In its continuing efforts to keep the public informed about the ongoing admissions litigation, the University of Michigan makes these transcripts of the trial proceedings in Grutter v Bollinger, et al., Civil Action No. 97-75928 (E.D. Mich.), available to the University community and general public. As is often the case with transcription, some words or phrases may be misspelled or simply incorrect. The University makes no representation as to the accuracy of the transcripts.




                                                                     1



             1                  UNITED STATES DISTRICT COURT



             2               FOR THE EASTERN DISTRICT OF MICHIGAN



             3                        SOUTHERN DIVISION



             4



             5  BARBARA GRUTTER,



             6  For herself and all others



             7  Similarly situated,



             8                 Plaintiff,



             9      -v-                              Case Number:  97-CV-75928.



            10  LEE BOLLINGER, JEFFREY LEHMAN,



            11  DENNIS SHIELDS, and REGENTS OF



            12  THE UNIVERSITY OF MICHIGAN,



            13                 Defendants,



            14      and



            15  KIMBERLY JAMES, et al..



            16                 Intervening Defendants.



            17   ---------------------------------/      VOLUME  1



            18                               BENCH TRIAL



            19                     BEFORE THE HONORABLE BERNARD A. FRIEDMAN



            20                       United States District Judge



            21                    238 U.S. Courthouse & Federal Building



            22                        231 Lafayette Boulevard West



            23                               Detroit, Michigan



            24                         TUESDAY, JANUARY 16TH, 2001



            25























                                                                     2



             1



             2             APPEARANCES:   --



             3             FOR PLAINTIFF:  Kirk O. Kolbo, Esq.



             4                             R. Lawrence Purdy, Esq.



             5



             6             FOR DEFENDANTS:  John Payton, Esq.



             7                              Craig Goldblatt, Esq.



             8                              On behalf of Defendants Bollinger.



             9                              et. al.



            10



            11                              George B. Washington, Esq.



            12                              Miranda K. S. Massie, Esq.



            13                              On behalf of Intervening



            14                              Defendants.



            15



            16             COURT REPORTER:  Joan L. Morgan, CSR.



            17                             Official Court Reporter



            18



            19



            20



            21



            22



            23



            24



            25

















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                                                                     3



             1



             2



             3                            I  N  D  E X



             4



             5             WITNESS:                             PAGE:



             6  MOTIONS IN LIMINE.                                4



             7  OPENING STATEMENT ON BEHALF OF PLAINTIFF.



             8  Mr. Kolbo                                         33



             9  OPENING STATEMENT ON BEHALF OF DEFENDANT



            10  UNIVERSITY OF MICHIGAN AND INDEPENDENT DEFENDANTS



            11  Mr. Payton                                        38



            12  OPENING STATEMENT ON BEHALF



            13  OF THE INTERVENORS



            14  Ms. Massie                                        65



            15  WITNESSES PRESENTED ON BEHALF OF PLAINTIFF



            16  ALLAN STILLWAGON



            17  Direct Examination by Mr. Kolbo                   81



            18  Cross-Examination by Mr payton                   114



            19  Cross-Examination by Mr. Washington              119



            20  ERICA MUNZEL



            21  Direct Examination by Mr. Kolbo                  126



            22  Cross-Examination by Mr. Goldblatt               201



            23  Cross-Examination by Mr. Washington              251



            24  Redirect Examination by Mr. Kolbo                261



            25   Recross-Examination by Mr. Goldblatt            273

















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                                                                     4



             1



             2                  E  X  H  I  B  I  T  S



             3                                        MARKED   RECEIVED.



             4  Exhibit Number  4                               133



             5  Exhibit Number 15                               194



             6  Exhibit Number 14                               194



             7  Exhibits Nos. 180-183                           223



             8  Exhibit Number 10                               272



             9  Exhibit Number 11                              272



            10  Exhibit Number 106                             274



            11



            12



            13



            14



            15



            16



            17



            18



            19



            20



            21



            22



            23



            24



            25











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                                                                     5



             1                  Detroit, Michigan



             2                  Tuesday, January 16th, 2001



             3                  (At or about 9:30 a.m.)



             4                             -- --- --



             5             THE CLERK:  Calling case, Grutter versus Bollinger,



             6   et al., case number 97-CV-75928.



             7             THE COURT:  Good morning.



             8              You may be seated.



             9              May we have appearances please, starting with the



            10   plaintiff.



            11             MR. KOLBO:  Good morning, your Honor.  Kirk Kolbo.



            12   I'm here with my colleagues, Mr. Larry Purdy, Kai Richter.



            13   And my client, Barbara Grutter, is here as well.



            14             THE COURT:  Great.  It's nice to see you all.



            15             MR. PAYTON:  John Payton, for the University and the



            16   individual defendants.  Craig Goldblatt is with me and Phil



            17   Kessler is with me.



            18             THE COURT:  Good morning.  How is everybody?



            19             MR. KOLBO:  Fine.



            20             MS. MASSIE:  Miranda Massie for the Intervening



            21   Defendants.



            22             THE COURT:  Does anyone else want to put in their



            23   appearance?



            24             MR. WASHINGTON:  George Washington.



            25             MS. MASSIE:  Excuse me, Judge.  With me is Shanta

















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                                                                     6



             1   Driver, George Washington, Jodi Masley, Winnie Kao.



             2             THE COURT:  Okay.  Thank you.



             3             MS. MASSIE:  Thank you.



             4             THE COURT:  Well, I guess it's the day that



             5   everybody including myself has been waiting for, and we've put



             6   a lot of work into it, everybody.  A couple of things that we



             7   should start off.  Number one is we'll do the motion in



             8   limine.



             9              I have one of the Intervenors -- the Plaintiff's



            10   motion as it relates to the Intervenors' witnesses, I just



            11   received it this morning so that one I'm not prepared, and I



            12   suspect the Intervenors are not prepared to argue this morning



            13   either since they, I suspect, received it also.  All the rest,



            14   I'm prepared to listen to very short argument, none of which



            15   is included on the clock, of course, and go from



            16  There.



            17              Let me just talk about a couple of things that I'm



            18   not sure we've talked about.  One is the media.  I'm not sure



            19   who's here and who's not here, but the record should reflect



            20   that I received a call from Jodi Cohen.  I don't know if she's



            21   here or not here, I don't know.  I'm not sure from which



            22   newspaper.  And I told her I don't talk about cases at all,



            23   that -- ever, that ever appear before me now or any other



            24   time, but that because of the importance of this case if the



            25   media needed something that --

















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                                                                     7



             1  An exhibit that they thought was important in terms of



             2  Studying it so they can understand the case, we would be more



             3   than happy to make a copy for them, or something of that



             4   nature if there's no objection by the attorneys.  It's going



             5   to be reported in most -- journalists don't spend a lot of



             6   time in court.  And I also indicated to her at that time and



             7   that's why I'm repeating it today for everybody, I'm sure the



             8   attorneys would not mind if there's something that needs



             9   clarification, clarifying with them because I have no



            10   intentions of doing it, and I can't do it. I don't think it



            11   would be fair to either side for me to be involved in that.



            12   So, I've just disclosed it on the record because she



            13  Sent me a fax, and in response to her fax, called her on the



            14   phone and essentially told her the same thing that I'm saying



            15   now.



            16           So whoever is here from the media, if there's



            17   something you need copied, either David or Steven, my law



            18   clerks, will provide it, or the court deputy will be more than



            19   happy to accommodate you.



            20            In terms of scheduling, everyone has received a



            21  Copy of the schedule.  In terms of breaks, I usually break



            22   around 11:00 o'clock because the truth of the matter is,



            23   although I don't think today I have anything, generally I,



            24   schedule some miscellaneous matters at 11:00 o'clock while



            25   you're on break.  That's when we'll be doing our

















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                                                                     8



             1  Miscellaneous matters just to keep certain things going



             2  The criminal docket mostly, pleas, sentencings, things of



             3  That nature.  So we'll be doing those essentially at 11:00



             4  And sometime, we'll be doing those sometime in the



             5  Afternoon, but always on a break so we don't have to worry



             6   about that.



             7            If the lawyers need a break or something of



             8  That nature, let me know.  I don't drink coffee as often --



             9  I never drink coffee, I don't drink anything usually in the



            10   mornings so I don't need a break as often as other people



            11  But if you need a break since there's no jury, just let me



            12   know.  Or if you need a break to confer with a witness, or



            13  To make some phone calls, to line up witnesses or to



            14  Conduct business at your office since you're all here and



            15  Most of you are here from other states.  Even Mr. Kessler,



            16  Your new office, I've been reading about it in the



            17  Newspapers --



            18             MR. KESSLER:  That is true.  Thank you for noticing



            19   that.



            20             THE COURT:  You've got good PR.  Whoever is doing



            21   it, any newspaper you pick, there's your new office.  I'm



            22  Sure it's going to be beautiful though.



            23            So if something comes up, let us know, and we'll go



            24   from there.



            25            So the first matter we have this morning is the

















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                                                                     9



             1   motions in limine.   The first motion that we have is the



             2   expert testimony of Dr. Bok.  I think that one has been



             3   resolved, if I'm not mistaken.



             4            Counsel?



             5             MR. PURDY:  May it please the Court, counsel,



             6  Ladies, and gentlemen, your Honor, very briefly, we -- the



             7   plaintiffs have filed a motion to limit or exclude the



             8   testimony -- the proposed testimony of three experts, and I



             9  Do believe we have resolved one of them.  I think the three



            10   experts that were listed were Derek Bok, Kent Syverud,



            11  Claude Steele.  If I understand the response I got from the



            12   defendants I think they're withdrawing Professor Bok unless



            13  They feel that if something arises and they need -- during the



            14   course of trial that they need to call him --



            15             THE COURT:  Is that correct?



            16             MR. KESSLER:  It's close.  What we have also said is



            17   that the Court had some questions related to --



            18             THE COURT:  I can deal with that --



            19             MR. KESSLER:  -- if we were less selective that



            20   might solve the problem in another way.  And President Bok is,



            21   of course, an internationally known expert on these matters.



            22   And he will be prepared to come here and offer testimony on



            23   that sort of subject --



            24             THE COURT:  I don't need it.  That's not really part



            25   of this case. I asked the question, there's no.

















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                                                                     10



             1  Question --



             2             MR. KESSLER:  That's fine.



             3             THE COURT:  I don't need it.  It's nothing --



             4  Good.  I would like to hear him.  I think -- I've read his



             5   resume and I think just even seeing him -- he's a gentleman



             6   that's accomplished so much.  But as I say, if that was the



             7   only reason you were calling him -- I had asked that question



             8   at the time, it was more rhetorical, more curious than



             9   anything else.



            10             MR. PURDY:  I appreciate that.  I think we've



            11   resolved that.



            12             THE COURT:  Right.  Then the next one we have is



            13   Kent Syverud.



            14             MR. PURDY:  Yes, sir.  Kent Syverud, he's the



            15  Dean at Vanderbilt Law School, your Honor.



            16            Plain and simply, if you look at his



            17  Reports, there all about educational benefits of diversity.



            18  And, of course, your Honor, as everyone had made clear no one



            19   is contesting that there are educational benefits of



            20   diversity.  It's simply not an issue in the case. The Court is



            21   going to decide whether an educational institution is



            22   interested in diversity, they have to have governmental



            23   interest as a matter of law.  There's no facts that need to be



            24   heard there.



            25             THE COURT:  That's what --

















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                                                                     11



             1             MR. PURDY:  It's his own impressions.  If you look



             2   at his report, that's all it is.



             3            What they suggest in the response, what the



             4   defendants suggest in their response is that they actually



             5   want to bring Dean Syverud in to testify about what is



             6  Meant by "a diverse student body."  And I guess, your



             7  Honor, the problem we have with that is I don't think that



             8   calls for expert testimony.  The University clearly



             9  Contends that they have a diverse student body.  They have the



            10   figures about  what their racial and ethnic mix are -- are



            11   going to before the Court. They contend that they have a



            12   critical mass.  They contend they get the benefits.  You don't



            13   need an expert to come in and say, well, you know, here's my



            14   impression of what's meant by diverse student body.  They have



            15   it.



            16            And the question before the Court, as the Court has



            17   laid out in its Order, is what is the extent to which the



            18   University uses race which they obviously acknowledge that



            19   they do, and whether or not the extent which they do



            20   constitutes a double standard.  I just don't see where Dean



            21   Syverud has anything to add to that.



            22            And I might note furthermore that they do have



            23   Professor Raudenbush who is going to come in and talk about



            24   various purported admissions policies which would create



            25   different levels of diversity.  And he has a report that he

















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                                                                     12



             1   will be testifying that basically as I understand, a



             2   supplemental report that we received from Dean Syverud last



             3   Thursday or Friday, is basically he's going to come in and say



             4   I agree with Professor Raduenbush, you use one policy in order



             5   to get the diversity that they have, and if you don't do that,



             6   you get something else.  I just don't think that adds



             7   anything, your Honor.



             8            Finally, Dr. Steele --



             9             THE COURT:  Let's talk about them one at a time.



            10             MR. PURDY:  Sure.



            11             THE COURT:  Mr. Kessler, are you going to argue



            12  It?



            13            Can everybody hear in the courtroom?  Speak up if you



            14   can't.  Is the microphone on?



            15             Mr. Kessler?



            16             MR. KESSLER:  Your Honor, Dean Syverud has very



            17   important and directly relevant testimony to offer here.



            18  He is a nationally acclaimed expert in the education of law



            19   students and legal education itself.  He was a professor at



            20   the University of Michigan Law School from --



            21             THE COURT:  I'm well aware of him.  I've read his



            22   resume and -- again, what can he offer here?  Tell me -- I



            23   would like to see him.  I've talked to him on the phone



            24  Many, many times.  I've used him as a mediator in cases.



            25  I've never met him, but I've talked to him probably --

















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                                                                     13



             1  Many, many times.



             2             MR. KESSLER:  The plaintiff herself in papers



             3  That were filed -- and I guess the Court just received and



             4  I just received last night recognizes the nexus between the



             5   questions -- the two questions in particular that the Court --



             6   the first two questions that the Court has set for trial, the



             7   extent to which race is taken into account, and whether



             8   there's a double standard, and the question of the policy and



             9   critical mass.



            10             Let me just read from the bottom of page 1 and 2 of



            11   their Opposition papers on Mr. Stillwagon that they filed last



            12   night.  Two of the key questions which will be litigated at



            13   trial --



            14             THE COURT:  Are you reading from what, one more



            15   time?



            16             MR. KESSLER:  This is the bottom of page 1 and the



            17   top of page 2 of Plaintiff's Memorandum of Law in Opposition



            18   to the Defendant's Motion in Limine.  This concerns the



            19   testimony of Mr. Stillwagon.



            20             THE COURT:  Page what?



            21             MR. KESSLER:  The bottom of page one --



            22             THE COURT:  Okay.



            23             MR. KESSLER:  Starting with two of the key



            24   questions, do you see that?



            25             THE COURT:  Yes.

















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                                                                     14



             1             MR. KESSLER:  Two of the key questions which will be



             2   litigated at trial are, one, the extent to which race is



             3   factor in the law school's admissions decisions. And, two,



             4   whether the law school's consideration of race in making



             5   admissions decisions constitutes a double standard in which



             6   minority and non-minority students are treated differently.



             7            The Faculty Admissions Policy adopted in 1992



             8  Sheds some light on these issue.  For example, the policy



             9  Makes explicitly clear that the law school is committed to



            10   admitted to "meaningful numbers" or "a critical mass" of



            11   African-Americans, Hispanics, Native Americans even if



            12  Their graded performance in college and on the LSAT is



            13   "relatively far" below that of other applicants, with a



            14   transcript cite.



            15             Dean Syverud will testify about the meaning of



            16   "critical mass."  He will testify to what he saw of



            17  Critical mass at the University of Michigan Law School over



            18  A ten-year period.  He will testify as to what he has come



            19  To understand that to mean as the dean and an ongoing



            20  Member of the faculty at the Vanderbilt Law School.  He



            21  Will testify as to what he has seen in the converse



            22  Situation where you have tokenism or no diversity at all.  As



            23   he has seen for ten years in summer classes that he has taught



            24   --



            25             THE COURT:  What's the relevance to the issues

















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                                                                     15



             1   before the Court?



             2             MR. KESSLER:  The extent to which the law school



             3   considers race and takes it into account is driven by its



             4   objective of bringing together a critical mass of qualified



             5   minority students.



             6            To understand and to have the Court have a deep



             7   appreciation for what critical mass means in that context is



             8   to understand the very parameters of the extent to which race



             9   is taken into account.  It is the literal parameters around



            10   which the answer to the Court's question one arises.



            11  And it's very important that you hear that testimony.  I would



            12   say that especially that in a case of this profound national



            13   importance and social importance that can have affect for



            14   generations beyond anyone even in this courtroom, to start to



            15   artificially limit testimony that bears directly on central



            16   questions would really be most inappropriate and completely at



            17   odds with Rule 702.



            18            And he is also going to testify -- I think Mr.



            19  Purdy made reference to this -- he will testify as well



            20  That when you look at Professor Raudenbush's meticulous



            21   statistical analyzes and he shows us what will happen if we



            22   maintain the kind of a policy that we have now in place and



            23   have had since 1992, or we abandon it in favor a race neutral



            24   policy.



            25            Professor Raudenbush tells us the kind of numbers

















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                                                                     16



             1  Of minority students who can be expected to be admitted to



             2  The law school.  And Dean Syverud will testify that those



             3  Kinds of very small numbers that Professor Raudenbush



             4  Projects don't work.  They amount to tokenism.  And rather than



             5   being helpful in producing the kind of important educational



             6   benefits that this law school is committed to producing, you



             7   will have a counter-productive result.  You need to hear that



             8   with all due respect.  And, frankly, the record needs to



             9   reflect it.



            10             THE COURT:  Any rebuttal?



            11             MR. PURDY:  Sure.  Your Honor, I mean, I accept



            12   everything Mr. Kessler says about what the testimony will



            13  Be.  It's interesting if you look at the first two reports



            14  Of Dean Syverud, one dated back in 1998, and one dated



            15  Again in the year 2000, the word "critical mass" never



            16  Appears one time.  He never talks about critical mass one



            17  Time.



            18            What they've done, is we've filed our motion.  We



            19   talked to the defendants last week, and we tried to get a



            20   consultation.  In fact, we were going to call and what



            21   objections we may have had.  And we told them after they said



            22   they were going to call Kent Syverud, we alerted them, we



            23   said, look, he's just a diversity expert.  And if you



            24  Read his report, that's clearly all he talks about.  He talks



            25   about the educational benefits he sees from a level

















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                                                                     17



             1  Of racial heterogeneity within the classroom and those sorts of



             2   things. We understand that.



             3            But the question is -- Judge, we have two



             4  Questions.  What is the extent to which this defendant takes



             5   race into account in its admissions system.  He offers nothing



             6   on that.  And, secondly, whether it's a double standard.  He



             7   offers nothing on that.



             8            His evidence may be interesting from a diversity



             9   standpoint, and someone can clearly -- has strong views about



            10   what a level of racial diversity may bring or what the lack of



            11   it may not bring to a classroom.  But that doesn't have



            12   anything to do with what we're here today to talk about.  And



            13   that's the point, your Honor, we -- the critical mass is --



            14   that's the subject that they want to get into, define the



            15   critical mass.



