More than a year after the U.S. Supreme Court struck down the admissions policy for the College of Literature, Science, and the Arts, aspects of the case brought to the court are still being settled between the University and the firm that represented Jennifer Gratz and other plaintiffs fighting to end affirmative action.

In a series of briefs filed between the two parties, the legal battle over damages to be paid to the plaintiffs continues, as the Center for Individual Rights has responded to the University’s most recent statement the CIR asserts that it will continue to seek payment for damages.

CIR wants the University to refund the $40 application fee and pay a $1 punitive damage to everyone who applied between 1995 and 2003 and was not of Native American, black or Hispanic origin, because the University was using an unconstitutional admissions policy.

The University is arguing that the plaintiffs must prove they would have been accepted under the current application process — not the one they had originally applied under. The new system does not use points but still considers race as a factor for admission.

“We do not believe these damages are warranted by either the facts of the case, or the law,” said Marvin Krislov, University vice president and general counsel.

“Unsuccessful applicants would have to show they would have been admitted to the University under an alternate race-conscious system, and that is nearly impossible to show. Courts have been extremely reluctant to go back in time and engage in this kind of speculation in previous cases.”

The disagreement over which system should be used to evaluate damages has resulted in a dispute over who shoulders the burden of proof in the case.

“The burden is on the University to prove that these individuals would have not gotten in, that it would only satisfy that burden under the old system,” CIR President Terry Pell said.

“We don’t believe the law allows the University to force plaintiffs to construct a hypothetical new system to show that they would have got(ten) into the University of Michigan.”

The University’s argument would not allow the plaintiffs to sue on a class-action basis because individuals would have to show that they would have been admitted under the current admissions policy.

When the affirmative action case was originally presented, both parties agreed to split the lawsuit in two — first dealing with the constitutionality of the admissions policies and later deciding on what damages individuals were entitled to.

U.S. District Court Judge Patrick Duggan requested further briefings by both parties during a status conference this week. The University and CIR must agree on when they file their briefs, but Pell expects the new round of briefs to be delivered in the next few months.

Even if Duggan finally rules on the case, it may not be the end of court action, as each side may appeal the decision, Pell said.

In a related motion, Duggan ruled last week that the attorney’s fees and costs paid to CIR and other lawfirms be reduced from $2,070,000 to $672,000. Duggan said the University did not have to pay the full fee because the point system was abolished but CIR did not succeed in eliminating race-conscious admissions completely.

Krislov said the University was grateful Duggan reduced the fees.

CIR accumulated the legal costs beginning in 1997 when it accepted the Gratz case.

“There is certainly legal support to not award the amount we asked for. The law for the prevailing party says you don’t have to win on every issue. It would have been nice to win on both issues but all we had to do is win on one of the issues to benefit our clients,” Pell said.

The 2003 case challenged the University’s LSA admissions policy that assigned a certain number of points to minorities when they applied to the University. The court ruled the points system was tantamount to a quota but said considering race was acceptable to achieve an academically diverse environment.

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