188 F.3d 394 (6th Cir. 1999)
Before us are two cases in which proposed defendant-intervenors were denied intervention under Federal Rule of Civil Procedure 24(a) and (b).1 The actions were brought against the University of Michigan to contest the use of an applicant's race as a factor in determining admission.2 The appeals come from separate district courts but present similar issues.3 We have therefore consolidated the two cases for purposes of this opinion.4
In Gratz v. Bollinger, the named plaintiffs are two white applicants who were denied admission to the College of Literature, Arts and Science.5 They allege that the College's admissions policy violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq.6 The plaintiffs seek compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the College.7 The proposed intervenors are 17 African-American and Latino/a individuals who have applied or intend to apply to the University, and the Citizens for Affirmative Action's Preservation (CAAP), a nonprofit organization whose stated mission is to preserve opportunities in higher education for African-American and Latino/a students in Michigan. The district court denied their motion for intervention as of right, holding that the plaintiffs did not have a substantial interest in the litigation and that the University could adequately represent the proposed intervenors' interests.8 The district court also denied the proposed intervenors' alternative motion for permissive intervention.9
In Grutter v. Bollinger, the named plaintiff is a white woman challenging the admissions policy of the University of Michigan Law School.10 She alleges that the race-conscious admissions policy utilized by the law school violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq.11 Grutter seeks compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the law school.12 The proposed intervenors are 41 students and three pro-affirmative action coalitions.13 The individual proposed intervenors include 21 undergraduate students of different races who currently attend different undergraduate institutions, all of whom plan to apply to the law school for admission.14 Five black students who currently attend local high schools also plan to apply to the law school for admission.15 Twelve students of different races currently attend the law school.16 A paralegal and a Latino graduate student at the University of Texas at Austin intend to apply to the law school for admission.17 A black graduate student at the University of Michigan is a member of the Defend Affirmative Action Party.18 The district court denied the motion to intervene as of right on the basis that the intervenors failed to show that their interests would not be adequately represented by the University.19 The district court also denied the proposed intervenors' alternative motion for permissive intervention.
The plaintiff opposed the motion to intervene, but the defendants, officials of the Law School and the University, did not oppose the motion.20 The appeals were argued on June 8, 1999, and decided on August 10, 1999.21
Whether the proposed intervenors have a substantial legal interest in the subject matter of the litigation?22
In this circuit, proposed intervenors must establish four elements to be entitled to intervene as a matter of right.23 The elements are (1) that the motion to intervene was timely.24 (2) That they have a substantial legal interest in the subject matter of the case.25 (3) That their ability to protect that interest may be impaired in the absence of intervention.26 (4) That the parties already before the court may not adequately represent their interest.27 See Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990).28
Yes. The proposed intervenors in Gratz v. Bollinger consist of 17 African-American and Latino/a individuals who have applied or intend to apply to the University along with the CAAP organization whose mission is to preserve opportunities in higher education for such students. The proposed intervenors in Grutter v. Bollinger consist of 41 students and three pro-affirmative action coalitions.29 Their members include current undergraduates planning to apply to the law school, local high school students intending to apply, current law students, and a black graduate student at the University of Michigan.30
These individuals and organizations possess a direct and substantial legal interest in maintaining the use of race as a factor in admissions.31 This interest serves to preserve their educational opportunity and prevent a decline in enrollment of African-American and Latino/a students.32 Sixth Circuit precedent establishes an expansive notion of interest under Rule 24(a)(2) that does not require a specific legal or equitable interest or the existence of a consent decree.33 The interest here is more direct than the general interest of an organization in vindicating legislation it had supported.34
The proposed intervenors have a substantial legal interest in the subject matter of the litigation.35
Whether the proposed intervenors' ability to protect their interests may be impaired if intervention is denied?36
Yes. A decision in favor of the plaintiffs will adversely affect the proposed intervenors' interest in educational opportunity by diminishing their likelihood of obtaining admission to the University and by reducing the number of African-American and Latino/a students at the University.42 Recent experiences in California and Texas demonstrate that precluding consideration of race as a factor in admissions produces a substantial decline in enrollment of such students.43 The probability of similar effects in Michigan satisfies the minimal requirements of the impairment element.44
The proposed intervenors' ability to protect their interests may be impaired if intervention is denied.45
Whether the University may not adequately represent the interests of the proposed intervenors?46
The proposed intervenors' burden in showing inadequacy of representation is minimal.47 It is enough to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor's arguments or that there is a potential for inadequate representation.48 See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997).
Yes. The proposed intervenors have presented legitimate concerns that the University is subject to internal and external institutional pressures that may prevent it from articulating all defenses of affirmative action, including evidence of past discrimination by the University itself or the disparate impact of current admissions criteria.49 The University is at less risk of harm than the applicants if it loses the case and therefore may not defend the case as vigorously as the proposed intervenors.50 This establishes the possibility of inadequate representation under the minimal burden standard.51
The University may not adequately represent the interests of the proposed intervenors.52
Related opinions on this issue
Judge Stafford dissented from the holding on inadequate representation.53 He concluded that the proposed intervenors' subjective fears are insufficient to satisfy even the minimal burden of showing that the University will not adequately represent their interests.54 Stafford noted that nothing in the record suggests the University will fail to zealously defend its voluntarily-adopted admissions policies, present all relevant evidence, resist unspecified pressures, or raise all defenses and arguments that the intervenors might raise.55
He emphasized that the court should not substitute its judgment for the informed judgment of the two district judges who denied intervention based on the records before them.56
Whether a higher standard for demonstrating inadequate representation applies when the existing defendant is a governmental entity?57
This circuit has declined to endorse a higher standard for inadequacy of representation when a governmental entity is involved as the existing defendant.58 Only a showing that representation might be inadequate is required.59 See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997).
No. The plaintiff relied on Hopwood v. State of Texas for the proposition that a stronger showing of inadequacy is required when a governmental agency is the existing defendant.60 This circuit rejected that approach in Michigan State AFL-CIO v. Miller where the defendants included the Secretary of State and the Attorney General.61 The district court in Grutter therefore erred by applying the more demanding Fifth Circuit standard instead of the minimal burden established in this circuit.62
A higher standard for demonstrating inadequate representation does not apply when the existing defendant is a governmental entity.63
Whether the district courts erred in denying the proposed intervenors' motions for intervention as of right?64
A district court's denial of intervention as of right is reviewed de novo except for the timeliness element, which is reviewed for an abuse of discretion.65 Reversal is required when the proposed intervenors establish all four elements of Rule 24(a)(2).66 See Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990).
Yes. The motions for intervention were timely.67 The proposed intervenors established a substantial legal interest in the subject matter of the litigation.68 Their ability to protect that interest may be impaired by an adverse ruling.69 The University may not adequately represent their interests.70 The district courts therefore erred in denying intervention as of right under Rule 24(a).71 The orders denying intervention must be reversed with directions to permit intervention.72
The district courts erred in denying the proposed intervenors' motions for intervention as of right.73