            16            And I might point out, critical mass appears in the



            17   Admissions Policy.  It's a clearly relevant and important



            18  Term that the Court is going to hear a lot about, what does



            19   "critical mass" mean.  And they've listed witness after



            20   witness who were involved in developing the policy where



            21  That phrase was used.  If they want to talk about it -- I mean,



            22   if we wanted to go out and have -- bring twenty experts in



            23   from around the country and say here's my definition of



            24   critical mass, I mean, how would that help the Court.  I mean,



            25   as the University has used the phrase

















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                                                                     18



             1  They've got witness after witness that can tell you what it



             2   means.  And they say they have it.



             3            So, your Honor, I just think it's redundant.  It



             4   doesn't really help the Court at all. And it's brand new.



             5  The phrase "critical mass" never appeared in one report until



             6   last Thursday.



             7             THE COURT:  In this matter -- I can't -- we'll go



             8   all day, if I let you go back and forth.



             9            In this matter, the Court will deny the motion.  I



            10   will allow the defense to call Dean Syverud, however, with



            11  The understanding that I'm not making a ruling as to



            12  Relevance of his testimony.  I've had a chance to read all of



            13   his reports, and it appears that all his reports talk about



            14   the diversity issue.  It talks about when he first became a



            15   professor and how he changed his mind, and all that.  I don't



            16   think that's relevant.  And I'll tell you right now and



            17   probably -- if there was an objection, would probably exclude



            18   it only because that's not the issue before the Court today.



            19   However, if the defense believes that there's some relevance



            20   in his testimony, critical mass or otherwise, then I think I



            21   should not exclude that.  Therefore, the Court will allow him



            22   to --



            23             MR. KESSLER:  Thank you, your Honor.



            24             MR. PURDY:  Your Honor, that leaves us with Dr.



            25   Steele.  Dr. Steele is a professor out at Standford.  And

















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                                                                     19



             1  He has developed an interesting theory that relates to what he



             2   believes is a reason why there may be some disparities between



             3   standardized test scores for certain minorities and others,



             4   therefore -- I guess what it amounts to is some reason why if



             5   a school wants to make an excuse to employ a double standard,



             6   if you will.  My understanding is it's the University is they



             7   don't have a double standard.  And Dr.  Steele is going to be



             8   talking -- it's just a theory called a "stereotype threat."



             9   He believes it may effect -- or artificially depress test



            10   scores of certain minorities.



            11            I did go through his deposition, and we attached



            12   transcripts to our motion, your Honor.  He has no knowledge.



            13   He will not connect up a single one of Michigan's applicants



            14   with the concept of "stereotype threat."  He's never done any



            15   analysis of whether any of the people who applied may have



            16   been effected by stereotype threat or whether any of the



            17   students -- any minority students or majority students for



            18   that matter, but he stated that stereotype threat can effect



            19   everybody.



            20            So I don't know what it has, your Honor.  It clearly



            21   has nothing to do with the two issues that this Court has laid



            22   down for trial which is simply the --



            23             THE COURT:  How about academic ability, one of the



            24   things the defense have indicated in their response is



            25   academic ability.  Relevant or not relevant?

















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                                                                     20



             1             MR. PURDY:  Academic ability is relevant.  I think



             2   everyone's academic ability is relevant, your Honor.



             3  And the University is certainly free to evaluate different



             4   people, different applicants' academic abilities differently



             5   depending upon what the entire file looks like.



             6  I assume that's true for every applicant, every candidate



             7   regardless of race.



             8            Dr. Steele focuses specifically on one aspect which



             9   is the standardized testing.  And he suggests that -- as he



            10   says -- in fact, they say in their response, that stereotype



            11   threat and other external pressures artificially depress



            12   minority student performance on standardized tests.



            13            Now, what that suggests to me, your Honor, if the



            14   University wants to take the position now that that is an



            15   excuse that the University may use by employing a different



            16   standard for certain minorities but looking at their test



            17   scores, that would be an entirely different case.  It's my



            18   understanding the University is not prepared to make that



            19   concession, that they, in fact, do use a double standard, and



            20   do it because of Dr. Steele's theory.



            21            I might also point out Dr. Steele's theory is the



            22   best that we can tell from the record was never even



            23   considered by the University when they adopted their



            24   admissions policy.  So it play no role.  I mean, it's an



            25   interesting theory, and Dr. Steele like a number of the

















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                                                                     21



             1   witnesses in this case, your Honor, is somebody that we would



             2   be fascinated to hear from.  But I don't think it has anything



             3   to do with the limited issue before the Court.  So we would



             4   ask that it not be allowed.



             5             THE COURT:  Mr. Kessler.



             6             MR. KESSLER:  Your Honor, they have put this ball in



             7   play with the double standard argument.  They're double



             8   standard argument boils down to this:  You, law school, have



             9   admitted minorities whose average grades, average grades and



            10   average LSAT scores are somewhat lower than the average grades



            11   and test scores for white students.  That is a double



            12   standard.



            13            Professor Steele is one of several witnesses who will



            14   offer a complete negation of that position and show how



            15   wrong-headed it is.



            16             THE COURT:  Except how does it relate to this



            17   factual situation and this particular case as oppose to just



            18   generally what his opinion may be?



            19             MR. KESSLER:  One thing he's going to do is



            20  Testify as to the significance and the significant



            21  Limitations on LSAT scores.  What they mean; what they



            22  Don't mean; what they help to do; what they don't help to



            23  Do. This argument of double standard is based on a very



            24  Slight difference in average LSAT scores.  That is one



            25  Of the two bases of their argument.   You'll hear in the

















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                                                                     22



             1   Opening and all the way through the trial that in every



             2   procedural respect all of these applications are treated in



             3   exactly the same way.  The double standard --



             4             THE COURT:  Did Dr. Steele study the University of



             5   Michigan Law School's situation?  Did he -- or is it just



             6   general?



             7             MR. KESSLER:  He did not study the University of



             8   Michigan Law School situation.  His opinion is that he is



             9  An expert on the effect, significance and limitations on



            10  The significance of standardized test scores including the



            11  LSAT score.  It's the LSAT score in general, not the LSAT



            12  Score at the University of Michigan that is one of the two



            13   prongs of the plaintiff's dual standard argument.  They say



            14   that the LSAT scores on average are somewhat lower for



            15   minority students than they are for majority students.



            16   Obviously we're entitled to put that in prospective and



            17  Show that sort difference doesn't mean anything, and doesn't



            18   constitute a double standard.  And that's quite



            19  Apart from Dr. Steele's research and experimentation on the



            20   stereotype threat which is a long way from just a theory.



            21   It's based on years and years of research.  And it shows that



            22   groups who are subject to stereotypes including but not



            23   limited to some of the minorities at issue here will perform



            24   in a less successful way on standardized tests particularly



            25  If they're driven.  About the importance of the

















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                                                                     23



             1  Test.



             2            So the more important the test is to them, the more



             3   likely it is ironically that they won't do as well on it.



             4   That is directly on the point on the dual standard.  And we



             5   certainly are entitled to make a record of that.



             6            And frankly, I think the Court would benefit from



             7   hearing it.



             8             THE COURT:  Rebuttal?



             9             MR. PURDY:  Your Honor, again, I'm not going to



            10   disagree with anything that Mr. Kessler says.  Dr. Steele



            11  Has developed a theory and frankly it's not after years and



            12   years of research.  It's something that came up if I'm not



            13   mistaken I think the record will reflect it was originally



            14   published in 1995, some three years after the admissions



            15   policy at issue were developed in this particular case.



            16  And I think Mr. Kessler is walking that line that I'm quite



            17   intrigued by which is, look, there's a reason why we can do



            18   what we do, why we can actually either deemphasize the test



            19   for certain people depending upon their race or ethnicity, or



            20   why we can use a double standard.  I mean, we're excused for



            21   doing that because Dr. Steele says these particular scores



            22   should be depressed.  I guess I just don't -- first, he makes



            23   clear he's never -- he doesn't even opine whether a single



            24  One of the applicants -- I asked him the question, it's in the



            25   record, whether a single one of the applicants

















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                                                                     24



             1  Of the University of Michigan, minority or otherwise, were



             2   effected by stereotype threat.  There's no analysis that he



             3   has.  He has no knowledge of the admissions policies.



             4            And, your Honor, it's like everything else, I mean we



             5   can talk about the about the various reasons for why there may



             6   be differences in certain groups of test scores.  I don't know



             7   what that has to do with the two issues that this Court has



             8   set down for trial.



             9             THE COURT:  Okay.  In this matter, again, the Court



            10   is not -- you didn't file a response that's why I have not



            11   allowed you to speak.



            12             MS. MASSIE:  I understand that, Judge Friedman.



            13   It's just that this -- we're going to be covering the



            14  Motion that plaintiff has filed on us tomorrow.  This



            15  Exchange goes to the heart of the Intervention phase as



            16  Well.



            17             THE COURT:  It may.  But, you know, we've got to



            18   follow the rules.  If you had filed a response or something



            19  I would have been more than delighted to have let you argue



            20   anything.  But each side -- anyhow, in this matter the Court



            21   will allow Professor Steele to testify, again, however



            22  With the understanding that I'm not ruling by any means that



            23   it's relevant and because part of the reason that I set



            24  Some time limits on it was to give each side as much



            25   flexibility as I could and to utilize their

















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                                                                     25



             1  Time in the manner in which they best felt would present their



             2   case and perhaps even make a record although I'm not as



             3   concerned about making a record, I'm more concerned about



             4   dealing with the issues that are before the Court that I have



             5   enumerated for the record if that's what your desire to do is



             6   fine also.



             7             I will allow Professor Steele.



             8             MR. PURDY:  Thank you.



             9             MR. KESSLER:  Thank you.



            10             THE COURT:  We have one other motion and that -- we



            11   have other motions.  One is the Intervenors which I've



            12   indicated we will handle in a bit.  And the other one is the



            13   defendant's motion as to the plaintiff, Ms. Grutter,



            14   testifying.  It's my understanding that the plaintiff's have



            15   decided at this point not to call Ms. Grutter.  Is that



            16   everybody's understanding?



            17             MR. PURDY:  That's correct, your Honor.



            18             THE COURT:  Okay.  Just so the record is clear.



            19  And the next one we have is the issue as to Alan



            20  Stillwagon.



            21             MR. PAYTON:  Your Honor, we filed these motions



            22   because we thought that neither Mr. Stillwagon nor Ms.



            23   Grutter had any relevant testimony, any relevant testimony



            24   with the first two questions the Court set for trial the



            25   extent to which race is used and whether or not there's a

















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                                                                     26



             1   double standard.



             2             THE COURT:  Just, again, at least I forget, and I



             3   don't want to forget, is that the plaintiff's motion in



             4   relation to the Intervenors' witnesses -- again, I hope



             5   everyone will address it at the appropriate time, is very



             6   similar to the issues raised as to Plaintiff Grutter.  I



             7   think.  I'm just thinking out loud.  I haven't had a chance to



             8   really study it, but I read it very, very quickly morning



             9   because it just came in this morning.



            10             Go on, I'm sorry.



            11             MR. PAYTON:  I actually haven't read that motion



            12   carefully either, but I think they are, in fact, different.



            13             THE COURT:  They may be.  I just don't -- the only



            14   reason I said it right now is because I was thinking of it,



            15   and I wanted to at least make sure that everybody at least --



            16   we're all in a position to at least address it.



            17             MR. PAYTON:  Sure.



            18             THE COURT:  It's not here today.  Okay, as to



            19   Stillwagon.



            20             MR. PAYTON:  Mr. Stillwagon.  This case is about the



            21   current admissions policies and practices of the law school.



            22   I don't think there's any question about that.  This phase of



            23   the case is about only injunctive and declaratory relief.



            24   It's what we do right now.



            25            Mr. Stillwagon was the Director Admissions from

















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                                                                     27



             1  1997, to 1990, August of 1990.  That's eleven to twenty- years



             2   ago.  He has had nothing to do with the law school since then,



             3   since August of 1990.  He's not had any contact with any



             4   person in the Admissions Office since that time.



             5            In April of 1992, the faculty, the whole faculty,



             6   adopted a new admissions policy, a new comprehensive written



             7   policy which you've seen and which is going to be obviously a



             8   major document in this trial.  It was written a faculty



             9   admissions committee that worked on it for eight months.



            10   Worked very hard to produce the document.



            11             A new director of admissions served on that



            12   committee, contributed to the discussions and the policy, and



            13   was charged with implementing that policy.  The parties have



            14   stipulated in the Joint Pretrial, they have stipulated that



            15   the director of admissions is charged, charged with



            16   implementing that 1992 policy.  The parties have stipulated



            17   that the 1992 policy has remained in effect, unchanged since



            18   it was adopted in 1992.  I don't think there's any dispute



            19   about how it's been operated.



            20            Plaintiff concedes in her opposition that Mr.



            21   Stillwagon has no knowledge of the system as it has



            22  Operated since 1992.  She argues instead, but plaintiff is not



            23   Stillwagon on that subject.  That's the only subject of this



            24   trial.  Our admissions policies; how they'll operated



            25  What we do.  That's the only subject of the trial.

















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             1            Given that we have a comprehensive written



             2  Admissions policy about which there is no real issue about



             3  How it's being operated, that's what the whole trial is



             4  About.



             5            Now, she makes as her final argument that her case is



             6   brief, Mr. Stillwagon's testimony won't be very long, but he's



             7   here.  All that's true.  But his testimony isn't relevant to



             8   anything that we're going to be talking about.  We have the



             9   policy which was adopted two years after he left.  It's being



            10   implemented by new admissions officers.  It's been in effect,



            11   unchanged.  Admissions counselors and officers are charged



            12   with implementing that 1992 policy.  That's all this trial



            13   ought to be about.



            14             THE COURT:  Thank you.



            15             MR. KOLBO:  Your Honor, Kirk Kolbo, for the



            16   plaintiff.



            17            I can be fairly brief.  There's a very simple and



            18   basic reason why Mr. Stillwagon's testimony is relevant.  The



            19   most basic level is to provide the Court some background in



            20   this case.



            21            The 1992 policy was a new written policy, but in the



            22   policy itself, it went on to say, and I'm quoting from the



            23   1992 policy.



            24            "Our object in this memorandum is as much to



            25              ratify what has been done, to reaffirm our goals

















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                                                                     29



             1             as it is to announce new policies."



             2             I think this Court is entitled to hear what about



             3   the old policy that's still in the new policy.  How did the



             4   old policy operated in such a way that one can understand in



             5   what respects the new policy is very similar to it.



             6            There's another reason, your Honor, where I think



             7   there's some relevance to hearing this.  There's a document, I



             8   think it's Trial Exhibit 61, that states the 1992 policy was



             9   basically to address a new articulation as to what had



            10   happened before.  If it's just a new articulation, your Honor,



            11   that's very useful, it seems to me to have the Court



            12   understand how the old policy which in may respects was



            13   similar was articulating.   One of the things the Court will



            14   discover through documents and as well through Mr. Stillwagon



            15   is the law school operated with what is called a Special



            16   Admissions Program.



            17            We think one of the things the evidence will show



            18  In this case is that the law school still operates in



            19  Effect and in substance a special admissions program with



            20   respect minority students.   It would be helpful to the



            21  Court, and that's what we're talking about there, at the most



            22   basic level, there's some helpfulness to understanding what



            23   the old system was like so it can be compared to the new



            24   system in particular with respect to the fact that many



            25  Areas the new system, as I say, ratifies policies of the

















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                                                                     30



             1  Old system.



             2            It's going to be short testimony, your Honor.  I



             3   think it will provide the Court some useful background.  We



             4   took a number of depositions in this case in which we



             5  Learned that virtually all of the current law schools



             6  Officials pled pretty much ignorance about how the system



             7   worked prior to 1992 during Mr. Stillwagon's tenure.  They



             8   simply plead sort of amnesia on that.  So we think it's



             9   helpful for the Court to understand what Mr. Stillwagon was



            10   doing, how he was operating under the mandate of the policies



            11   that were in effect at that time, and to compare them to the



            12   evolution of the policy that occurred in 1992.  We think it's



            13   very relevant in that point, your Honor.



            14             THE COURT:  Thank you.



            15             MR. PAYTON:  I find this almost amazing.  Mr.



            16  Kolbo admits up here that, in fact, none of the current



            17  People had any responsibility for operating the admissions



            18   program since 1992, and he's deposed them all.  He doesn't



            19   seem to know anything about how it was operated in the



            20  1980s.  That seems to me conclusive that what was happening in



            21   the 1980s is not relevant to how they were operating the



            22   system.



            23             Now, we can do a historical sort, you know, sort



            24  Of retrospective on of what's been going in the 1980s, and how



            25   things happened in the 1980s, but if the people who

















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                                                                     31



             1  Operated the policy since 1992 don't have any contact with that



             2   or even know what happened, what does it matter at all, at



             3   all.



             4             THE COURT:  Again, without ruling on its



             5  Relevance, the Court will allow Allan Stillwagon to



             6  Testify.  Again, relevance is not one of the reasons that



             7  I'm making that ruling.  I think that, again, it's important



             8   for each side to put on their case the way they feel it



             9  Should be put on without wasting time of either side and the



            10   Court.  Therefore, the Court will allow that.  As I



            11  Indicated before, the plaintiff's motion in limine as.



            12  To the Intervenors' witnesses I will -- we'll talk about it



            13  You know, at the end of the day, see how much time each



            14  Side needs in order to respond according since I don't



            15  Think it's going to come up for awhile, and we can go from



            16   there.



            17           Any other preliminary matters before we proceed?



            18  Okay -- yes, Mr. Payton?



            19             MR. PAYTON:  This is just housekeeping.  What do you



            20   plan on the way of lunch?  Is there a regular time?



            21             THE COURT:  Good question.  I usually like to



            22  Break for lunch -- what I'd like to do to be honest with



            23   everybody, if we have a witness, and -- I don't like to



            24  Break inbetween, you know -- I like to break at a good



            25  Point so we can do it.  Usually I take a lunch between

















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                                                                     32



             1  12:30, 1:00, 1:15, in that area.  But if we're in the



             2  Middle of a witness, and we can get that witness out by



             3  Working another fifteen, twenty minutes, you know, not have



             4  To bring that witness back --



             5             MR. PAYTON:  An hour?



             6             THE COURT:  An hour is fine.  Is that okay



             7  With --



             8             MR. KOLBO:  That's fine, your Honor.



             9             MS. MASSIE:  Fine with us.



            10             THE COURT:  Okay.  If turns out you need a little



            11   bit more time because unfortunately Downtown Detroit doesn't



            12   have a whole lot of eating spots, let us know, but let's plan



            13   on an hour for lunch.



            14            Okay, we're going to go on the clock.  As I indicated



            15   one other time, I'm certainly welcome to hear some Opening



            16   Statements.  I know a lot about the case.  I've read a lot of



            17   the information in terms of the Motion for Summary Judgment



            18   and so forth.  So you may proceed.



            19            Just so you know about the time -- and as I



            20   indicated, there's going to be a sheet up here every day.



            21   David and Steven will be keeping time.  We've got three



            22  Time watches.  The time will be any time that's used --



            23  Other than objections unless the objection -- if it's too



            24  Hard to stop and go on with the objection, with the



            25   understanding that I wanted to do it just to keep things in.

















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             1  Perspective.  I mean, if someone needs an extra hour or



             2  Two, or something, I'm not going to tell you, you can't do



             3  It.  But it's just so we have some way of keeping it together.



             4   But on the same token if someone needs another twenty hours,



             5   you're probably not going to get it, but I'm not going



             6  To say, you know, for a couple of hours that you can't -- if



             7   you have some things that you have to -- that are



             8  Important to you, that you have to put in, I certainly



             9   understand.



