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EXPERT REPORT OF KENT D.
SYVERUD
Grutter, et al. v. Bollinger, et al., No.
97-75928 (E.D. Mich.)
I am Kent
D. Syverud. I have been Dean and Garner Anthony Professor of Law at the
Vanderbilt
University Law School since 1997. For ten years, I was a professor at
the University of
Michigan Law School. For the last two years of my tenure there I also
served as Associate
Dean for Academic Affairs. In that role I worked with new and
experienced teachers to
improve the quality of teaching. I have also taught at the University
of Pennsylvania Law
School, the University of Tokyo Faculty of Law and Politics, and in
Germany at programs
sponsored by the Universities of Trier and Saarbrucken. I have taught
and continue to
teach courses in civil procedure, negotiation and drafting, and
insurance law. I am the
incoming editor of the Journal of Legal Education, which is the
scholarly journal of the
American Association of Law Schools. I frequently give addresses about
law teaching, about
the challenges of law teaching to lawyers, law teachers, judges and
teachers at other
universities. I have published an article on the challenges of teaching
law students well.
I have won teaching awards at the University of Michigan Law School,
and, in my first year
in my new position, at the Vanderbilt University Law School. Since
1991, I have regularly
taught lawyers who are about to become law professors at the annual New
Law Teachers
Workshop of the Association of American Law Schools. Before becoming a
law teacher I
practiced law in Washington D.C.
I am not charging any fee for my expert services in this action. I
am being compensated
for my reasonable expenses. In the past four years, I have testified as
an expert in three
insurance matters: Dow Corning Corp. v. Hartford Accident &
Indemnity Co.
(Wayne County Circuit Court); Giant Eagle Inc. v. Federal Ins.
Co. (W.D. Pa.); and Dow
Chemical Co. v. Aetna (E.D. Mich.). I attach a copy of my current
resume, which
includes publications, to this report as an exhibit.
At the beginning of my career as a law teacher, I was skeptical of
efforts to consider
race as a factor in law school admissions. I was also skeptical that
considering race as a
factor in admissions had a positive impact on the educational
experience of law students.
My views on whether law schools should consider race in admissions have
changed. The
change has been gradual, and the product of many experiences teaching
many students in
many settings. I have in particular had the experience of teaching the
same subject matter
to classes that are racially homogenous and racially heterogeneous, and
to classes where
non-white students make up a tiny fraction of the enrolled students and
where their
numbers are more significant.
I have come to believe that all law students receive an immeasurably
better legal
education, and become immeasurably better lawyers, in law schools and
law school classes
where the student body is racially heterogeneous. It has been my
experience from many
conversations over the years that the vast majority of committed law
teachers agree. When
my students reflect on their law school experience, whether black or
white, Asian or
Hispanic, conservative or liberal, they also often volunteer this
conclusion. I now view
this agreement as indicating that those people most directly involved
in the law school
classroom can see the difference that racial heterogeneity makes in
legal education. I
have many reasons for now believing that considerations of race in law
school admissions
are particularly vital to providing the best possible legal education
and to training the
best possible lawyers.
The first reason is the unique way learning happens in the best law
school classrooms.
Most first-year classes in law schools are conducted by the Socratic
method, in which
professors call upon individual students and engage in a dialogue of
questions and answers
in front of the entire class. There are many variants of this method,
but most professors
continue to single out individual students each day to answer a series
of questions
suggested by the assigned reading. In my own civil procedure class, I
call upon each
student several times a semester, usually questioning each student for
fifteen to twenty
minutes. The purposes of this method are manifold; they include the
desire to engage the
student closely and carefully with a legal text and to make the
classroom dynamic, lively,
and interesting. At least as important, the method consciously seeks to
make the students
think, to learn from each other, and to learn to be able to see any set
of facts from
different points of view. Students are expected to draw upon their own
backgrounds and
experiences in answering questions and in making arguments. Rather than
passively
receiving the accumulated wisdom of the professor, students are
required to grapple with
their own viewpoints, and those of their colleagues, on an array of
difficult situations
posed by the professor and the text. The result is that, in the best
classrooms, every
voice is heard, and the quality of the education received is largely a
function of the
diversity of viewpoints and experiences among the students in the
class.
