.g., Blalock v. Metals Trades, Inc., 775 F.2d 703, 712 (6th Cir. 1985) ("the employer has the burden to prove that

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the adverse employment action would have been taken even in the absence of the impermissible motivation, and that, therefore, the discriminatory animus was not the cause of the adverse employment action"). 16/ Accordingly, if plaintiff would not have been admitted to the Law School even under a "permissible" admissions system, she would have suffered no injury and would thus be unable to represent a class.

C. The Record Makes Clear That The Named Plaintiff's Only
     Injury Is The Denial Of Her Application For Admission.
Under the doctrine set out in Mt. Healthy, plantiff's standing to recover compensatory damages, and therefore her ability to represent a class of plaintiffs suing for compensatory damages, turns on the question whether she would have been admitted to the Law School under an admissions policy that did not entail any "inpermissible"' conscious consideration of race. If she would not have been, plaintiff's claims would neither be "typical" of the class's, nor would plaintiff be an "adequate" representative of the class's interests.

________________________________

16/   Even in cases involving hiring quotas, the Sixth Circuit has limited standing to those applicants who would have been plausible candidates for the position under a hiring system that did not consider race. In Brunet v. City of Columbus, I F.3d 390 (6th Cir. 1993), a number of male applicants for positions on the Columbus fire department challenged an affirmative action prograin that benefited female applicants. The Sixth Circuit found that only plausible candidates for the position had standing to challenge the gender preference. Thus, two male candidates, Tucker and Hilleary, whose low scores placed them out of serious contention, did not have standing to challenge the affirmative action plan. Specifically, in rejecting their standing, the Sixth Circuit found that "Tucker's low rank would have eliminated hixn from consideration," id. at 398-99, and that "the consent decree did not adversely affect Hilleary's selection to the August, 1991 training class," because even without the consent decree "the City still would have only reached candidate 40 in its consideration for the 38th position in the class; Hilleary ranked 44." Id. at 399.

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But even if the law did confer standing on applicants who faced some type of "competitive disadvantage" on account of the Law School's consideration of race in the admissions process, it is clear that plaintiff is not typical of those who suffered such an "injury." Rather, plaintiff testified at her deposition that her only injury flowed from the rejection of her application for admission. Specifically, she said that had she been admitted to the Law School despite the policy that involved the conscious consideration of race as a factor, she would not have suffered any damages:
Q: Ms. Grutter, if you had been admitted to the University of Michigan Law School you wouldn't have suffered any of these damages that you claim you have sufferdd, is that correct?
A: No, I -- I don't -- off the top of my head, no, I don't think so.
Q: You don't think you would have suffered any of these damages?
A: However, had I known that there was -- not equal treatment in the process it would have -- even if I had been admitted it would have bothered me to know that there was not equal treatment in the application process.
Q: But you wouldn't have suffered any damages?
A: I haven't thought about that before, so the answer I give is not one that has much thought, but I would expect no, I wouldn't.
B. Grutter Deposition (Ex. B) 141:25 - 142:16.

Having suffered no injury on account of the Law School's mere consideration of race as a factor, plaintiff lacks standing to challenge it -- and is of course disabled from representing a class of plaintiffs who do claim to have suffered such an injury. 17/ Rather, her only injury hinges on her claim that she would have been admitted to the Law School but for

_______________________________

17/   Plaintiff may not circumvent the requirement of actual injury by claiming to seek "nominal damages." Plaintiffs complaint makes no mention of nominal damages, stating only that she "seeks declaratory and injunctive relief and compensatory and punitive damages in an amount to be proven at trial." Complaint ¸ 1. Moreover, the fact that plaintiff has suffered no damages because of this alleged "injury" renders her an atypical and inadequate representative of a class suing on this account.