            10            The record should reflect that we talked about -- the



            11   time I gave you was really based upon the estimates you gave



            12   me in terms of how long you thought the case should take and



            13   so forth.



            14            With that said -- oh, the other thing, there's



            15  Going to be some sheets up here.  We're just going to do a



            16   cumulative total every day.  You are more than welcome



            17  To take a look at the sheets.  We're just going to keep them



            18   right here.  There's no secret.  My law clerks are going to



            19   keep the time.  We have a backup timing, Jeremy Segal, he's



            20  An undergrad student at the University of Michigan. They have



            21  A program up there where we take an undergrad student every



            22   year through one of the professors.  So he spends a



            23  Semester with us.  And he's going to be kind of a backup



            24   timing.  And we also have student from Wayne University who's



            25   an undergrad student that wanted to -- just kind of

















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                                                                     34



             1  Back us up in case we forget to turn the clock.  The student



             2   from Wayne isn't here today, but he'll be here tomorrow.  He



             3   will be probably every other day with Jeremy or something of



             4   that nature.  Just so everybody who he is.



             5            Okay.  You may proceed.



             6                        OPENING STATEMENT



             7             MR. KOLBO:  Thank you, your Honor.



             8             Again, Kirk Kolbo, on behalf of the plaintiff.



             9             I know, your Honor, that you are very familiar



            10  With the facts of this case, and I'm going to be very



            11  Brief.



            12            We have a simple case.  I simply want to give the



            13   Court sort of an idea of what we're going to be doing and what



            14   our time frame is.  We expect to put our case in, in one or



            15   two days, perhaps three days at the most.  And I just want to



            16   tell the Court a little bit about what that's going to look



            17   like.



            18            In a technical sense, your Honor, I think our



            19  Burden actually has already been met in this case in so far



            20  As the Court is not going to be trying the question of



            21  Whether or not race was used as a factor in the admissions



            22   process.  I think technically probably once that point had



            23   been conceded, the burden shifted to the defendants to



            24   establish a compelling governmental interest which, of course,



            25   the Court has taken under advisement as a matter of

















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                                                                     35



             1  Law in terms of whether diversity is that interest.  And,



             2   secondly, their burden is to demonstrate that if they have



             3   established a compelling governmental interest that the means



             4   that they use, the manner, the extent to which they take race



             5   into account in the admissions process is a narrowly tailored



             6   one.  And I understand that basically is the fact, that legal



             7   question, is what's going to be tried here in the next several



             8   weeks.



             9            Although we're not technically perhaps required to



            10   put on evidence at this point in view of that burden and the



            11   burden shifting, we do think it's appropriate as the



            12   plaintiffs in this case to let the Court hear and to have the



            13   plaintiffs go forward with some of the evidence on the manner



            14   and the extent to which race is used in the process.



            15            We're going to do it basically, your Honor,



            16  Through three witnesses, and then a variety of documentary



            17   evidence as well as some deposition designations in the



            18  Case, your Honor.  We're going to start out as the Court



            19  Has already heard the motions in limine with some background



            20   testimony.  And I except that background testimony to be



            21   provided by Mr. Allan Stillwagon who was involved in the



            22   Admissions Office, was the principal Admissions Officer,



            23   responsible for carrying out the admissions policy of the



            24  Law school from about 1979, until about -- I think the



            25  Last year, the last academic year for.

















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                                                                     36



             1



             2   which he made admissions decisions was 1990.



             3            I expect that Mr. Stillwagon will provide testimony



             4  In some detail but in particular with respect to how



             5  The law school operated what it called very candidly at the



             6   time and accurately a special admissions program that operated



             7   for minority students, for certain designated minority groups.



             8   And that program I believe he will explain again in much



             9   detail than I'm going to elaborate on here, provided that



            10   through a series of faculty resolutions and mandates



            11   throughout the 1970s, I think principally the faculty mandated



            12   that the admissions office was responsible for making



            13   admission decisions in a manner that would lead probably to



            14   the enrollment of approximately ten to twelve percent



            15   unrepresented minority students from the designated minority



            16   groups.  And that the special admissions program was to be



            17   used if that enrollment level couldn't be reached through the



            18   regular admissions process.   And effectively, I think what



            19   Mr. Stillwagon's testimony will demonstrate and we think a



            20   number of the documents that we will be offering as well will



            21   demonstrate that the special admissions program was, in



            22   effect, basically a manner of considering academic credentials



            23   of minority students, of these designated minority students



            24   under a very different and lower standard that was generally



            25   applicable in the regular admissions process.  That will be

















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                                                                     37



             1   kind of a background, your Honor, for what I believe is pretty



             2   much undisputed about the way the admissions process worked at



             3   least up until the time that Mr. Stillwagon departed again,



             4   that last academic year was for 1990.



             5            Then, your Honor, our second witness is



             6  Going to be the current director of the admissions office



             7  For the law school.  Her name is Ms. Erica Munzel.  I believe



             8   her testimony will be -- and I'm not going to go into any



             9  Detail here, your Honor, because we'll get this in the



            10  Course of the trial -- but Ms. Munzel I believe has been



            11  In the admissions office since approximately January or so of



            12   1993.  She was associate director, basically number two in



            13   charge next to Dennis Shields until approximately I believe



            14  It was early of 1998 sometime.  And since 1998, she has been



            15   either the acting director of admissions or the director of



            16   admissions for the law school.  So that she is the one.



            17  That is knowledgeable about how admissions have worked in the



            18   law school for the last couple of years before that, at least



            19   back in 1993.  And she is the individual that is knowledgeable



            20   about how the admissions policies work to date in light of the



            21   new policy.  So we're going to have some testimony from her on



            22   that subject.



            23



            24           Finally, your Honor, our last witness will be our



            25   expert witness in this case, Dr. Kinley Larntz.  He is

















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                                                                     38



             1   professor emeritus at the University of Minnesota where he



             2  Has taught, I believe approximately thirty years.  He is



             3  The former chairman of the University of Minnesota's



             4  Department of Applied Statistics.  And I'm not go into any



             5   detail here, your Honor, with respect to Dr. Larntz' expected



             6   testimony.



             7            There were, as the Court is familiar, we filed about



             8   five -- four or five of his reports as part of the Summary



             9   Judgment record.  Much of his testimony, in fact, really all



            10   of his testimony, the substance of it, will be based on large



            11   part upon those expert reports.  We put together a



            12   presentation for the Court, sort of a summary presentation



            13   because the report themselves are very extensive and it would



            14   take days to have a witness take us through it.  So we put



            15   together an abbreviated sort of summary presentation that Mr.



            16   Larntz, Dr. Larntz will present to the Court as part of his



            17   testimony.



            18            And basically what Dr. Larntz did, your Honor, as a



            19   statistician, he worked with -- he was given access to the law



            20   school's database.  They maintain a data base each year that



            21   contains a variety of information and characteristics on



            22   applicants, residencies, grades, test scores, gender, a



            23   variety of things.  And he was able to do a variety of



            24   comparative physical analyzes with that database basically for



            25   a six-year period, your Honor.  From 1995, which is the first

















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             1   year to which this class has been certified right up until the



             2   most current class, the first-year class that was enrolled in



             3   the year 2000.



             4            And what we expect that Dr. Larntz' testimony will



             5   show is that race is not just used as a -- I guess a plus



             6   factor that might sometimes tip the scale in close cases, but,



             7   in fact, it was more in the nature of a super factor that has



             8   enormous consequences, particularly at middle ranges or a



             9   combination of LSAT scores and undergraduate grade point



            10   averages.



            11            I use a lot of sort of comp English when I talk about



            12   size, your Honor, of the preference we believe is pretty



            13   clearly given at the law school for race.  But what we asked



            14   Dr. Larntz to do is try to put that in a little more



            15   scientific and quantitative form, and that's what we expect



            16   his testimony will do.



            17            And, finally, your Honor, we also intend to put



            18  Our case in through a number of exhibits, deposition



            19   designations and so forth.  At the end, we expect your



            20  Honor, to be able to demonstrate not simply by the



            21   preponderance of the evidence that race is used in an



            22  Improper manner here, but we think we can establish that



            23   decisively through the evidence and the witnesses that you



            24   will hear in the next two weeks.



            25             THE COURT:  Thank you.

















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             1             MR. KOLBO:  Thank you, your Honor.



             2             THE COURT:  I appreciate it.



             3                      OPENING STATEMENT



             4             MR. PAYTON:  Good morning, your Honor.



             5            Mr. Kolbo is correct that it is probably realistic to



             6   look at this case as having the burden that primarily falls on



             7   us since we have an affirmative defense.  And I think I'm



             8   going to try to be brief, but I'll be a little bit longer than



             9   Mr. Kolbo, but not that long.



            10            This case -- we're going to use a few of the



            11  Exhibits just in the course of this matter here.  This



            12  Case, unlike some others, about the use of race as a



            13  Factor, along with many other factors in the admissions



            14   process.  Is greatly helped by the fact that we have a



            15   comprehensive written admissions policy that governs all



            16   admissions.



            17            The three witnesses that Mr. Kolbo indicated he's



            18   going to call, Mr. Stillwagon, as you will see as I think



            19   everyone has conceded, the plaintiffs as well, doesn't know



            20   anything about that policy.  It was developed after he



            21  Left.



            22            Mr. Larntz, the plaintiff's statistical expert also



            23   does not know that policy.  He has constructed a model that



            24   generates the number that Mr. Kolbo was referring to



            25  And his model does not reflect our process.  And I don't

















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             1  Even think he claims it reflects how we make our admissions



             2   decisions.



             3            Now, Ms. Munzel, another of his witnesses, is our



             4   current Director of Admissions, and she certainly knows how



             5   the policy works.  And she will testify that race is merely



             6   one of many factors that are taken into account on a



             7   file-by-file basis to achieve one aspect of our comprehensive



             8   admissions policy that values diversity.  She will make it



             9   point blank that there is no dual system.



            10            Mr. Kolbo left the impression that the odds of a



            11   minority student getting, versus a majority student getting



            12   into the University of Michigan were much higher.  He said



            13   that race is -- and I use every day language a super factor of



            14   enormous consequences.



            15            Let me give the Court the numbers that I believe



            16   matter.  And that will be presented to the Court as



            17   undisputed, that is, the data is the data.



            18            For 1997, that's the year that Ms. Grutter



            19  Applied, three hundred African-American students applied to



            20  The University of Michigan Law School, three hundred.  Of



            21  Those three hundred, two thirds were rejected.  And only



            22  One hundred three were offered admissions.  That's 34.3



            23  Percent were offered admission.  Twenty-seven came.



            24   Twenty-seven out of a class of three hundred and sixty-two,



            25   7.5 percent.  Same year, 1997, one thousand nine hundred

















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             1   eighty-two white students applied to the University of



             2   Michigan Law School.  Of those one thousand nine hundred and



             3   eighty-two, seven hundred and eighty-three were offered



             4   admission, 39.4 percent.  A higher percentage of offers than



             5   for the African Americans.



             6            Put it the other way, the law school rejected a



             7   larger percentage of the African American applications, than



             8   the percentage of the White applications.  Two hundred and



             9   thirty-three of the white offerees came.  Out of the class,



            10   same class, three hundred and sixty-two, that's 64.4 percent.



            11   About nine times the number of white students came than



            12   African Americans.



            13            I would say that by any measure, any measure at



            14  All, the numbers of minority students that we have the



            15   University of Michigan Law School, have been modest,



            16   twenty-seven African Americans in Ms. Grutter's year of



            17  1997.



            18            Professor Steven Raudenbush, our expert on



            19   statistical analysis, has reviewed all of this data.  And



            20  His analysis shows that even if there was no minority



            21  Students at all, that is, if we simply eliminated the



            22   under-represented minority students from the applicant



            23  Pool, just took them out, that the resulting increase in the



            24   rate of admittance for the black students would be marginal.



            25   It would be an increase of six percent.  It would go from

















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             1   thirty-eight to forty-four percent in 1997, Ms. Grutter's



             2   year.  That's if all the minority students were simply



             3   excluded.



             4  And what's driving this is the fact that there aren't but so



             5   many under-represented minority applications or students in



             6   the first place.  And, therefore, their presence or not can



             7   only have a marginal impact on the overwhelming remaining



             8   applicants and students.



             9            People show that Mr. Larntz' analysis of this entire



            10   issue is, in fact, fundamentally flawed.



            11            This trial is limited to the three issues that



            12  The court has set forth.  But it's really important that



            13  These issues be viewed and appreciated in the larger



            14  Context in which they arise.  To fully understand -- to



            15  Take the Court's first question, the extent to which race



            16  Is a factor in the admissions process, it's crucial to



            17  Know why we use race at all.  In fact, the plaintiff's one



            18   witness, Gail Heriot, will say that. We'll introduce



            19  Portions of her deposition testimony in which she stated



            20  That an admissions policy like the Harvard policy that's



            21   attached to the Bakke opinion, or like the policy right



            22  Here before the Court, the extent to which race is considered



            23   in the admissions process is in large part a function of.



            24  What you mean by a critical mass.  That's why Mr. Syverud's



            25   testimony is going to be important.  That's

















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             1  Why a lot of witnesses are going to talk about what critical



             2   mass is.



             3            The educational benefits only come about if there is



             4   critical mass.  And we take race into account only to that



             5   extent.



             6            Now, there's no mystery or subterfuge here.  We set



             7   forth a comprehensive written admissions policy in 1992, in a



             8   document drafted by a faculty committee that was established



             9   by the dean and adopted by the full faculty of the law school



            10   as the policy of the law school.



            11            As I said in talking about Mr. Stillwagon, the



            12   stipulated facts are that the director admissions is charged



            13   with implementing that policy.  The policy I think is Exhibit



            14   4.  You've seen it?



            15             THE COURT:  I've seen it.  Is it Trial Exhibit 4.



            16             MR. PAYTON:  I believe we tried to keep the same



            17   numbers.



            18             THE COURT:  I've seen it many, many times.



            19             MR. PAYTON:  This is it.  And we're going to hear



            20   from a number of witnesses about this policy.  We're going



            21  To hear from Lee Bollinger, the dean, that in the fall of



            22  1991, appointed the Faculty Admissions Committee and



            23  Charged them with looking into all of this.  And the



            24  Committee drafted the policy.  And Dean Bollinger presided



            25  Over its adoption by the full faculty in April of 1992.  And

















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             1   Mr. Bollinger is currently president of the University of



             2   Michigan.



             3            We'll hear from Jeff Lehman who was a faculty member



             4   of the Faculty Admissions Committee that drafted the policy in



             5   1991-1992, and he's the current dean of the law school. We'll



             6   hear from Dennis Shields, who is one of the individual



             7   defendants in this case who was then newly recruited to be the



             8   Director of Admissions in the summer of 1991, and whose



             9   initial emergent into Michigan law school was serviced on this



            10   committee with the faculty charged with coming up with a new



            11   policy.  He contributed to the policy; functioned with the



            12   committee; met the faculty; and helped design the program that



            13   he was then charged with implementing.  We'll hear from



            14   Richard Lempert who was the professor who chaired that



            15   committee in 1991.



            16            The policy is a comprehensive policy about all



            17   admissions.  It makes it clear that the law school desires a



            18   class of excellent students that have varying backgrounds and



            19   experiences; recognizes that students learn a great deal from



            20   each other.



            21            So the question is:  How do you select the students



            22   to achieve those things?  The policy states that the most



            23   general measure predicting academic success is a composite --



            24   and this is on page 3 of the policy -- is a composite - I'm



            25   giving just a short little quote here,

















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             1            "An applicant's LSAT score and undergraduate



             2             gradepoint average."



             3            It notes that these measures are far from perfect,



             4   certainly not complete.  And, in fact, it notes at the bottom



             5   of page 3, that,



             6            "At Michigan the index for three of the four most



             7             recently admitted classes, the grades and test



             8             scores explain on average 27% of the variance in



             9              the first-year graded performance."



            10            That means that nearly three-fourths of the



            11   difference in those grades, cannot be explained by the



            12  Grades or the test scores. But, you know, the general



            13  Matter, higher is better.  But the policy makes it quite clear



            14   and explicit that -- and this is on the next page, page 4,



            15   quote,



            16              "Even the highest possible score ought not



            17               guarantee admission."



            18            And it goes on, the next page, quote,



            19            "A low score ought not automatically deny a



            20             candidate admission."



            21              We don't admit LSAT scores.  And we don't admit



            22   GPA's.  We admit whole students, whole persons.  And there is



            23   a whole lot of other information and practices that are



            24   important in making a decision and judgment upon any



            25   applicant:  Recommendation, essays, curriculum, undergraduate

















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             1   institutions, trend in grades, experience, et cetera.  As the



             2   policy says, considerable discretion is exercised in the



             3   admissions process, and it ought to be.



             4            Here's the point: Once the director of admissions



             5   concludes that an applicant would succeed academically at



             6  The law school and is, therefore, qualified, every such



             7   applicant has a chance of being admitted.  At that point



             8  It is up to the applicant to make the case that this



             9  Discretion that the policy sanctioned should be exercised in



            10   his or her favor.



            11             This evaluation is the essential point of the



            12   file-by-file review that the Admissions Office follows



            13   regularly and without exception.



            14            Now, everything I've just said about the admissions



            15   process and the admission policy applies to all applicants,



            16   minority, non-minority, everybody.  I have described the



            17   general policy.



            18            The policy often notes that there are two



            19  Principal reasons why applicants may qualify for



            20  Admission despite having scored not at the very top of the



            21   range.  First, there are applicants as the policy said for



            22   whom we have good reason to be skeptical of their scores.



            23  The policy gives an example, Student X -- the policy refers.



            24  To the student as Student X.  That's a student that had good



            25   grades but not nearly as good LSAT.  And on closer review

















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             1  Of the record, it turned out that that same student had



             2  Very, very good grades in college, but the same not so good



             3   LSAT scores, had out performed the test.  And that's one of



             4   the reasons you allow exceptions.  You can take that into



             5   account.



             6           This first category, again, applies to all



             7  Students.  And I will note that the example of Student X



             8  Is.  In fact, a real student who was just summed up in there



             9   and made anonymous, a real student, and it was a white



            10   student.  But it could have been any student who benefited



            11   from that.



            12            The second reason why an applicant may qualify for



            13   admission if the score is not at the very top of the range is



            14   that the policy says that -- it's nine of ten of the policy



            15   is,



            16            "This may help achieve that diversity that has.



            17            The potential to enrich everyone's education and.



            18            thus make a law school class stronger than the sum.



            19            of its parts.  In particular we seek to admit.



            20            students.  With distinctive perspectives and



            21            experiences."



            22            Now, the policy makes clear and the witnesses will



            23   explain that this is diversity in the broadest sense of the



            24   word, students with distinctive experiences and perspectives



            25   as well as students that make special contributions to our

















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             1   profession and our society.



             2            Again, the policy gives examples.  A student



             3   originally from Bangladesh who had absolutely outstanding



             4   recommendations, and very impressive experiences, but only



             5   moderate achievement.  A single mother who had very impressive



             6   personal experiences, but who had very good academic



             7   achievement but modest scores.



             8            The policy also lists other possible achievements



             9   that could be noted, taken into account by future admissions



            10   committees, future directors of admissions.  Ph.D. in physics.



            11   It mentioned an Olympic Gold Medal, a Vietnamese boat person.



            12   It wasn't suppose to be a rigid fixed category.  Simply life



            13   experiences, perspectives that could bring some real



            14   contribution to the diversity and the livelihood and vitality



            15   of the law school class.