It is my view, based on my experience, that racial heterogeneity
dramatically enhances
the ability of the best active, Socratic teaching to achieve its
purposes. My best class
sessions, by far, have been characterized by direct and often painful
dialogue between
students who are forced by the method to confront and make explicit
their deepest
unexamined convictions about legal issues, and also to engage in
discussion with those
who, because of different experiences and often because of different
race, do not share
those convictions. Those class sessions produce the most careful
thinking, and when
handled with care are the most challenging and appropriate education I
can offer. It has
been my experience that racial diversity in the Socratic classroom
strongly fosters the
kind of thinking that the best lawyers need to be able to do.
For a related reason, racial heterogeneity in a Socratic classroom
produces better
lawyers. As a law teacher, I am constantly struggling with the need to
teach new students
the obligations of a lawyer to become a zealous advocate for a client
and a skilled
negotiator with adversaries and others. A basic component of excelling
in these roles is
the ability to understand the views, goals, and tactics of a client or
adversary. Good
advocacy first requires understanding both the client and the
adversary. Yet most of my
students come to law school with strong advocacy skills and poor
listening skills; they
assume they already know what the viewpoint of a client or adversary
must be in every
situation. In particular, they often assign to people of different
races and ethnic
backgrounds viewpoints that are uninformed by experience or by direct
dialogue with a
client or adversary. They are often very wrong. They don't know what
they don't know, and
it is my job to show them what they have to learn, every time, from
every individual
client or adversary.
Nothing teaches this lesson better than a classroom where, because
of abundant racial
heterogeneity, common assumptions about viewpoints of different races
are constantly
confronted by frank discussion that at times confirms and at times
profoundly confounds
those assumptions. I have seen this demonstrated repeatedly, both in my
civil procedure
classes taught via the Socratic method and in the upper level skills
class I teach on
negotiation.
There is abundant criticism of legal education for failing to teach
students the skills
they will need to succeed as lawyers. It is an important responsibility
of law schools to
teach students to become able negotiators, problem solvers, managers,
counselors,
investigators, and mediators. It also is vital that the lawyers we
train be able to
participate to the fullest in a democratic society in which they will
have a vital role,
as officers of the court, in preserving justice. It has been my
experience that skills
instruction is enhanced dramatically for all students by the
interaction in class of
future lawyers of all races, and by the different and at times
unpredicted viewpoints
different people bring to the discussion. It is also my experience that
civil democratic
discourse among lawyers of all races, in public and in court, is
something that, once
experienced in the law school classroom, is valued outside it and
across my students'
careers.
Racial heterogeneity thus helps make better lawyers at the same time
it assures that
classroom discussion will not become so theoretical as to be divorced
from the real
differences in viewpoints that characterize many of the clients my
students will need to
serve.
Some examples from my teaching experience may better explain why I
have come to hold
these views. In my civil procedure course each year, I teach students
how the finder of
fact, whether judge or jury, is selected in the American federal and
state systems, as
well as under systems in other countries. I teach jury selection by
having six to twelve
students in the class assume the role of potential jurors, who are
questioned by
classmates serving in the role as defense and plaintiff's counsel. Male
student jurors
pretend to be their own fathers; female student jurors pretend to be
their own mothers.
The students answer the searching voir dire questions accordingly,
often revealing
unexpected differences in backgrounds and viewpoints that are shocking
and enlightening to
the class. When challenges are exercised by the plaintiff and defense
counsel, it is often
the case that both black and white students strike both black and white
jurors. The
reasons they give, and the analysis that ensues, is remarkable to all
students. The
ensuing discussion of the peremptory challenge is incomparably richer
than would be
possible without racial heterogeneity, and the students, I believe, are
incomparably
better trained to understand the roles they will serve in American
civil trials.
I have found that racial heterogeneity improves the quality of my
classes even and
especially when the subject seems far removed from issues traditionally
associated with
race in American law. In insurance law, I have found that my teaching
of the regulation of
insurance products aimed at consumers changes dramatically when the
makeup of the class is
racially diverse. In civil procedure, my teaching of remedies
(including the remedy of
garnishment) and of attorneys' fees and costs has been significantly
improved, for all
students, by having a diversity of views expressed among my black
students as well as
among my white students.
For all these reasons, I now believe racial heterogeneity is a very
important
contributor to a quality legal education for all students, and to the
training of the best
lawyers. I think a law school without significant representation of
black, white, Asian,
and Hispanic students in the student body will provide a significantly
poorer education
than a law school blessed by such a representation. And I think a
lawyer trained in a law
school that is racially homogeneous, will be, in the coming decades,
ill-equipped to serve
the functions the best lawyers will need to serve in our democracy.
"Compelling Need" Table of Contents
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