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the consideration of race as a factor in admissions. For this reason -- even if plaintiff could satisfy the requirements of Rule 23(b)(1) or (b)(2) -- it would nevertheless be inappropriate to certify a class before this Court has an oppommity to determine whether plaintiff would have been admitted to the Law School under an admissions system that did not involve the "impermissible" consideration of race as a factor. Accordingly, even if plaintiff did satisfy the requirements of Rule 23(b)(1) or (b)(2), it would be inappropriate to certify a class at this time. See in re American Med. Sys., supra, 75 F.3d 1069 (granting mandamus where district court certified a class in the absence of a sufficient factual record).

IV.    PLAINTIFF'S MOTION TO BIFURCATE "LIABILITY" FROM
          "DAMAGES" ALSO MISAPPREHENDS THE REQUIREMENT
         THAT SHE SUFFER "ACTUAL INJURY"

Defendants agree that any genuine damages issues in this case, such as the quantification of plaintiff's alleged emotional distress damages and any other compensatory damages, should be bifurcated. Because a decision in defendants' favor would obviate any need to address those issues, and because plaintiff has demanded a jury trial limited to the question of damages, defendants agree that these issues do not need to be litigated until and unless this Court determines that plaintiff is entitled to recover damages at all.

But defendants do not believe that the issue of causation, that is, whether the Law School's consideration of race as a factor in admissions caused the plaintiff any harm, can or should be severed from the abstract question whether race may be considered in the admissions process 18/

________________________________

18/   As discussed above, see supra at 30 - 36, the question whether plaintiff would have been admitted to the Law School under an admissions system that did not include the conscious consideration of race as a factor bears on the question whether the consideration of race caused plaintiff any cognizable injury, not simply on the quantification of damages.

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First, under the Supreme Court's Steel Company decision, supra, it is by no means clear that this Court has the authority to address the abstract legality of the Law School's admissions process before considering whether plaintiff was injured by the consideration of race. In Steel Company, the Court rejected the practice of "proceed[ing] immediately to the merits question, despite jurisdictional objections" such as standing. 118S. Ct. at 1012. "The Ninth Circuit has denominated this practice -- which it characterizes as 'assuming' jurisdiction for the purpose of deciding the merits -- the 'doctrine of hypothetical jurisdiction.'" Id. (citations omitted). Steel Company expressly rejected such a "doctrine," finding it to be "beyond the bounds of authorized judicial action" and holding that it "offends mdamental principles of separation of powers." Id.

Second, severing the causation question would not serve any interest in judicial economy. Determining whether plaintiff would have been adnutted to the Law School under a system that did not consider race as a factor will require the testimony of Law School admissions officials -- presumably the same officials who will describe the admissions process to determine its legality. There is no principle of efficiency served in bringing back the same witnesses to testify again.

For these reasons, defendants submit that this Court should not adjudicate the abstract "legality" of the practice of considering race as a factor in the admissions process without undertaking to determine whether that consideration "injured" the plaintiff.

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CONCLUSION

For the foregoing reasons, defendants submit that plaintiff's motion to certify the class should be denied; that plaintiff's motion to sever liability from damages be granted; and that the question of causation, whether defendants' policy caused plaintiff any "injury," should be litigated in the initial "liability" phase.

Of Counsel:
John H. Oickering
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Dated:   September 10, 1998

Respectfully submitted,

_______________________________
John Payton
Jane Sherburne
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

_______________________________
Leonard M. Niehoff

P36695
BUTZEL LONG
350 South Main Street, Suite 300
Ann Arbor, MI 48104
(313) 213-3625






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CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of September, 1998, true and correct copies of the foregoing Defendants' Opposition to Plaintifrs Motion To Certify a Class Action and to Bifurcate Liability From Damages were served by first-class mail on


David F. Kerr, Esq.
Kirk Kolbo, Esq.
Malson, Edelman, Borman & Brand
3300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402

Michael E. Rosman, Esq.
Michael P. McDonald, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036

Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak, P.C.
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180


___________________________
Craig Goldblatt                 


Grutter briefs – Table of Contents


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