            16            That's the question that gets asked all the time,



            17   will they make the law school a more lively and vibrant place



            18   in which to study law for all applicants including the -- the



            19   policy makes it absolutely clear that they must demonstrate



            20   sufficient academic strength to be able to thrive at the law



            21   school.



            22            And then on page 12, the policy references the law



            23   school, "



            24            "Commitment to racial and ethnic diversity



            25             with special reference to the inclusion of students

















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             1             from groups that have historically been



             2             discriminated against including African-



             3             Americans, Hispanics, and Native Americans, who



             4             without this commitment might not be represented



             5             in our student body in meaningful numbers.  These



             6             students are particularly likely to have



             7             experiences and perspectives of special



             8             importance to our mission."



             9            This commitment, the witnesses will explain is part



            10   and parcel of the law school's boarder interest in creating a



            11   lively and diverse student body "by enrolling" - -this is



            12   where it references critical mass,



            13            "By enrolling a critical mass of minority



            14            students we have ensured their ability to make



            15            unique contributions to the character of the law



            16            school."



            17            Racial and ethnic diversity is a part of the value



            18   the law school places on general diversity.



            19            The policy was drafted to make these points clear and



            20   very unambiguous.  I should note and I think the Court noted



            21   at the beginning that the Court has under submission the



            22   evidence that we presented in connection with our motion for



            23   summary judgment regarding the significance of the educational



            24   benefits that come from having a racially diverse student



            25   body.  And Mr. Purdy this morning said that no one has taken

















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             1   issue with the fact that there are educational benefits that



             2   come from having a racially and ethnically diverse student



             3   body.  That it benefits the education of all students,



             4   minority, non-minority.



             5            And as an educational matter this is especially



             6   important because of the fact that -- and unfortunately



             7  We continue to be plagued by a segregated society.  And I



             8  Would also add it has special significance for the legal



             9   profession.



            10             That's the admissions policy, your Honor.  You'll



            11  Hear the testimony from the drafters, the two deans under



            12  Which it has operated and the two director of admissions that



            13   have operated it.  So given that context what is the extent



            14  To which race is a factor in the law school's admissions



            15   decision?  The answer can't be quantified.  It's one race.



            16   It's one of many factors that are considered.  It's simply



            17  A part of the effort to have a diverse student body.  And



            18  It's taken into account to achieve that necessary critical



            19   mass.



            20            I don't think there's going to be an argument that



            21   you have to have a critical mass.  The extent to which it is a



            22   factor has to do with the minority applicants.  Each file,



            23   each file is individually read.  The extent to which race is



            24   taken into account will effect -- may effect a decision, but



            25   it will effect in ways that vary from file-to-file, from

















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             1   applicant-to-applicant because you read each file,



             2   cover-to-cover.  Race is not given, however, so much weight



             3   that it prevents each applicant regardless of race from



             4   competing with all other applicants to gain admissions to a



             5   law school.



             6            To the contrary.  As to the admissions data that I



             7   referred to earlier, the 1997 data shows the law school



             8   rejects many minority applicants, two thirds of the



             9   African-Americans that year.  And this is not an isolated



            10   year.  That's a pattern across all the years.



            11            Again, in 1997, it rejected a larger percentage of



            12  The African-American applicants and the White applicants.



            13  No one, no one could fairly examine that data and conclude that



            14   race was an excessively weighed factor much less a trump card.



            15   It's certainly not a super factor. It certainly does not have



            16   the form of significance.  But the question becomes:  Isn't



            17   there some way to quantify this use of race?



            18            As Mr. Kolbo has indicated his expert, Kinley Larntz,



            19   has purported to do.   Actually there isn't.  Mr.  Larntz'



            20   analysis is flawed.  And our expert, Professor Raudenbush,



            21   will show that.  Moreover, not only his is method flawed, the



            22   way he has implemented his own method is flawed.  And thus he



            23   has misleading, and I'll say fantastic, what he's going to



            24   call odd ratios.



            25            There is another point:  The plaintiff's effort to

















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             1   reduce our admissions process, the entire process to two



             2   numbers, LSAT and grades, plus race is fundamentally at odds



             3   with how we make any admissions decision. The plaintiff has



             4   completely ignored how the decisions are actually made and has



             5   substituted an artificially three-factor analysis: grades,



             6   LSAT, race.  And as long as misleading that this is, I just



             7   want to take a look at it on its own terms which I think are



             8   incorrect, but on its own terms.



             9            Now, we produced in discovery the database that Mr.



            10   Kolbo talked about that has a lot of data, but it's limited



            11   data, but it has a lot of data that describes students, where



            12   they're from, where they went to college, what they LSAT score



            13   was, what their grades were, et cetera.  And that's the data



            14   that Mr. Larntz, plaintiff's expert used to come up with what



            15   he's going to present to the Court.



            16            We produced a chart that graphically illustrates that



            17   same data.  A number of witnesses will testify about the



            18   charts we produced.  I just want to show them to you.  It



            19   began in 1997.  Here's what I want to show.  It is a chart



            20   that shows the admitted majority students.



            21             THE COURT:  What exhibit number is it, just for the



            22   record, do you know?



            23             MR. PAYTON:  It's coming.



            24             THE COURT:  That's okay.



            25             MR. PAYTON:  I'm going to walk up and talk loud

















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             1   enough for everybody.  Can you see that?  Can you look at your



             2   Exhibit 180?



             3             THE COURT:  Sure.  It's here.  I'd like to have it.



             4   It will take me a minute to get it in the right order.



             5             MR. PAYTON:  It's Volume 13, and it's Exhibit 180.



             6             THE COURT:  You may proceed.



             7             MR. PAYTON:  And what we have is we have a graph, a



             8   chart.  On the left side it shows the range of LSAT scores,



             9   twenty, all the way up to one eighty.  And on the bottom it



            10   shows the ranges of GPA's.  It's just a graph.  And this plots



            11   every single one of the majority admitted students for 1997.



            12   And they're bunched in the upper right-hand corner just as Mr.



            13   Kolbo indicated the policy says we try to get people who are



            14   bunched up there, okay?  So that's every admitted majority



            15   student, okay.



            16            Now, I'd to put up the same chart for the admitted



            17   under-represented minority students.



            18             THE COURT:  What number is that?



            19             MR. PAYTON:  One eighty-one.



            20             THE COURT:  Okay.



            21             MR. PAYTON:  And this has the exact same scale.  And



            22   it shows every single one of the admitted under-represented



            23   minority students.  Again, bunched in the upper right-hand



            24   corner.  And these are transparencies so I'm going to overlay



            25   them, and then synchronize the scale so they're on the exact

















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             1   same scale and you can see that now what we see is a glob of



             2   all of the students.  This is now all of the students.  And



             3   you can see the overlay.  If you could pull it apart so that



             4   the judge could see just what the overlay looks like.  Put it



             5   back up there.  You will see that there is considerable



             6   overlap between the admitted majority students and the



             7   admitted under-represented minority students.



             8            Now, we can do the same thing for the students who,



             9   in fact, were rejected in 1997.  So if we put up the majority



            10   students who didn't get in.  And, this is very single one on



            11   the exact same chart.  And we just put on top of that the



            12   overlay of the rejected minority students.  I'm going to put



            13   it right on top.  And, again, you see there's considerable



            14   overlap in the rejected students.



            15            Now, what we see from this is really quite dramatic,



            16   that what you would have expected to see given the way the



            17   plaintiffs have presented this evidence is two completely



            18   different universes of applications, okay, and that the



            19   enormous gap, the terrible gap that he referred to in the



            20   summary judgment was a super factor, the enormous consequences



            21   that he referred to this morning, you would expect to see



            22   completely different universes of the plots, but you don't.



            23   In fact, you see that they look like one of the same thing,



            24   just two little parts.  And you can see that clearly there is



            25   some difference, but it's clearly a difference that is much,

















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             1   much smaller than the rhetoric has indicated.



             2            That's the actual data.  We just plotted it, okay?



             3   We didn't do anything else with it but plot it up there so



             4   that it can be seen because the visual is really quite



             5   dramatic.  It also shows and I think this is also important



             6   that every one of these students looks really strong on just



             7   these two measures.  They're all up there in the upper



             8   right-hand corner.



             9            Now, we don't deny that we use race.  We don't deny



            10   that we take race into account.  We don't deny that it's a



            11   factor that can make a difference.  If it wouldn't make a



            12   difference, it wouldn't be a real factor.  But as these charts



            13   reveal, we use race quite judicially.



            14            Now, I now want to look at how the decisions are



            15   actually made because this is about an artificial world.  That



            16   doesn't reflect how we make decisions.  When I said we don't



            17   admit LSAT scores, we don't admit LSAT scores.  We don't admit



            18   GPA's.  We look at whole people.  And this will become really



            19   clear in the testimony of Ms. Munzel, Mr.  Shields, the two



            20   directors of admissions.  There's simply no mechanical process



            21   of selecting students for admissions.  Every file is read.



            22   Every relevant factor is considered, and individual judgments



            23   are made.



            24            You're going to hear testimony about how the



            25   admissions process operates.  I'm going to describe it

















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                                                                     57



             1   briefly.



             2            An application comes in.  The application is put into



             3   a file folder.  Some information, most of the information



             4   that's in this database, name, address, test scores, grades,



             5   whether the applicant's a Michigan resident, race, gender,



             6   undergraduate institution, that kind of information is loaded



             7   into a database.   When letters of recommendation and the



             8   transcripts are received the file is ready, is complete, it's



             9   ready to be reviewed.



            10            Then usually the director of admissions, but every



            11   now and then someone, but usually the director admissions then



            12   reads the file folder.  They start by looking at the objective



            13   factors, some of the factors, the grades and the test scores.



            14   The first impression of an applicant.  And we're going to see



            15   an actual -- and we're going to redact the name of the actual



            16   student, but we're going to go through an actual file folder



            17   so you can see exactly how this works and appreciate how the



            18   process works, that there's a report in there that's prepared



            19   by a centralized organization, Law Services, and it assembles



            20   various information.  And the report will give you a sense not



            21   only of what the grades and the test scores are, but will put



            22   it in the context of every other student from that student's



            23   college who has also applied to law school.  So you can see



            24   just how that student did in comparison with all the other



            25   students that are coming from a college and are trying to get

















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                                                                     58



             1   into law school.



             2            Let me just also mention something to just sort of



             3   set it aside because there's been something that's misleading



             4   here.  There has been some mention, at times a lot mention of



             5   what's called the law school index score.  And that is a score



             6   that reflects the relationship between the LSAT, undergraduate



             7   grades, and first year law school grades.  Now, there is such



             8   an index formula and there is an index score.  However, we



             9   don't use it to make decisions at all about admitting or not



            10   admitting a student.  We don't use it at all for that purpose.



            11   It's not even in any student's file.  It's not there.  When we



            12   go through a file you'll see there's no place where there is



            13   an index score.



            14            The index score is instead used simply to figure out



            15   the order in which you want to read files.  It's just a way of



            16   sorting files you want to read.  But let's go back to the



            17   file.



            18            For every single applicant, they go in and read the



            19   rest of the file, no matter how high or low the LSAT scores or



            20   the grades are.  They turn to the undergraduate transcript.



            21   They figure out what they can from the applicant, from all of



            22   that.  Where did the applicant go to college?  What kind of



            23   classes did the applicant take?  Was thee a trend in the



            24   grades?  Was the transcript padded with easy courses?  Did the



            25   applicant compare himself or herself for the study of law?

















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                                                                     59



             1   They turn to the applicant's essays.  What makes this person



             2   tick.  What have they done.  What does this person have to say



             3   about why they're applying to law school. Is there anything in



             4   their background or experiences that make them unusual or



             5   interesting that leads you to think that they will make



             6   special contributions to their fellow students and their law



             7   school class?  Do they have something interesting to say?  Are



             8   their essays well written?  Can they describe something about



             9   their activities, interests, or background which actually is



            10   of note.  And then they'll look at the letters of



            11   recommendation.  Do the applicant's college professors speak



            12   of the applicant?  Do their supervisors or their colleagues



            13   work?  Is this someone who would contribute to the class?  Is



            14   it likely that this person would contribute to the education



            15   of their fellow students?  Is there something in their



            16   background that the recommender can tell us.



            17            And, yes, one of the things that they also look at



            18   and consider is the applicant's race.  Will they contribute to



            19   a racial or ethnic diversity at the law school?  And part of



            20   this is about the concept of critical mass, no doubt about



            21   that.  It's not as if, however, there's a particular number of



            22   law students that is critical mass.  But one of the purposes



            23   of the admissions process is to make sure that there are more



            24   than a token number of minority students because in order to



            25   get the benefits of diversity, you can't create a sense of

















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                                                                     60



             1   isolation among the minority students as you do when you just



             2   have token numbers.  Otherwise,  you will not get the benefits



             3   that you're seeking.



             4            It's not a matter of a concept you can put a specific



             5   number on.  But I think everyone understands what the concept



             6   is about.



             7            Quote -- this is from Bakke,



             8            "When the committee on admissions reviews the



             9             Large middle group of applicants who are



            10             Admissible and deem capable of doing good work in



            11             Their courses, the race of an applicant may tip



            12             The balance in his favor just as geographic origin



            13              or life spent on a farm may tip the balance in



            14              other student's favor."



            15            That's Justice Powell in Bakke.  And that's just what



            16   our policy's contemplates and just what we do.



            17            "So long as the university proceeds on



            18             an individualized case-by-case basis, there



            19             Is no warrant for judicial interference in the



            20             academic process."



            21            That's Justice Powell in Bakke again.



            22            As to the issue of whether the law school's use of



            23   race constitutes a double standard, I think that question can



            24   be very easily resolved.  The elements of the earlier and



            25   discarded special admissions program that Mr. Kolbo talked

















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                                                                     61



             1   about, a special admissions program, they simply don't exist



             2   any more at all.  The evidence will show conclusively that



             3   there are no separate consideration of minority or



             4   non-minority applicants.  That there's no separate data base.



             5   That there are no separate readers of certain files.  That



             6   there are no separate anything.  There is one system.  And all



             7   of the applicants are considered by using the same policy.



             8            In fact, other than the fact that the law school does



             9   pay attention, some attention to number, by trying to enroll a



            10   critical mass of minority students, other than that there's



            11   absolutely no difference in the manner that race is considered



            12   and the manner that say, good essays, or colorful letters of



            13   recommendation are considered.



            14            Does the law school have a double standard for



            15   students with good letters of recommendation?  Of course not.



            16   Does it have one standard for students who have leadership



            17   potential and a different and lower standard for students who



            18   do not?  Of course not.



            19            What the evidence will show is that these are factors



            20   that are taken into account in trying to understand the whole



            21   person who is trying to gain admission to the law school.  We



            22   consider whether the applicant has strong letters of



            23   recommendation.  We consider the applicant's leadership



            24   abilities.  We consider whatever is presented that gives us



            25   insight into the applicant's ability to succeed and to

















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                                                                     62



             1   contribute to the law school.  And we consider race as part of



             2   that process.



             3            The term "double standard" is just a label that's put



             4   on by those who think we shouldn't use race as a factor at



             5   all.



             6            Now, yesterday, I think we all reflected on the life



             7   and inspiration of the Reverend Martin Luther King, Jr.  It



             8   was a time to reflect on progress as well as how much there



             9   yet remains to be done.  It remains to be done to bring us



            10   together as a society and to achieve understanding throughout



            11   society.



            12            "It is not too much to say" noted Justice Powell in



            13   Bakke "that the nation's future depends on leaders trained



            14   through wide exposure, to the ideas of students as diverse as



            15   this nation of many peoples."



            16            Justice Powell then noted that the benefits of a



            17   racially and ethnically diverse student body is a matter as he



            18   said, "even at the graduate level" where "our tradition and



            19   experience lends support to the view that the contribution of



            20   diversity is substantial."  And he concluded by quoting these



            21   two sentences by Swett versus Painter, the 1949 case in which



            22   the Supreme Court found "segregated and legal education



            23   unconstitutional,



            24            "The law school, the proving ground for legal



            25            Learning and practice cannot not be effective in

















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                                                                     63



             1             isolation from the individuals and institutions



             2             with which the law interacts.  Few students and



             3             anyone who has practiced law would choose to study



             4             in an academic vacuum removed from the interplay of



             5             ideas and the exchange of views with which the law



             6             is concerned."



             7            Your Honor, the relevant evidence that will be



             8   presented at this trial will establish that the University of



             9   Michigan law school uses race in an appropriate way to achieve



            10   a diverse student body with a critical mass of minority



            11   students.  It will show that the process reviews each



            12   application individually, one by one, using the same



            13   consideration and that that is exactly what Justice Powell



            14   commended in Bakke.



            15             THE COURT:  Thank you.



            16             Ms. Massie?



            17             MS. MASSIE:  Judge, can we take a short break,



            18   please?



            19             THE COURT:  Sure.  Why don't we take our morning



            20   break right now and we'll be all set.  We'll take about



            21   fifteen minutes.



            22                  (Court recessed, 10:20 a.m.)



            23                             -- -- --



            24



            25













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                           1/16/01 - BENCH TRIAL - VOLUME I



        1               (Whereupon a recess is had.)



        2               THE COURT:  Okay.  You may be seated.  Thank you.



        3      Okay.  I can't say that we will always be as prompt as we



        4      are today, but we took everything off our docket today so



        5      that we would be able to accommodate everybody here.



        6      Sometimes when we say fifteen minutes, what the Court calls



        7      a fifteen-minute recess, I get in the back and there's a



        8      million orders to sign and a million phone calls.  My kids



        9      were calling, something's wrong or car doesn't start or



       10      something like that.  So usually fifteen-minute recess



       11      takes a little bit longer, but today we're going to try to



       12      be as punctual as we can, but I don't want you to believe



       13      that that's going to happen all the time, because it just



       14      doesn't.  And next week, one of these weeks coming up, I



       15      don't think it's next week, I may be presiding, which I



       16      will need to handle miscellaneous matters, too, so with



       17      that said, the Intervener's interested in doing an opening



       18      statement.



       19               MS. MASSIE:  Thank you, Judge, we are.  Judge



       20      Friedman, this will be a trial about the most fundamental



       21      concerns this nation has always faced and faces now.  Our



       22      history has taken shape in a field defined by two magnetic



       23      poles; on one hand the pole is segregation and the



       24      maintenance of inequality, and on the other hand, are truer



       25      and better impulse towards racial equality and integration.











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      That tension has defined many sectors of our common light,



        2      but no such sector has been as much defined by that



        3      tension, and has been as in turn as defining of that



        4      tension as education.  This case began as an attack on the



        5      measure of progress that we've achieved.  But it gives us



        6      the opportunity, ironically, to achieve far more.  The



        7      Plaintiff's proofs are, in fact, the Intervener's proofs.



        8                  Only one of our witnesses, a statistician named



        9      Kinley Larntz about whom you've heard a little bit will



       10      have anything to say that bears on her basic claim.  That



       11      claim is that aggregate differences by race and test scores



       12      and grades prove discrimination against white law school



       13      applicants.



       14                  In true, as our witnesses for the intervention



       15      will show, that prove exactly the opposite.  They prove



       16      that continuing and persuasive existence of discrimination



       17      and bias against Black and other minority applicants, not



       18      discrimination against white law school applicants.



       19                  Affirmative action will convince you is the



       20      only way to offset that bias against minority applicants.



       21      In fact, it is only possible to read Kinley Larntz work as



       22      evidence of discrimination against white people by sealing



       23      it up in a factual vacuum chamber and therefore by



       24      implicitly accepting the idea that test scores and grades



       25      are fair and race neutral measures of merit, which is to











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      say, in turn, the view that Black, Latino and Native



        2      American law students are inherently and biologically



        3      inferior.



        4                  The factual erring of all three of the issues



        5      that you have set for trial in this case will definitively



        6      refute that racist and pernicious view.  They'll provide a



        7      context for understanding why the academic criteria are not



        8      race neutral, and why at this moment in our common lives



        9      together they could not be.  They'll show that affirmative



       10      action lessens the extent to which race is a factor in



       11      admissions in real terms, and that affirmative action is



       12      absolutely necessary as a first step toward fairness in the



       13      application process.  And they'll show that race is not



       14      just a box that you check on an application form so that a



       15      statistician can later make distinctions in his data about



       16      it as the Plaintiff would have it, but a whole set of



       17      contemporary and historical experiences in which inequality



       18      and unfairness only ever run one way against black people



       19      and other minorities in this society, not ever, not ever



       20      yet in our history against white people.



       21                  So in the end while Kinley Larntz' work is, we



       22      agree, marred by exaggeration and mythological problems,



       23      its basic point that the criteria differences exist is



       24      correct.  That points the beginning, not the end of the



       25      inquiry.  We'll show why these differences exist, why











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      they're a function of racism; and thus, why the



        2      consideration of race and admissions is an absolute



        3      necessity.



        4                  The discrimination against minorities and



        5      unearned advantages for white applicants which structure



        6      educational opportunity in the broadest sense, including



        7      the opportunity to perform at the highest level and which



        8      are tempered by affirmative action have several sources.



        9      Like we need to begin with broad questions of social and



       10      educational inequality and with the connections between



       11      race and class, but race is a force in American life,



       12      independent of class, and particularly so in education.



       13                  All of our witnesses will help show how these



       14      dynamics are operationalized, are put into effect in higher



       15      education admissions, and how they provide a necessary



       16      context for evaluating the impact of any admissions



       17      program, before you even get to its intent.  What's its



       18      impact, what are its effects?



       19                  Gary Orfeld is one of the foremost experts.  In



       20      fact, it's hard to think of anyone who could really compete



       21      with him for this title on school integration in this



       22      nation.  And he's occupied that position for decades.  He's



       23      from Chicago.  He now teaches at the Harvard School of



       24      Education and he's testified in countless cases involving



       25      integration and education at all levels, often as a











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      court-appointed witness.



        2                  Gary Orfeld will testify about how racial and



        3      equality and segregation are growing in our country right



        4      now, not -- excuse me, not diminishing, but growing.  He'll



        5      talk about the social costs that are associated with that.



        6                  Together with another of our experts, Eugene



        7      Garcia, who's the Dean of the Education School at the



        8      University of California at Berkeley.  Gary Orfeld will



        9      show that affirmative action in higher ed is a necessary



       10      part of increasing equality throughout the educational



       11      system, including in K through twelve; that is to say,



       12      diminishing the current, extraordinarily cruel and



       13      destructive role of race and races in education, including



       14      all the way up on through professional school and through



       15      the application process that leads to it.



       16                  Orfeld and Garcia will show that only



       17      affirmative action can help us move forward.  They -- only



       18      affirmative action can help us move away from a system in



       19      which opportunities are sharply constrained and defined by



       20      race and racism.  Affirmative action, in other words,



       21      diminishes the role of race in education and in, excuse me,



       22      in admissions.  There's no substitute for it.



       23                  K through twelve improvements depend upon it



       24      absolutely.  And we can see how necessary it is for



       25      achieving a measure of integration in higher ed by looking











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      at the demographic figures from the University of Michigan



        2      Law School before this school adopted affirmative action.



        3                  It was a segregated school.  It wasn't



        4      segregated by law but it was segregated, in fact.  And in



        5      law schools in California and Texas where affirmative



        6      action has been eliminated, the schools have returned to



        7      segregation.



        8               Orfeld and Garcia will be testifying principally,



        9      though not exclusively, about race and education with



       10      respect to Black and Latino young people.  We also have a



       11      witness on our may-call list, Faith Smith, who's an expert



       12      on Native American educational affairs and she'll be



       13      testifying, if time permits, about the dire consequences of



       14      eliminating affirmative action on the Native American



       15      community and on Native American young people in terms of



       16      their ability to get any kind of a higher education.  And



       17      that's because of the continuing dramatic effect of race



       18      and racism, of social inequality by Native Americans in



       19      this country.



       20               She'll convince you, Judge Friedman, that when the



       21      University of Michigan Law School takes the race of the



       22      rare Native American applicants who's overcome severe



       23      burdens, to the extent that she or he is even in a position



       24      of being able to consider applying to a law school, much



       25      less a law school such as the University of Michigan.  The











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      law school by taking her race into account is mitigating,



        2      is mitigating race discrimination, not adding to it.



        3               John Hope Franklin will provide historical context



        4      for the program in place at the law school.  He'll testify



        5      that steps toward integrating education have always meant



        6      the reduction of the role of race as a factor in the



        7      starkly unequal distribution of educational resources.



        8               John Hope Franklin has lived through much of the



        9      history that he will describe.  And he's one of the world's



       10      most honored historians as well as being the Chair of the



       11      President's Initiative on Race.



       12               There are two very highly regarded scholars on our



       13      may-call list, both of whom were originally listed by the



       14      university in this case?  Thomas Sugrue, who's a



       15      sociologist and historian.  And Eric Foner, a historian, if



       16      called, make clear respectively the contemporary and



       17      historical significance of race in American life, its



       18      singularity as a category.



       19               Sugrue's research is granted in current data from



       20      the State of Michigan which, as you know, provides about a



       21      third of the University of Michigan Law School students.



       22      It shows that race is connected to class in the state,



       23      very, very deeply, here as elsewhere, I might add.  But



       24      that continuing problems of racism in many forms and



       25      especially of educational segregation mean that race is











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      also an independent dynamic.  It has its own impact on



        2      every aspect of public life in the state.



        3               Eric Foner's work puts the significance of race



        4      and racism in historical perspective showing that in the



        5      context of our history in the United States it's not



        6      plausible to think that we could reduce the extent to which



        7      race is a factor by claiming to be race neutral in higher



        8      ed admissions.



        9               Alls the ways in which discrimination against



       10      minorities and race-based inequality continue to pervade



       11      and structure the educational process.  And they have shown



       12      to obtain on the very campuses that provide the largest



       13      number of student applicants to the University of Michigan



       14      Law School.  The Intervener's Commission to Study of



       15      Conditions for Black, Latino and Native American students



       16      on four of the main feeder schools to the law school; the



       17      University of Michigan itself, its undergrad college,



       18      Michigan State University, UC Berkeley and Harvard.



       19               The team of researchers who conducted the study



       20      was headed by Walter Allen, who's an educational



       21      sociologist at U.C.L.A. who's testified many times in



       22      critical and groundbreaking cases involving educational



       23      desegregation at all age levels, including Knight versus



       24      Alabama and Ayers versus Fordice.  He's also testified in



       25      other race discrimination and affirmative action cases.











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      And he's received numerous awards for teaching, research,



        2      distinguished careers, scholarship, etc.  He was joined,



        3      among other people by Dan Sowarzanaw, who teaches in the



        4      educational school at U.C.L.A. who we may call if time



        5      permits.



        6               Across the range of geography and across the range



        7      of selectivity represented in the campuses which were



        8      studied, the four campuses which were the locusts for the



        9      study, the team found overwhelming evidence to confirm and



       10      sharpen findings of long-existing research on the severe



       11      barriers and pressures that face minority students on



       12      mostly white campuses.  These are pressures and barriers



       13      that they face, due only to their race, that the pressures



       14      and barriers isolated out of all the other pressures and



       15      barriers that students, as a whole, all students can feel



       16      on campuses.  They're not related to class, though there



       17      are particular -- there's a greater likelihood that a set



       18      of pressures and barriers associated with class is going to



       19      be faced by more of these students.  Those are dealt with



       20      in the study.  But the study is focused on the pressures



       21      and barriers that, specifically, relate to race and to the



       22      continuing problems of racism in the environment on those



       23      campuses.



       24               Those disadvantages and stresses have real



       25      concrete demonstrable effects on academic performance.  And











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      that's one of the key points and one of the key findings of



        2      the study.  It shows definitively that the very slight gap



        3      between aggregate GPAs of white students and minority



        4      students at the University of Michigan Law School, half of



        5      the data that Kinley Larntz relies on for his study is an



        6      artifact of discrimination against the minority students,



        7      not against the white students.



        8               Grades aren't a race-neutral measure of academic



        9      performance in undergraduate education, rather they capture



       10      the way in which disadvantage for minority students from



       11      racial profiling and racist slurs to subtler kinds of



       12      stigma, exlcusion and hostility continue to completely



       13      define the experiences of Black and Latino and Native



       14      American students on those campuses, continue to define the



       15      experiences of those students, I should say, every day,



       16      every day.



       17               If race weren't a factor in admissions to the law



       18      school, those forms of racist unfairness and bias wouldn't



       19      be just ratified, they would be intensified.  Existing



       20      racial discrimination would be found to be a basis for



       21      further racial discrimination.



       22               The basic case of so-called reverse discrimination



       23      on differences and GPAs, between white and minority



       24      students is to argue, in essence, that racism and its



       25      effects should be accepted, indeed and shrined as positive











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      norms.  We reject that course and we're confident that you



        2      will.



        3               We have a team of standardized testing experts



        4      with a lifetime of experience among them.  David White, of



        5      the Research Advocacy and Training Non-profit, called



        6      Testing for the Public, Jay Rosner, of the Princeton Review



        7      Foundation, and Marty Shapiro of Emory's Psychology



        8      Department.



        9               Their testimony will prove that the LSAT and other



       10      standardized tests present an even more acute case of bias



       11      and unfairness than do other academic criteria such as



       12      grades.  The bias on such measures is more a matter of race



       13      than of class, though it's clearly a matter of both, and



       14      includes, but is in no way limited to obviously unfair



       15      distracting and/or insulting questions.



       16               It involves, fundamentally, the statistical



       17      norming procedures that underlie every LSAT administration,



       18      the question-selection process, the process of developing,



       19      pre-testing and then selecting questions for inclusion in



       20      scored sections of the test.



       21               Those methods, those statistical norming



       22      procedures perpetuate, and indeed tend to increase the test



       23      score gap in a relatively consistent way over years and



       24      decades.  That's in sharp contrast to the grade gap, which



       25      has diminished over time as the level of integration and











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      inequality on our nation's undergrad campuses, while we're



        2      still far from perfect and far from where we need to be has



        3      increased.



        4               That gap in grades has decreased over time.  The



        5      test score gap remains constant and that, again, is an



        6      artifact of test norming procedures.  And we have experts



        7      who are going to lay that out for you, Judge.  The



        8      university's expert, Claude Steele, will testify that the



        9      test score gap is also a product of how racial stereotypes



       10      infect the psychological environment of the test taker.



       11               We're also going to have some testimony on how



       12      narrow the range of skills measured by tests such as the



       13      LSAT is.  Unsurprisingly, therefore, it correlates only



       14      very weakly with performance in law school and not at all,



       15      not in any way with success as a lawyer.



       16               The Intervener's expert, Rick Lempert, who's also



       17      a fact witness for the university Mr. Payton spoke about



       18      earlier.  He was on the Admissions Committee in 1992.  He



       19      came up with a policy that's being challenged here.  He's



       20      conducted a study on U of M law grads.  And he compared



       21      minority grads to their white counterparts across several



       22      measures of success in practice.  There are absolutely no



       23      differences between the two groups, except for difference



       24      in community service where the minority grads outperformed



       25      their white counterparts, differences in mentorship of











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        1      young attorneys of all races where the same was true, and



        2      differences in provision of services to minority clients



        3      where the same was true.



        4               Most of the Black and Latino alumni that he



        5      studied almost certainly would have been rejected under the



        6      admissions system that's proposed implicitly and



        7      unavoidably by the Plaintiff's lawsuit.



        8               They would have been rejected, despite the



        9      contributions they've made to the Bar of this state and to



       10      the Bar of the nation.  And despite the fact that those



       11      entry credentials that would have formed the basis of their



       12      objection had no correlation at all with their success as



       13      attorneys in practice.



       14               Marcus Feldman, who's a professor at Stanford,



       15      McArthur Fellow and a Co-director for the Computational



       16      Genetics in Biological Modeling Center is a witness who's



       17      also on our may-call list who'll be called, if time



       18      permits.  And he'll show that differences on IQ and other



       19      standardized tests, including the LSAT and SAT and other



       20      high-stakes educational tests are the product of social



       21      inequality.  They're not the product of nature and that



       22      race itself is a social concept, not a biological one.



       23               All of these differences in performance are



       24      changeable.  They require that we change things about the



       25      test.  They require that we change things about the











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        1      society.  But they're all changeable.



        2               And, in fact, as you can see from the fact that



        3      the gap in grades has diminished over time, we stand on



        4      substantial progress.  We have a long way to go, but we've



        5      come a long way, too.  At least two students will take the



        6      stand to provide, to provide you, Judge Friedman, with a



        7      kind of a first-person perspective on the case that the



        8      experts will prove.



        9               Agnes Aleobua, who's a Black undergrad at U of M



       10      from a middle-class Detroit family, and Connie Escobar,



       11      who's a working class Latino and Native American law



       12      student, originally from Chicago, will explain how their



       13      own educational experiences have been shaped by continuing



       14      racist, inequality and disadvantage, both as related to,



       15      and as distinct from questions of social class.



       16               These young women will also provide the Court with



       17      a first-hand sense of what the opportunity to attend the



       18      University of Michigan has meant to them in terms of their



       19      sense of their own potential, Judge, but also their sense



       20      as a potential of this society.



       21               In contrast, neither the Plaintiff nor any other



       22      member of the class she purports to represent, will take



       23      the stand to address the issues or the equities that are at



       24      stake in this trial.



       25               These matters I've been talking about have to be











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        1      addressed even before you reach the university's proofs.



        2      Those are proofs that show beyond any doubt whatsoever that



        3      the university is acting in good faith, that it has no



        4      intent to discriminate against white applicants, and that



        5      it's well within the boundaries of Bakke.



        6               But you don't even need to get there, Judge.  The



        7      reason why is that the Plaintiff's proofs, Kinley Larntz'



        8      proofs, don't establish that there is any effect of racial



        9      discrimination in the U of M's affirmative action policy at



       10      the law school.  They haven't shown that there's any effect



       11      of racial discrimination.  And there is no need, therefore,



       12      for you to reach the question of intent.



       13               Again, if you choose to do so, you'll find that



       14      the university is operating in good faith, that there's no



       15      racial animus toward white people, that the admissions



       16      program is, the affirmative action component of the



       17      admissions program is a step toward a fairer and juster



       18      system.  We're completely confident about that.  But



       19      there's no need to get to that point.



       20               The goals of diversity in moving toward



       21      educational integration are more than sufficiently



       22      compelling for the university to be doing what it's doing.



       23      But the fact is the Plaintiff has established nothing



       24      through her statistical evidence.  The affirmative action



       25      plan that's under challenge mitigates bias and











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        1      discrimination against minority applicants.  It mitigates



        2      the unearned advantages and privileges possessed by white



        3      applicants, just merely on the basis of their race.



        4               It's not in the end a preference for minorities or



        5      even, even a racial classification.  It's rather a



        6      corrective to a system of preferences, to a system of



        7      unearned privileges for white people.



        8               The Intervener's experts will present evidence



        9      that's well established in several fields, but which has



       10      never been brought to bear in a case like this one.  We're



       11      confident that it's on the basis of that evidence that



       12      you'll uphold affirmative action and equality.



       13               There have been very unfortunate times in our



       14      legal history when courts have stood against integration



       15      and for segregation, and in those moments they've



       16      discredited the law.  That's because integration is what



       17      people want.  It's what the majority of people want.  It's



       18      what people have fought for and died for within our



       19      lifetimes, several times within the lifetimes of people in



       20      this room, Judge.  And in the end it's because integration



       21      is what is right for our society.



       22               THE COURT:  Thank you.  Plaintiff, first witness.



       23               MR. KOLBO:  If I could address the Court brief



       24      with a matter?



       25               THE COURT:  Sure, absolutely.











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        1               MR. KOLBO:  We conferred during the break if it's



        2      all right with Your Honor we expect if that Stillwagon will



        3      be finished sometime before lunch, and we thought we would



        4      not call Miss Munzel until after lunch.



        5               THE COURT:  That's great.  Absolutely.  We'll



        6      always arrange it so that we can, we don't have to just



        7      break and go back and forth.  Sure.



        8               MR. KOLBO:  Thanks, Your Honor.



        9               MS. MASSIE:  Thanks Judge.



       10               MR. KOLBO:  In that case, Your Honor, the



       11      Plaintiff will call Mr. Allan Stillwagon to the stand as



       12      its first witness.



       13               THE COURT:  Mr. Stillwagon, will you step forward



       14      please.



       15                  A L L A N   S T I L L W A G O N



       16             was called as a witness and after having been



       17             sworn was examined and testified as follows:



       18                         DIRECT EXAMINATION



       19           BY MR. KOLBO:



       20      Q.   Good morning, Mr. Stillwagon.



       21      A.   Good morning.  Is this on?



       22               THE COURT:  Tap it.  Let's see.  No.  Thank you.



       23      A.   How's that?



       24      Q.   Could you state your full name please, sir?



       25      A.   Allan Thomas Stillwagon.











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        1      Q.   Mr. Stillwagon, I'll introduce myself, we've met once



        2      before, I think a couple of years ago in the course of your



        3      deposition, is that correct?



        4      A.   Yes.



        5      Q.   We haven't met since then?



        6      A.   No.



        7      Q.   My name is Kirk Kolbo and I represent the plaintiff,



        8      Miss Barbara Grutter, in connection with this lawsuit.



        9      You're here today because you've been subpoenaed, is that



       10      correct?



       11      A.   Yes.



       12      Q.   Could you tell us where do you reside?



       13      A.   In Ann Arbor.



       14      Q.   Ann Arbor, Michigan?



       15      A.   Yes.



       16      Q.   Were you, are you currently employed?



       17      A.   No, I'm retired.



       18      Q.   And how long have you been retired?



       19      A.   Since March of 1999.



       20      Q.   At some point were you the Assistant Dean and



       21      Admissions Director at the University of Michigan Law



       22      School?



       23      A.   Admissions Office, yes, from 1979 to August, 1990.



       24      Q.   Okay.  Was the fall of 1990 the last academic year for



       25      which you made admissions decisions at Michigan?











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        1      A.   Yes.  Probably 95 percent that year.



        2      Q.   And did you hold, essentially, the same position in



        3      the Admissions Office from 1979 until fall of 1990?



        4      A.   Yes.



        5      Q.   Can you --



        6               THE COURT:  Excuse me one second.  Anyone that



        7      wants, any of the lawyers that want to move around, because



        8      I see there's -- you're certainly welcome to move anyplace



        9      in the courtroom, so you can see.



       10               MS. MASSIE:  Thank you, Judge.



       11               THE COURT:  Go on.  I'm sorry.



       12               MR. KOLBO:  Thank you, Your Honor.



       13      Q.   Could you just describe briefly, generally, what your



       14      authority was over admissions decisions during your tenure



       15      in the Admissions Office from 1979 up until fall of 1990?



       16      A.   Well, I inherited a set of practices and principles



       17      from the earlier administrations.  The policies changed



       18      very little during the time I was there.  And I had



       19      responsibility for making the decisions.



       20      Q.   Were you the principle decision maker with respect to



       21      decisions to admit or deny, or other actions that might be



       22      taken with respect to particular applicants?



       23      A.   Yes.



       24      Q.   And you made those decisions, and we'll get into it in



       25      more detail later on; but you made those decisions pursuant











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        1      to policies you understood with the law school with respect



        2      to admissions?



        3      A.   That's right.



        4      Q.   Would it be fair to say that you were the one who made



        5      most of the decisions, admissions decisions, with respect



        6      to students who applied from 1979 up until the fall of



        7      1990?



        8      A.   Essentially all of them.



        9      Q.   Okay.  Just to be clear, once you left in 1990, you



       10      don't have any knowledge about the current workings of the



       11      law school admissions policy, is that correct?



       12      A.   Not at all.



       13      Q.   Or practices.  You're not familiar -- my understanding



       14      is there will be testimony about the fact there's a policy,



       15      a written policy that went into effect in 1992.  You



       16      weren't part of that process, correct?



       17      A.   No, I was not.



       18      Q.   Was there, during your tenure, was there a faculty



       19      admissions committee or something like that?



       20      A.   Yes.  There's a faculty committee that devoted itself



       21      to policy and occasional meetings of which difficult or



       22      particular questions were put, but not very often.



       23      Q.   And so the admissions committee, faculty admissions



       24      committee, wasn't very active in the actual making of



       25      admissions decisions?











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        1      A.   No.



        2      Q.   In the case of particular candidates?



        3      A.   No.



        4      Q.   That again fell principally to you, is that right?



        5      A.   That's correct.  If there were other people involved,



        6      it would more often have been with me.



        7      Q.   In a particular case you might take a case to the



        8      dean?



        9      A.   Yes.



       10      Q.   Would that, was that Dean Sandalow first?



       11      A.   It was Dean Sandalow, and Dean Bollinger, briefly.



       12      Q.   I take it there were -- you had a staff, did you not?



       13      A.   Yes.



       14      Q.   In the admissions office?



       15      A.   Yes.



       16      Q.   Small staff?



       17      A.   Oh, three to five permanent people, and ten to fifteen



       18      during the season.



       19      Q.   And can you give me some idea what authority those



       20      individuals had to make admissions decisions from your



       21      tenure?



       22      A.   They had no authority to make admissions decisions.



       23      Q.   But they might review files with you, and then you'd



       24      make the ultimate decision?



       25      A.   Not very often.  I had an assistant who reviewed files











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        1      in the last couple of years, but even so, I read every line



        2      of every word of every application.



        3      Q.   Now, was there any single document or set of



        4      guidelines as far as, that set forth in writing the, the



        5      law school's admissions policies or guidelines during your



        6      tenure?



        7      A.   Yes.  There was an admission policy which was



        8      published in the Law School Bulletin.



        9      Q.   All right.



       10      A.   And then there were some operational guidelines that



       11      were handed down.



       12      Q.   I wonder if I could ask Dwayne to show the witness



       13      Exhibit 55.  If you could turn to tab 55, Mr. Stillwagon,



       14      and take a moment, if you would, and review the document,



       15      find that tab.



       16      A.   Yes.  That's essentially the policy.



       17      Q.   Let me just take you through a little background here



       18      first of all?



       19      A.   Sure.



       20      Q.   The first page of Exhibit 55 is identified as Law



       21      School Announcement, 1988 to 1989, correct?



       22      A.   Yes.



       23      Q.   And then, looks like we got some excerpts here on the,



       24      what is identified as page 85, as part of this, because



       25      obviously a larger document, there is a page that talks











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        1      about J.D. program admission and finances, and below that



        2      admissions, is that correct?



        3      A.   Yes.



        4      Q.   If you want to take a look -- have you seen this



        5      document before?



        6      A.   Oh, yes, I edited it many times.



        7      Q.   And is this the bulletin that you just described a few



        8      moments ago?  It's set forth admission with some policies



        9      with respect to admissions practices of the law school



       10      during your tenure?



       11      A.   Yes.



       12      Q.   Now, I want to focus on, basically, the third,



       13      starting with the third paragraph and probably continuing



       14      on down to the fourth paragraph of this page, third



       15      paragraph beginning "one half of the entering class".  And



       16      I'm just going to ask you, as you read that, I'm going to



       17      ask you some general questions.  I'm not going to



       18      necessarily take you through this line by line.



       19               But the bulletin, as I understand it, describes



       20      how a part of the class is selected, "primarily on the



       21      basis of particular academics of tests, calculated on the



       22      basis of LSAT tests, undergraduate records, and studies of



       23      past performance of students of the law".  Am I correct



       24      that describes one part of the class being selected in that



       25      fashion?











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        1      A.   Oh, yes, but I would emphasize that the last sentence



        2      of that paragraph was very much in force as well.



        3      Q.   The last sentence being?



        4      A.   "That is to say that given a set of numbers or an



        5      index -- nevertheless, my charge during those years was to



        6      admit half of the class because of their academic strength



        7      at large.



        8      Q.   Right.  Including emphasis on LSAT scores, grades,



        9      undergraduate strength, things of that nature?



       10      A.   Yes, but these were also years in which we were -- the



       11      tide was turning and fewer than half of the new law



       12      students came to us from undergraduate schools.  So



       13      graduate and professional schools and other academic



       14      achievements were becoming more important.



       15      Q.   And that's, that describes one part of the, one part



       16      of the process, one part of the class that was selected,



       17      correct, academic credentials?



       18      A.   Yes.  Keeping in mind that, that half and, half of all



       19      other processes was divided by Michigan residents and



       20      Michigan non-residents, and they have very different



       21      qualifications.



       22      Q.   Sure, and I'll probably get into that?



       23      A.   Yes.



       24      Q.   I'm just trying to sort of make sure -- is the



       25      document, basically, an accurate description, at least, as











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        1      far as it goes?



        2      A.   Yes?



        3      Q.   Of how things worked when you were there?



        4      A.   Yes.



        5      Q.   It also describes the document, as the paragraph



        6      continues, that another part of the class is selected from



        7      a "pool of students"?



        8      A.   That's right.



        9      Q.   Who's "grades and test scores qualify them for further



       10      consideration and whose selection would make the law school



       11      a more livelier place"?



       12      A.   Yes.



       13      Q.   Was there sort of this division between, in some



       14      respects, part of the class being selected on the basis of



       15      academic success, as defined by yourself in the bulletin,



       16      and another half roughly being, or other part, at least,



       17      being considered on the basis of other factors?



       18      A.   That's correct.



       19      Q.   Okay.  Was there a distinction during your tenure



       20      between students who, on the one hand, were considered



       21      primarily on the basis of their academic success, and those



       22      who were selected from what's called the pool?  Was there a



       23      distinction between the kind of credentials that those



       24      candidates brought to the school?



       25      A.   Oh, yes.











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        1      Q.   What was that?  Can you generally describe what the



        2      nature of that distinction was?



        3      A.   Well, the principle distinction, because of the way



        4      the pool was constructed, would be that the pool, that is,



        5      the two pools; the resident and the non-resident, would



        6      have relatively lower LSAT scores than grades.



        7      Q.   The pool applicants would?



        8      A.   Yes.



        9      Q.   And that's both the non-resident pool applicants and



       10      the resident pool applicants?



       11      A.   Yes.



       12      Q.   They would have relatively low, lower grades and test



       13      scores than those chosen from, on the basis of primarily



       14      academic success?



       15      A.   Right.



       16      Q.   Okay.



       17      A.   And in addition, the pool would contain all of those



       18      with relatively high LSAT scores and grades who were not



       19      offered admission the first time around.



       20      Q.   Okay.  Now, the bulletin goes on and refers, I think,



       21      on, between pages 85 and 86.  It goes on to state that "in



       22      administering its admission policy" -- this is at the



       23      bottom of page 85, "the law school recognizes the racial



       24      imbalance now existing in the legal profession and the



       25      public interest in increasing the number of lawyers from











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        1      the ethnic and culture minorities significantly



        2      underrepresented in a profession.  Minorities are strongly



        3      encouraged to apply and to call upon Assistant Dean Allan



        4      Stillwagon for information and assistance".  Going on, and



        5      this is now on page 86.  "Black, Chicano, Native American



        6      and many Puerto Rican applicants are automatically



        7      considered for a special admissions program designed to



        8      encourage and increase the role for minorities".  Did I



        9      read that completely?



       10      A.   Yes.



       11      Q.   Was there such a thing during your tenure as the



       12      special admissions program for certain minority students?



       13      A.   Yes.



       14      Q.   And was the special -- we talked earlier -- a few



       15      minutes ago we talked about this pool of candidates.  Is



       16      the special admissions program, is that part of a pool, or



       17      is that something different from the pool?



       18      A.   It's different from the pool.



       19      Q.   Do I understand then that there were during your



       20      tenure, sort of three general categories, putting aside for



       21      a moment the issue of residency and non-residency.  There



       22      are those students selected primarily on the basis of



       23      indicators of academic success.  There are those students



       24      picked, or were picked, from what has been described as the



       25      pool; that is, those students with somewhat lower academic











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        1      credentials, is that correct?



        2      A.   Yes.



        3      Q.   And a third category was there were students picked,



        4      minority students from the groups that we've read here who



        5      were picked as part of what was called, and you have



        6      identified as a special admissions program, is that



        7      correct?



        8      A.   Yes.  Although there were of course minority students



        9      in every group.



       10      Q.   There were certainly minority students who were



       11      eligible for and who were selected for admission, based



       12      solely on academic success, is that true?



       13      A.   Yes.



       14      Q.   And there were such students who were, could be



       15      selected and were selected from the second category that



       16      you talked about, the pool, is that correct?



       17      A.   Yes.



       18      Q.   Where were most of them selected from for admission,



       19      the ones that were actually offered admission?



       20      A.   The most, or approximate half of the offers would have



       21      come from the first two groups.



       22      Q.   Okay.



       23      A.   But --



       24      Q.   -- Are you talking about minority applicants now?



       25      A.   Minority applicants.











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        1      Q.   Okay.



        2      A.   But that group represented those minority applicants



        3      who had applied to all of the top law schools in the



        4      country, so the majority of applicants who enrolled would



        5      come from special admissions.



        6      Q.   The majority of minority students who were both



        7      admitted and enrolled at the University of Michigan Law



        8      School, both those combinations, most of those minority



        9      students fell into these designated groups were admitted



       10      through the special admissions programs?



       11      A.   Yes.



       12      Q.   Now, I just want to make sure I understand this.  With



       13      these three categories that we've talked about, academic



       14      credentials, pool and special admissions program, can you



       15      explain to me what the impact of residency versus



       16      non-residency was in terms of how selections might be made



       17      from those three groups of students?



       18               MR. PAYTON:  Your Honor, I'm going to, I guess



       19      maybe just to preserve the record.  I understand how you



       20      ruled, but I'm finding this is going further and further



       21      out of any zone of relevance, how residents and



       22      non-residents and something in the 1980's system that



       23      doesn't exist.



       24               MR. KOLBO:  You know, I think Mr. Payton has



       25      talked a great -- talked about that race is one of a number











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        1      of factors as part of a larger process.  I'm just trying to



        2      get some background here as to how this system works.



        3               THE COURT:  I'll allow it for background, again as



        4      background.



        5               MR. KOLBO:  Can you just describe briefly, is



        6      there some relationship between the three categories we've



        7      talked about in terms of how selections are made and some



        8      relationship, if we know, as between residency and



        9      non-residency, as being a factor in the admissions process,



       10      generally speaking?



       11      A.   Very prudently, the first group of non-residents would



       12      have the strongest academic interventions, followed by the



       13      non-resident pool, followed by the resident academic



       14      admissions, followed by the resident pool, followed by the



       15      minority students who had not already been admitted in the



       16      previous.



       17      Q.   Well, the last ring being the minority students



       18      through the special admissions program?



       19      A.   Yes.



       20      Q.   Okay.  And when you were describing these one



       21      following another, one following the other, was that in



       22      descending order of academic credentials?



       23      A.   Yes.  And controlled greatly, but the fact that



       24      relevantly few Michigan applicants applied in those years



       25      compared to all others, so there weren't very many.











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        1      Q.   Compared to non-Michigan?



        2      A.   Non-residents.



        3      Q.   Are you talking now about the entire applicant pool?



        4      A.   Yes.



        5      Q.   Not just minorities?



        6      A.   No, the entire applicants.



        7      Q.   Can you generally describe how the strength of the



        8      academic credentials of the, of minority students who were



        9      applied and enrolled through the special admissions program



       10      compared to the academic credentials, generally of the



       11      first two groups of students?



       12      A.   You mean compared to the academic admissions and the



       13      pool admissions?



       14      Q.   Well, let's take, let's take the academic credential



       15      admissions first, compared, generally speaking, to the



       16      credentials of the minority students admitted through the



       17      special admissions program.  Are there some generalizations



       18      you can make with respect to any differences in the



       19      academic credentialing of those two groups?



       20      A.   Well, in the absence of documents, this is old, an old



       21      memory, but.



       22               MR. PAYTON:  Then, Your Honor, if he doesn't know,



       23      he doesn't know, Your Honor.



       24               THE COURT:  If he doesn't know, he doesn't know,



       25      but he didn't say he doesn't know.  He said he's doing it











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        1      from memory.  And I'm sure he'll let us know if he doesn't



        2      know.



        3      A.   Both the non-resident and resident academic admits and



        4      enrollees would have LSAT scores in about the top four to



        5      five percent nationally.  And the grade point averages



        6      which vary very dramatically from school to school were in



        7      the 3.6 and 3.7 and up range.  The minority students



        8      admitted through special admissions, with that, would have



        9      scores in the mid-thirties.



       10      Q.   Are you talking about the absolute LSAT score or the



       11      percentile?



       12      A.   No, the absolute LSAT score.  And the percentile I



       13      wouldn't venture to guess.  Now, I should add somewhere



       14      along the way that the spread of these numbers is very much



       15      different in the '90's than in the '70's because the LSAT



       16      score scale was very wide and because a wide-score scale



       17      was subject to abuse.  It has since been narrowed



       18      considerably.



       19      Q.   The current scale being narrower or wider?



       20      A.   Much narrower.



       21      Q.   Well, I guess, can you, do you have a recollection as



       22      to whether there were, whether there was any significant



       23      differences in terms of the, the, the competitiveness,



       24      academically, on the basis of academics, LSAT scores,



       25      undergraduate grades between the pool, or between the











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        1      students admitted to academic credentials primarily and the



        2      special admissions program?



        3      A.   Yes, there is.



        4      Q.   Can you describe those generally?



        5      A.   A considerable.



        6      Q.   A considerable difference?



        7      A.   Between the special admissions, admits and the others.



        8      Q.   With those admitted through academic credentials being



        9      substantially higher?



       10      A.   Yes.



       11      Q.   Then those admitted through the special admissions



       12      program?



       13      A.   Yes.



       14      Q.   How long was the -- during your tenure, you were there



       15      from 1979 to the fall of 1990 -- was the special admissions



       16      program in existence during your entire tenure?



       17      A.   Yes.



       18      Q.   When you came on board, you just continued to follow



       19      what you understood to be something already in effect?



       20      A.   Yes.  And the special admissions program was



       21      re-affirmed by the faculty, perhaps informally, but at



       22      least a vote was taken immediately before I came, so there



       23      was no, no doubt as I took over that that's what they



       24      wanted.



       25      Q.   Now, were there any, in terms of the students that











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        1      were to be admitted through the special admissions program,



        2      did you have, did you have an understanding that there were



        3      any guidelines as to what percentages or what proportions



        4      of the class ought to be your goal to enroll as far as



        5      underrepresented minorities in the admissions office?



        6      A.   Ten to twelve percent was the target of those minority



        7      groups which had been particularly specified by the



        8      faculty.



        9      Q.   And the bulletin that we looked at specified a number



       10      of racial minorities, is that correct?



       11      A.   Yes, the faculty named in the terms of the policy;



       12      Blacks, Chicanos -- they did not define Chicanos for me,



       13      Native Americans and so-called mainland Puerto Ricans,



       14      Asian, Hispanic, it could be Cuban, and other minorities



       15      were not included in special admissions.  And I did not



       16      have authority to admit them in special admissions.



       17      Q.   Puerto Ricans, not from the U.S. mainland were not



       18      part of the special admissions program?



       19      A.   No.  The idea was that there were good law schools in



       20      Puerto Rico and that the mainland U.S. law schools were not



       21      about to raid Puerto Rico for students.



       22      Q.   How were -- was there some definition that you



       23      understood that you were to apply with respect to define



       24      who was a Chicano applicant?



       25      A.   That was a vex question never settled.  The faculty











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        1      thought it could say Mexican American and be done with it,



        2      but Chicano students took exception.  And so there was a



        3      ten-year discussion who was who.



        4      Q.   Now, you mentioned the number ten to twelve percent



        5      as, as the goal or target?



        6      A.   Yes.



        7      Q.   For enrollment of underrepresented minorities from



        8      these groups?



        9      A.   Yes.



       10      Q.   This is exclusion then of, say Asian Americans?



       11      A.   Yes.



       12      Q.   And other racial groups that we haven't identified



       13      here as those belonging to the special admissions program?



       14      A.   That's right.



       15      Q.   Did you understand -- was that a sort of a fixed and a



       16      rigid number, ten to twelve percent, or was it more



       17      flexible than that?



       18      A.   Well, it was flexible in the sense that if the



       19      enrollment was three or four people one way or another,



       20      there was no serious criticism, but it was a number which



       21      had been negotiated or voted on and approved by the



       22      faculty.



       23      Q.   Okay.  But it might be a little bit, might it, some



       24      years, and we can look at the admissions data I think.  I



       25      don't think we need to take your time with that but we can,











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        1      if we looked at the admissions data in the enrollment



        2      figures for the years that you were there, you're not



        3      always going to find the same, exact same percentage or



        4      number?



        5      A.   No.



        6      Q.   Of minority students enrolled in the special



        7      admissions program, are we?



        8      A.   No.  It would vary, depending on day one.



        9      Q.   And if you could enroll more than twelve percent,



       10      would you do that?



       11      A.   Oh, yes, if I could enroll more than twelve percent



       12      through the first two programs especially.



       13      Q.   Okay.



       14      A.   That was what the faculty hoped would ultimately



       15      prevail.



       16      Q.   What, did you have an understanding as to why it was



       17      that the goal was set at ten to twelve percent for



       18      underrepresented minority students?



       19      A.   It was raised from ten percent in the 1970's because



       20      ten percent seemed inadequate for the faculty at that time.



       21      It -- there was not -- during the time I was there any



       22      serious decision taken to change the number because the



       23      faculty's watching too carefully the academic performance



       24      of the students who were admitted.



       25      Q.   Was there a concern that if the number were increased











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        1      too much that you might have, there would be academic



        2      difficulties?



        3               MR. WASHINGTON:  Your Honor, just, we'd object on



        4      the foundation of this question.  It seems to me he's



        5      testifying from, at least double or triple hearsay.



        6               THE COURT:  Overruled.  He was the person that



        7      made that decision, and it's not necessarily for the truth



        8      I suspect, it's just as to what his marching orders were.



        9               MR. KOLBO:  Do you have the question before you?



       10      A.   No.



       11      Q.   Well, let me see if I can remember it.  Was there a



       12      concern expressed -- you would obviously have



       13      communications with faculty members about, on occasion, how



       14      the admissions process worked, what kind of students we're



       15      getting admitted?



       16      A.   Yeah, constantly.  No, only the dean and admissions



       17      committee counted, yes.



       18      Q.   And were there discussions about how one might, how



       19      the law school might, how your office might increase the



       20      enrollment of students from underrepresented minority



       21      groups over and above the ten to twelve percent goal?



       22      A.   Yes.



       23      Q.   And was there a conclusion that that would be



       24      difficult to do for various reasons?



       25      A.   The basic reason was that the national pool was not











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        1      changing dramatically.  There were certain faculty who



        2      thought that if I did my job better, we would be more



        3      successful.  There was also a policy, or there were new



        4      financial aid offers being developed at the time I was



        5      leaving, which were intended to improve Michigan's



        6      performance over competitors.



        7      Q.   Do you have an understanding, putting aside the issue



        8      of how many students were going to be enrolled through the



        9      special admissions program; did you have an understanding



       10      as the Admissions Officer as to why it was that the law



       11      school wanted to have representation at some level of



       12      certain numbers, whatever it might be of underrepresented



       13      minority students?



       14      A.   Yes.



       15      Q.   What was your understanding?



       16      A.   First and foremost the faculty found it inexcusable



       17      and unconscionable that they found themselves in the early



       18      '70's with no Black students.  They felt, under



       19      legislation, spoke to their commitment to minority



       20      representation in the Bar, and minority lawyers being



       21      available to minority communities, particularly when



       22      encouraged to go back to minority communities and practice.



       23               As the decade moved from '79 to '80, the



       24      contributions of minority students to the classroom



       25      experience changed from one that was rarely mentioned to











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        1      one that was a constant topic of conversation.



        2      Q.   Did you consider yourself under a mandate to operate



        3      the special admissions program?



        4      A.   Yes.



        5      Q.   It wasn't within your discretion to discontinue the



        6      special admissions program?



        7      A.   No.



        8      Q.   Could you take a look, I think it's in the same book,



        9      at Exhibit 53 and turn to page 53, 53, I guess it is?



       10      A.   My book starts with 54.



       11      Q.   Oh, I'm sorry.  If you could simply turn to page 53?



       12      A.   Got 53.  I'm sorry.  Yes.



       13      Q.   Coincidentally, page 53, and Exhibit 53 at the very



       14      bottom there.



       15               MR. PAYTON:  Hold on.  Your Honor, I'm going to



       16      object to any use of this exhibit at all, at all.  Can I



       17      just make my objection?



       18               THE COURT:  Yes.  I thought you stipulated to



       19      these exhibits.  I'm sorry.



       20               MR. PAYTON:  No, no.  We did not stipulate to the



       21      admissibility of any of the exhibits.  We have stipulated



       22      to their authenticity.



       23               THE COURT:  Okay.



       24               MR. PAYTON:  And we reserved any other objection.



       25               THE COURT:  That's fine.











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        1               MR. PAYTON:  This memorandum which was written



        2      after Mr. Stillwagon, and was based only upon some



        3      collection of documents then in the office, is simply



        4      irrelevant to anything here, and it doesn't purport to be



        5      complete.  It's based only on the hearsay in the documents.



        6      It's not been verified by anybody.  I don't understand why



        7      this is being used at all.  If he has a question to ask



        8      this witness, ask it, but don't ask the witness to try to



        9      resurrect a document that's simply irrelevant.



       10               MR. KOLBO:  Your Honor, I think I can explain.



       11      It's a lengthy document.  I'm simply asking the witness to



       12      refer to a faculty resolution that's quoted verbatim in



       13      this otherwise narrative document, and ask him whether this



       14      is the, is the faculty, one of the faculty resolutions



       15      under which he was operating as the admissions director.



       16               THE COURT:  Does he have a follow-up question to



       17      that?  Is that why?



       18               MR. KOLBO:  I want, basically, to confirm that



       19      this is, this is one of the resolutions that he was



       20      operating under with respect to the operation of special



       21      admissions program.



       22               THE COURT:  I'm not going to -- the document has



       23      not been introduced, so it can't be used for purposes of



       24      anything, and it wasn't in existence at the time he was



       25      there.  But all you want to do is to lay a foundation for











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        1      later?



        2               MR. KOLBO:  I think that's correct, Your Honor.



        3               THE COURT:  Then I will allow you to do that



        4      rather than recalling him at a later time.  But I'm not



        5      ruling that it's admissible at this time.  All I'm saying



        6      is that he can lay a foundation for later, should the need



        7      arise.



        8               MR. KOLBO:  Thank you, Your Honor.



        9      Q.   Mr. Stillwagon, at the very bottom of page 53, the



       10      very last two lines there's a date, September 7, 1978.  And



       11      then it starts and continues on to page 54.  And my



       12      question to you, as you read it, is whether this is one of



       13      the faculty resolutions that guided you with respect to how



       14      to operate the special admissions program during your



       15      tenure.



       16               THE COURT:  You may take a minute to read it.



       17      A.   Well, it's certainly familiar.  Whether it's all of



       18      the documentation I was using, I can't say.



       19      Q.   But in any event, you were operating under, what you



       20      understood to be faculty mandate with respect to the



       21      special admissions program?



       22      A.   Oh, yes.



       23      Q.   Would you have, in your judgment -- as the Admissions



       24      Director, would you have been able to admit and enroll an



       25      underrepresented minority student population of ten to











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        1      twelve percent without the use of a special admissions



        2      program during your tenure?



        3      A.   Not without a change in the accompanying policies.



        4      Q.   And that's a good point.  Everything else staying



        5      essentially the same, admissions standards otherwise



        6      staying the same, had the special admissions program been



        7      abandoned, you would not have been able to admit and enroll



        8      the ten to twelve percent minority students?



        9      A.   No.



       10      Q.   We've seen that the reference to the special



       11      admissions program was made in the law school announcement



       12      looked at early on.



       13      A.   Yes.



       14      Q.   Did you have a sense as to whether it was well known



       15      among the faculty as to whether or not there was such a



       16      thing as a special admissions program for minority



       17      students?



       18      A.   Oh, I'm sure they all knew.



       19      Q.   I'm sorry?



       20      A.   They all knew.



       21      Q.   Would you explain to minority applicants when they



       22      applied, or when they were thinking about applying and



       23      contacting your office, would you explain to them what the



       24      special admissions program was?



       25      A.   It would depend on the situation.  We used law school











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        1      admissions counsel data files to send to all arguably



        2      qualified minority students in the United States, a letter



        3      from me, a bulletin, an application, a letter from the



        4      relevant student organization followed by phone calls from



        5      students and from faculty.  They surely knew from the



        6      effort we extended and the bulletin that there was a



        7      special admissions program.



        8               On the other hand, one did not go out of the way



        9      to say, we want you to know that we're treating you



       10      differently.  Some students looking at the national data



       11      would welcome it very much, and we had lots of letters



       12      asking if we had a special admissions program.  Other



       13      students took offense and did not wish it to be mentioned.



       14      Q.   Other minority students?



       15      A.   Other minority students.



       16      Q.   Took --



       17      A.   Took the cue --



       18      Q.   Took offense at being considered as part of a special



       19      admissions program?



       20      A.   Yes.



       21      Q.   Did they explain why they took offense at that?



       22               MR. PAYTON:  Your Honor, why is this --



       23               MR. KOLBO:  I'll withdraw the question, Your



       24      Honor.



       25               THE COURT:  Very well.











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        1      Q.   If I could just show you then, have you take a look at



        2      Exhibit 113 and ask you to show the witness the exhibit.



        3      Mr. Stillwagon, during your tenure was there such an entity



        4      or such a meeting called together from time to time called



        5      the Law School Committee of Visiters?



        6      A.   Yes, every year.



        7      Q.   And what was -- can you just describe what it was?



        8      A.   It was a group of distinguished alumni and a few, I



        9      think increasing number of non-alumni, who came to the



       10      school each year to take a look at the operations, to



       11      attend classes, to receive reports from the dean and the



       12      associate dean about what was going on in the law school.



       13      And every year our admissions report was prepared first for



       14      the committee visitors.



       15      Q.   Did you play some role then in the Committee of



       16      Visitors meetings each year?



       17      A.   I attended, sometimes I presented the admissions



       18      report, but usually the dean was there and I prepared the



       19      written report as it related to admissions.



       20      Q.   And if you could just thumb through yourself Exhibit



       21      113 and tell me if you recognize that as an excerpt



       22      concerning admissions statistics for the year 1990.



       23      A.   Yes, although --



       24               THE COURT:  Could you pull the microphone just a



       25      little bit closer?  There you go.  Thanks.











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        1      A.   Remember this is a year in which I did not produce



        2      these numbers.



        3      Q.   Okay.  Well, maybe you can perhaps turn to the



        4      preceding exhibit, Exhibit 112, which is another Law School



        5      Committee of Visitor's Report of 1989.  This would be



        6      during your tenure, is that right?



        7      A.   Yes.



        8      Q.   And do you recognize this as a document that you would



        9      have prepared that compiled various admissions statistics?



       10      A.   Yes.



       11      Q.   For the -- would this be for the class enrolled in



       12      1989?



       13      A.   Yes.



       14               MR. KOLBO:  We would offer Exhibit 112, Your



       15      Honor.



       16               THE COURT:  Any objection?



       17               MR. PAYTON:  Yes, I think it's simply irrelevant.



       18      I'm going to object to all of this, but I think this is



       19      completely irrelevant.  It's about a time twelve years ago.



       20               THE COURT:  What's the relevance?



       21               MR. PAYTON:  It doesn't have anything to do with



       22      this case.



       23               THE COURT:  What's the relevance?



       24               MR. KOLBO:  Well, Your Honor, I believe if we



       25      would demonstrate that if this pattern continues in later











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        1      years after 1992, it's historical evidence of the same



        2      practices and policies at the law school.



        3               MR. PAYTON:  We have the current policy.  It's not



        4      in dispute.  They don't dispute that it's the one that



        5      governs all decisions today.  Now, if they want to draw



        6      gross comparisons between this and any historical period, I



        7      just think it's not relevant at all, not at all.



        8               MR. KOLBO:  Well, Your Honor, if what happened in



        9      1990 can be shown to describe -- well, what's happening in



       10      1992 and afterwards, it seems to me that's at least



       11      probative and the Court can decide what weight to give it,



       12      but it's probative.



       13               MR. WASHINGTON:  Your Honor, first of all we join



       14      Mr. Payton's objection as to relevance, but just joining



       15      Mr. Kolbo's last point, I think the critical question is,



       16      have they linked it up.  And at this point they haven't



       17      linked it up at all.



       18               THE COURT:  I'll admit it, however without, with



       19      taking the objections seriously as to both relevancy as



       20      well as, there's got to be some link, so I'll accept it,



       21      how much weight, if any weight will be given.



       22      Q.   All I want to know, take your time on this, Mr.



       23      Stillwagon, is if you could turn -- I'm not sure that the



       24      pages are numbered inside here.  There's a section, I think



       25      it's page one, two, three, four, the fifth page into











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        1      Exhibit 112 there's -- the page is headed the "Admissions



        2      Years of Means and Medians".  Do you see that here?



        3      A.   Yes.



        4               THE COURT:  There's a number on top.



        5               MR. KOLBO:  Of the page, Your Honor.



        6               THE COURT:  On top of each page.



        7               MR. KOLBO:  On 23, yes, page 23.



        8      A.   I don't have the page number, but I have the



        9      admissions year and the means.



       10      Q.   Okay.  Is this sort of a compilation of, as I take it,



       11      admissions data with respect to means, GPA's, immediate



       12      GPAs, for the class that enrolled in 1989 and then compared



       13      to the class enrolled in 1988?



       14      A.   Yes.



       15      Q.   There's three categories identified at the top, one,



       16      two and three.  Do you see that?



       17      A.   Yes.



       18      Q.   Can you just tell me what those three columns stand



       19      for?



       20      A.   One, two and three are the special pieces of the



       21      admissions process we discussed earlier, the academic, the



       22      so-called pool and special admissions.



       23      Q.   Is the data that's reflected here -- I'm not asking



       24      you to crunch all the numbers here, but does this generally



       25      confirm your testimony earlier that the academic











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        1      credentials of students admitted through this special



        2      admissions category, at least is measured by, say mean, GPA



        3      or, mean LSAT, or substantially lower than for the other



        4      two applicants categories?



        5      A.   Those admitted through special admissions, yes.



        6      Q.   Yes.  Did you, during the course of your -- I'm



        7      finished with that particular document, Mr. Stillwagon.



        8      During the course of your tenure as the Admission Officer,



        9      did you ever have any conversations to ask Dean Bollinger



       10      about the special admissions program?



       11      A.   Dean Bollinger and I spoke very rarely.  We had one



       12      conversation about the prospects for minority admissions in



       13      the near future, at which I expressed the view that if the



       14      faculty should decide to increase the number of Black,



       15      Chicano, Native Americans and Puerto Rican students, we



       16      could do that without lowering the academic numbers to the



       17      point where the students were at great risk, but I did not



       18      think we could increase the number substantially just



       19      because we were Michigan, and just because we were trying



       20      harder.



       21      Q.   Did you ever receive any instructions from people that



       22      wanted to change anything with respect to the way the



       23      special admissions program was operated?



       24      A.   No.



       25      Q.   Did you ever receive any criticism by Dean Bollinger











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        1      about the manner in which your office operated the special



        2      admissions program?



        3      A.   No.  Although it was clear that he had greater faith



        4      than I did that, that putting more money in the operation



        5      producing dramatic result.



        6      Q.   As of the time that you left --



        7               THE COURT:  Put more money into the operation,



        8      what do you mean?



        9      A.   By providing full-ride scholarships for minority



       10      students.



       11               THE COURT:  For minorities?



       12      A.   For minorities, which many law schools do, and which



       13      we were experimenting.



       14               THE COURT:  I see.



       15      Q.   As of the time that you left the admissions office in



       16      the fall of 1990, was there under any consideration any



       17      plan to abolish or cut back the special admissions program



       18      for minority students?



       19      A.   No.



       20               MR. KOLBO:  I have no further questions, Your



       21      Honor.



       22               THE COURT:  Very well.  Are you going to be using



       23      the overhead?  If not, we'll turn the lights on.



       24               MR. PAYTON:  Turn the lights on.



       25               MR. KOLBO:  Your Honor, might I -- I did neglect











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        1      to offer Exhibit 53.  If I might do that at this time.



        2               THE COURT:  Any objections?



        3               MR. KOLBO:  The law school book.



        4               MR. PAYTON:  From 1989.



        5               MR. KOLBO:  Yes.



        6               MR. PAYTON:  Yes.  I object on the grounds that



        7      it's just simply irrelevant.  It's describing a system



        8      that's simply not relevant to this case.



        9               MR. WASHINGTON:  And we join in that objection,



       10      Your Honor.



       11               THE COURT:  Again, I'll accept it, however without



       12      commenting or indicating in any manner that I will give it



       13      any weight at all.



       14                       CROSS EXAMINATION



       15           BY MR. PAYTON:



       16      Q.   Mr. Stillwagon, you testified about the special



       17      admissions program that you operated.



       18      A.   Yes.



       19      Q.   I believe you said it was a faculty policy?



       20      A.   Yes.



       21      Q.   Was it your understanding that policy in this area was



       22      made by the faculty of the law school?



       23      A.   Yes.



       24      Q.   As of August, 1990, that's the time you were leaving,



       25      you thought that Dean Bollinger was considering coming up











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        1      with a new written policy in admissions, didn't you?



        2      A.   On?



        3      Q.   On admissions?



        4      A.   Not until fifteen minutes before I departed.



        5      Q.   Well, let me just say -- you can give me the answer



        6      whenever you learned it, but here's the question.  Listen



        7      to it.  As of August, 1990, that's the date you ceased



        8      having any responsibilities for admissions?



        9      A.   Yes.



       10      Q.   As of that date, you thought that Dean Bollinger was



       11      considering coming up with a new written policy on



       12      admissions, didn't you?



       13      A.   No.



       14      Q.   Do you remember being deposed in this case?



       15      A.   Yes.



       16      Q.   May I have his deposition?  Will you go to page 48, 49



       17      of your deposition.  You do recall being deposed in this



       18      case?  Mr. Kolbo and I asked you questions under oath and



       19      you gave answers.



       20      A.   Right.



       21      Q.   Are you on page 48?



       22      A.   Yes.



       23      Q.   Do you see a question at the bottom of the page?  I'm



       24      going to read the question and the answer.  Question:  "Was



       25      there any consideration as of the time you were leaving --











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      was there talk about changing or coming up with a new



        2      written policy on admissions"?



        3      A.   Excuse me.  I don't see where you are.  I'm on page --



        4      Q.   -- 48.



        5      A.   Forty, oh, I see.  I see it.



        6      Q.   Do you see it?  I'm going to read it again.  Question:



        7      "Was there any consideration as of the time you were



        8      leaving?  Was there talk about changing or coming up with a



        9      new written policy on admissions?  Answer:  "On admissions



       10      overall"?  Question:  "Admissions overall".  Answer:



       11      "Well, I think that was what Lee must have had in mind.  We



       12      never discussed it".  Do you see that?



       13      A.   Yes.



       14      Q.   Were you asked that question and did you give that



       15      answer?



       16      A.   Yes.  It doesn't seem to me inconsistent.



       17      Q.   Well, you seemed to know something, though, didn't



       18      you?



       19      A.   Well, I did at the time I left.



       20      Q.   Okay.  At the time you left you knew?



       21      A.   That day.



       22      Q.   Something about there was going to be a new written



       23      policy on admissions?



       24      A.   That day.



       25      Q.   That day.











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      A.   Yes.



        2      Q.   As you left, you knew Dean Bollinger was considering a



        3      new written policy on admissions, is that right?



        4      A.   Written, no.  I can't say that.



        5      Q.   That's what this question said?



        6      A.   Then I must have answered incorrectly.



        7      Q.   Okay.  So your answer at your deposition was



        8      incorrect?



        9      A.   To the extent that I knew that he was planning any new



       10      written policy.



       11      Q.   Okay.  And when you were leaving -- this is August,



       12      1990 again?



       13      A.   Yes.



       14      Q.   You thought that your leaving the Office of Admissions



       15      was based on disagreements in policy regarding the office,



       16      isn't that correct?



       17      A.   Yes.



       18      Q.   Disagreements with the dean?



       19      A.   Yes.



       20      Q.   Disagreements with the faculty?



       21      A.   No, not that I knew of.  That may have been true.



       22      Q.   Now, there were also at this time and earlier



       23      complaints from applicants to the law school regarding



       24      offensive statements made by persons in the admissions



       25      office towards them.  Isn't that correct?











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      A.   I have never heard that.



        2      Q.   You have never heard of any complaints about students,



        3      applicants complaining about offensive statements made to



        4      them by persons in the Admissions Office when you were the



        5      director?



        6      A.   Never.



        7      Q.   Now, up until the time of your deposition a couple



        8      years ago, you were unaware that there was a new written



        9      policy regarding admissions, weren't you?



       10      A.   Yes.  Well, local gossip.



       11      Q.   You knew something from local gossip?



       12      A.   Something was up, sure.



       13      Q.   You didn't have any direct knowledge?



       14      A.   No.



       15      Q.   Of a new written policy?



       16      A.   No.



       17      Q.   And you certainly understand that it is the faculty



       18      prerogative to come up with new policies regarding



       19      admissions, as well as other things?



       20      A.   Sure.



       21      Q.   And if you were the Director of Admissions, you would



       22      implement that new policy, isn't that correct?



       23      A.   That's correct.



       24               MR. PAYTON:  That's it.



       25               THE COURT:  Mr. Washington.











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1               MR. WASHINGTON:  Thank you, Your Honor.



        2                           CROSS EXAMINATION



        3           BY MR. WASHINGTON:



        4      Q.   Mr. Stillwagon, as I understand your testimony, even



        5      in the 1980's, the category called, you called academic



        6      admits, as I understand it, you didn't simply crunch the



        7      numbers for those persons when you evaluated their academic



        8      credentials, am I correct?



        9      A.   That's correct.  That was the starting point.



       10      Q.   And you would look at a number of factors even then



       11      strictly on an academic basis, is that correct?



       12      A.   That's correct.



       13      Q.   Now, Mr. Kolbo asked you some questions about



       14      background, but he stopped back at a certain point.  When



       15      was your first connection with the University of Michigan



       16      Law School?



       17      A.   1959.



       18      Q.   You went there?



       19      A.   Yes.



       20      Q.   And how long were you there, sir?



       21      A.   Well, off and on between 1959 and I believe 1965,



       22      three times.



       23      Q.   Okay.  And when did you return to the University of



       24      Michigan Law School?



       25      A.   1979.











                                                                  119



                           1/16/01 - BENCH TRIAL - VOLUME I



        1      Q.   And would it be fair to say, sir, that during the



        2      1960's and up until the early 1970's, from what you know,



        3      there was no explicit consideration given to the race of



        4      any applicant?



        5      A.   Oh, no, I did know that because I helped many



        6      students, including minority students apply to the



        7      University of Michigan.



        8      Q.   I understand, but in terms of evaluating students,



        9      would it be fair to say that there was no affirmative



       10      action program during the 1960's?  Or do you know?



       11      A.   Oh, during the 1960's?



       12      Q.   Yes.



       13      A.   I get my dates right here.  During the 1960's, I would



       14      have no knowledge.



       15      Q.   When you were there, though, would it be fair to say



       16      that there were, essentially, no Black students at the



       17      University of Michigan Law School?



       18      A.   When I was enrolled?



       19      Q.   Yes, sir.



       20      A.   Essentially none.  Amelia Kearse was there, Harry



       21      Edwards was there.



       22      Q.   Mr. Edwards who became DC Circuit Court of Appeals



       23      Judge?



       24      A.   Yes.



       25      Q.   But other than the occasional person who became a











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      Federal Appeals Court Judge, there weren't any Black



        2      students, right, nobody?



        3      A.   Very rare.



        4      Q.   And that continued until the nineteen, early 1970's,



        5      did it not?



        6      A.   Yes.



        7      Q.   And that's what affirmative action began to change, is



        8      the character from an all-white institution, to an



        9      institution that, at least had a few Black people in it,



       10      correct?



       11      A.   Yes.



       12      Q.   And is it your understanding that that change was made



       13      possible because there was some attention paid to the race



       14      of people who applied?



       15      A.   Yes.



       16      Q.   Now, sir, I want to just skip ahead here.  You



       17      mentioned that while you were Dean of Admissions Officer,



       18      that you would receive material from the law school



       19      admissions counsel on every minority applicant who scored



       20      above a certain qualification score, am I correct?



       21      A.   And who had made its way into the LSAT database.



       22      Q.   Okay.  But not necessarily somebody who had ever



       23      thought about going to the University of Michigan?



       24      A.   There were, on the LSAC application forms, that is the



       25      forms that the students filled out before taking the test











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      or before submitting the transcripts for analysis, there



        2      were in some years, but not all years, ways to indicate



        3      that you were interested in the University of Michigan.



        4      That would be indicated on reports.



        5      Q.   Okay.



        6      A.   From the central organization.  We would have paid



        7      more attention to those than others.



        8      Q.   Okay.  But as I understand your testimony you would



        9      send out applications and invitations to apply to everybody



       10      who you got from that database, whether or not they had



       11      expressed any interest in the University of Michigan?



       12      A.   Yes, as long as they seemed arguably qualified.



       13      Q.   Okay.  And would it be fair to say that even that kind



       14      of recruitment policy did not result in a sufficient number



       15      of admits in the, what you've called the academic criteria,



       16      category to come anywhere close to that ten to twelve



       17      percent target range that you said you had?



       18      A.   That's right.



       19      Q.   Because that pool was very small, wasn't it?



       20      A.   Yes.



       21      Q.   And those persons often went to some other law school,



       22      am I correct?



       23      A.   Yes.



       24      Q.   Would it be fair to say then that during the time you



       25      were Admission Officer, that without affirmative action,











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      meaning some kind of potential consideration of the race of



        2      the applicant, that there would have been very few Black



        3      law students at the University of Michigan at that time?



        4      A.   That's right.



        5      Q.   And would it be fair to say then that, and we



        6      understand you do not know what the policy was after '92.



        7      And as I understand it, there could be different ways of



        8      considering race and different procedures and all of that,



        9      but from your experience as an Admissions Officer, unless



       10      you consider race as an explicit factor in considering



       11      people who apply, you end up with virtually an all-white



       12      school, am I correct?



       13      A.   I'm sure that is still true.  I don't have access to



       14      the national data.



       15      Q.   I understand.



       16      A.   But I can't imagine it has changed.



       17      Q.   Okay.  Last question, or last area.  You indicated



       18      that you had a discussion with Dean Bollinger about, well,



       19      could we increase the number of minority, all minority



       20      students beyond the ten to twelve percent that you had



       21      during your tenure.  Do you recall that discussion?



       22      A.   Yes.



       23      Q.   And as I understood your answer, you told the dean



       24      that there were sufficient qualified people, that if you



       25      wanted to, you could increase that number without putting











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                           1/16/01 - BENCH TRIAL - VOLUME I



        1      anybody at risk as to whether they would graduate or not,



        2      am I correct?



        3      A.   Without putting anybody at greater risk than they were



        4      already.



        5      Q.   I understand.  We all have risk, right?



        6      A.   Yes, but there is a special consideration when you



        7      turn to the admission of that part of the glass where the



        8      predictors are a little discouraging.



        9      Q.   Okay.  But as I understand it, sir, your advice to the



       10      dean at that point was that you could increase that number



       11      without increasing, putting anybody at any increasing risk



       12      than they already were?



       13      A.   Yes, I was sure I could.



       14      Q.   And you and he had a disagreement about whether you



       15      could do that, based on the Michigan name or money or how



       16      you go about it?



       17      A.   No.  We didn't have a disagreement about that.  I



       18      mean, this was a conversation which I instigated on that



       19      topic and at that time and that conversation, he just took



       20      the information.



       21               MR. WASHINGTON:  Okay.  I have no other questions,



       22      Your Honor.



       23               THE COURT:  Any questions?



       24               MR. KOLBO:  We have none, Your Honor.



       25               THE COURT:  Very well.  You may step down.  Thank











                                                                  124



                           1/16/01 - BENCH TRIAL - VOLUME I



        1      you very much.  It's now 12:05.  Do you want to reconvene



        2      at 1:05?  Is that good for everybody, enough time for lunch



        3      for everybody?  1:05.  We stand in recess.



        4               (Whereupon a recess is had.)



        5



        6



        7



        8



        9



       10



       11



       12



       13



       14



       15



       16



       17



       18



       19



       20



       21



       22



       23



       24



       25















                                                                      125



         1                         _     _     _                         



         2                             (Court back in session.)



         3                        THE COURT:  Next witness,



         4         please.



         5                        MR. KOLBO:  Your Honor, again just to



         6         keep the Court apprised of our discussion of what we



         7         had in mind today this afternoon subject to the



         8         Court's approval is, we expect that most of the



         9         afternoon would be taken up with Ms. Munzel.



        10                        And Mr. Payton and I have discussed



        11         what we would like to do is regardless of when I



        12         finish which would be sometime mid to late this



        13         afternoon.



        14                        We would just agree to start tomorrow



        15         with our last witness, which is Dr. Kinley Larntz.



        16                        THE COURT:  That's fine, no problem.



        17         I just assume not to have to inconvenience witnesses



        18         for a half hour, 45 minutes or even an hour.



        19                        MR. KOLBO:  Thank you, your Honor.



        20                        THE COURT:  Even more, it's



        21         important.



        22                        MR. KOLBO:  Our next witness, your



        23         Honor, is Erica Munzel.



        24                        THE COURT:  We're just waiting, the



        25         Intervenors are not quite back yet.











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              126

 











         1                             (Discussion off the record.)



         2                        THE COURT:  Okay, your next witness.



         3                        MR. KOLBO:  Your Honor, Plaintiff



         4         call Ms. Erica Munzel as our next witness.



         5                        THE COURT:  Okay.



         6                         ERICA MUNZEL,



         7         was thereupon called as a witness herein and, after



         8         having been first duly sworn to tell the truth, the



         9         whole truth and nothing but the truth, was examined



        10         and testified as follows:



        11                        MR. PAYTON:  Your Honor, just an



        12         interjection, my partner Craig Goldblatt will be



        13         defending in this phase.



        14                        THE COURT:  On this one?



        15                        MR. PAYTON:  Yes.



        16                        THE COURT:  Great.



        17



        18                       DIRECT EXAMINATION



        19   BY MR. KOLBO:



        20   Q.    Good afternoon, Ms. Munzel.



        21   A.    Good afternoon.



        22   Q.    Could you state your full name, please?



        23   A.    My name is Erica Munzel.



        24   Q.    And your address?



        25   A.    My address is 1559 Long Meadow Trail, Ann Arbor,











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              127

 











         1         Michigan.



         2   Q.    Ms. Munzel, we met once before a couple of years ago



         3         now?



         4   A.    Yes.



         5   Q.    My name is Kirk Kolbo and I'm one of the lawyers



         6         representing the Plaintiff in this case.



         7   A.    Yes.



         8   Q.    You are, am I correct, the current director of



         9         Admissions at the University Michigan Law School?



        10   A.    That's correct, yes.



        11   Q.    And you've held that position for how long?



        12   A.    Approximately three years.



        13   Q.    And you assumed that position, I think, was it in



        14         May of 1998 as far as the official title?



        15   A.    That's correct.



        16   Q.    Before that I think you were acting director



        17         starting about January of 1998?



        18   A.    That's right.



        19   Q.    And you replaced, as I understand it, Dennis Shields



        20         as the Admissions director?



        21   A.    That's right.



        22   Q.    And you started in the office of Admissions sometime



        23         in 1993?



        24   A.    That's right.  In August of 1993.



        25   Q.    And have been there continuously ever since?











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              128

 











         1   A.    Yes.



         2   Q.    Before I kind of start at the beginning, I wanted to



         3         ask you a couple of questions about the LSAT and how



         4         that works.



         5                        I assume you're pretty familiar with



         6         how that's scored, that is for the national



         7         percentile or have some general familiarity with



         8         what a score means?



         9   A.    Yes, with the Law School Admissions test?



        10   Q.    Yes.



        11                        THE COURT:  Let me ask a question



        12         first.  How does one become a director of



        13         Admissions, did you start as a professor, or is this



        14         a career goal?



        15   A.    That's a good question.  I actually graduated from



        16         the University of Michigan.  I got a bachelor's



        17         degree in 1978, and I worked for a couple of years



        18         before returning to Ann Arbor where I got my law



        19         degree.



        20                        So, I graduated from the



        21         University of Michigan Law School in 1983.  I then



        22         practiced law in Chicago for about ten years.  I



        23         worked at a private law firm where I did litigation,



        24         commercial litigation.



        25                        And then I worked in the Cook County











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              129

 











         1         Public Guardian's Office.  I represented children in



         2         abuse and neglect cases there.  And after about four



         3         years in that position, I wanted to return to



         4         Ann Arbor where my parents lived, because there were



         5         some health issues in our family.



         6                        And so I was interested in returning



         7         to Ann Arbor, and had always had a fondness for the



         8         University of Michigan.  And learned that there was



         9         a position available in the Admissions Office.



        10                        So, I pursued that position and was



        11         very fortunate to be the selected candidate by



        12         Dean Shields, who was looking to hire his deputy in



        13         the Admissions Office.



        14                        THE COURT:  So you learned on the job



        15         training?



        16   A.    That's very much true.



        17                        THE COURT:  Okay.



        18   A.    I had a great teacher.



        19   BY MR. KOLBO:



        20   Q.    And is it fair to say, Ms. Munzel, that as a



        21         director of Admissions--is that your title, by the



        22         way?



        23   A.    My title is assistant dean.



        24   Q.    Director of Admissions, is that your title?



        25   A.    My title is assistant dean and director of











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              130

 











         1         Admissions.



         2   Q.    And are you the most senior person within the office



         3         of Admissions, as far as admission making decisions?



         4   A.    Yes.



         5   Q.    And, in fact, you've been the most senior person in



         6         the Admissions Office since you became acting



         7         director and then full director of Admissions?



         8   A.    That's correct, yes.



         9   Q.    Is it fair to say that you have made the vast



        10         majority of admission decisions at the University of



        11         Michigan Law School since you assumed the position



        12         of acting director in 1998?



        13   A.    That's correct, yes.



        14   Q.    And I take it that was true, for example, with



        15         respect to this class adjusted rule in the fall of



        16         2000.  You were the person who made the vast



        17         majority of admission decisions for that class?



        18   A.    Yes.



        19   Q.    And my recollection, one of the things I learned in



        20         this case is, that you're probably right in the



        21         middle of the admissions cycle for the fall of 2001,



        22         is that right?



        23   A.    That's correct.



        24   Q.    There's other things you could be doing right, is



        25         that right?











                          GRUTTER -v- BOLLINGER, ET AL.



                                                                              131

 



         1   A.    That's true.



         2   Q.    Is there still a Faculty Admissions Committee?



         3   A.    Yes.



         4   Q.    And how active is the Faculty Admissions Committee



         5         in the decision making process?



         6   A.    The Faculty Admissions Committee, the members of



         7         that committee varies a little bit from year to



         8         year.  And their involvement is to advise on



         9         particular files that we bring to the Committee.



        10                        They're very involved in selecting



        11         merit scholarship recipients.  The Committee



        12         actually also handles Financial Aide, it's the



        13         Financial Aide and Admissions Committee.



        14                        So, sometimes there are financial



        15         aide issues that comes to the Committee, sometimes



        16         there's admission issues that comes to the



        17         Committee.



        18   Q.    Is it fair to say that the Faculty Admissions



        19         Committee does not make a significant number of



        20         decisions with respect to whether to admit or deny



        21         students out of the entire class that's selected?



        22   A.    I make the vast majority of the decisions with the



        23         guidance of the Faculty Committee.



        24   Q.    And there is a written admissions policy in effect



        25         for the law school?











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              132

 











         1   A.    Yes.



         2   Q.    Wayne, could I ask you to show the witness Exhibit 4



         3         or the book.



         4                        THE COURT:  That's Exhibit 4.  I have



         5         my copy right here.



         6   BY MR. KOLBO:



         7   Q.    Do you have Exhibit 4 in the notebook there in front



         8         of you?



         9   A.    Yes.



        10   Q.    Is Exhibit 4 a copy of the Law School's Admissions



        11         Policy in effect today?  Take whatever time you need



        12         to look at it.  And I think I might preface that by



        13         suggesting the first page of Exhibit 4 are the



        14         minutes of a resolution of the faculty approving



        15         what has been attached to the same document, the



        16         actual policy itself?



        17   A.    Yes, that's correct.



        18   Q.    And am I correct that this policy, Exhibit 4, we can



        19         call it the admissions policy today.



        20   A.    That's fine.



        21   Q.    This policy has been in effect during the entire



        22         time of your tenure within the Admissions Office, is



        23         that true?



        24   A.    Yes, that's true.



        25   Q.    Has the policy changed in any respect since it was











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              133

 











         1         adopted, at least, as far as you know?



         2   A.    No, the policy has not changed.



         3   Q.    As director of Admissions, assistant dean and



         4         director of Admissions, do you consider yourself and



         5         your Admissions staff to be obligated to carry out



         6         the policy as it's written?



         7   A.    Yes.



         8   Q.    Do you consider that you have as the Admissions



         9         director any discretion to disregard the policy and



        10         to adopt your own policy that might be in some



        11         respects inconsistent with the faculty admissions



        12         policy?



        13   A.    No.



        14   Q.    And do you, as far as you know, do you make all of



        15         your Admissions decisions on a year to year basis,



        16         in accord with the manner in which the policy



        17         direct?



        18   A.    Yes, I do my very best to do that.



        19                        MR. KOLBO:  Your Honor, we would



        20         offer Exhibit 4 into evidence.



        21                        THE COURT:  I assume there's no



        22         objection.



        23                        MR. GOLDBLATT:  None.



        24                        MR. WASHINGTON:  No objection.



        25











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              134

 











         1   BY MR. KOLBO:



         2   Q.    Ms. Munzel, now I would like to ask you about the



         3         policy, and I'm going to start by asking you to turn



         4         to page three, if you would, of the policy.



         5                        There's a reference, I think, on page



         6         three to index scores, is that a term that's



         7         familiar to you?



         8   A.    Yes, it is.



         9   Q.    And the policy goes into this in some detail, but I



        10         want to just see if I understand it correctly.



        11                        The index score, a selected index



        12         score which is the same thing as the index score,



        13         correct?



        14   A.    Yes.



        15   Q.    Those terms are kind of used interchangeably.  Am I



        16         correct that an index score is a single number that



        17         through a calculation of a formula, represents two



        18         variables.



        19                        An applicant's cumulative



        20         undergraduate grade point average, and the



        21         applicant's LSAT score?



        22   A.    Yes.  The LSAT score that is used, is the average



        23         LSAT score if the candidate took the test more than



        24         once.



        25   Q.    Okay.  And through a formula the Law Service











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              135

 











         1         Administration administers, they will calculate



         2         whatever an applicant's index score is based on just



         3         those two variables, correct?



         4   A.    The Law Services make a recommendation about what



         5         that formula would most appropriately be.  And then



         6         that is programmed into our computer data base.



         7                        And you should know that the GPA is,



         8         the undergraduate GPA as calculated by the



         9         Law Services.



        10   Q.    And they make a recommendation about the formula,



        11         the Law School is free to use it or not, correct?



        12   A.    Correct.



        13   Q.    Let me just ask you this, you may or may not know.



        14         But am I correct that the roughly formula provides



        15         that the applicant's LSAT score, or the average of



        16         the applicant's LSAT score is approximately



        17         two-thirds of the value of the selection index?



        18   A.    I don't know the exact formula of the index.



        19   Q.    To your knowledge, has the formula ever changed in



        20         any significant fashion during the time that you



        21         have been at the Admissions Office?



        22   A.    I don't really know what the formula is.  So it's



        23         difficult for me to say for sure whether it's



        24         changed.



        25   Q.    You have never passed on any requests that the











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              136

 











         1         formula be changed to Law Services, correct?



         2   A.    No, I have not.



         3   Q.    If I could ask you then to turn to page four of



         4         Exhibit 4, and I'm looking now there's really only



         5         one full paragraph on this page starting, "The



         6         Committee draws the following conclusions from these



         7         facts."



         8                        Do you see that paragraph there?



         9   A.    Yes.



        10   Q.    I just want to read the statement, first of all, in



        11         the policy.  "Bluntly, the higher one's index score,



        12         the greater should be one's changes of being



        13         admitted."



        14                        Is that, in fact, a generally true



        15         statement of how the Admissions policy or process



        16         works under your tenure?



        17   A.    Yes.



        18   Q.    The policy also states on page four that, "We expect



        19         the vast majority of those students we admit to have



        20         high index scores."



        21                        Is that also a generally true



        22         statement of how the process in the Admissions



        23         Office actually works?



        24                        That is, in the vast majority of



        25         cases the admitted students have high index scores?











                          GRUTTER -v- BOLLINGER, ET AL.

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         1   A.    Yes, it is.



         2   Q.    In addition to the reference to index scores, the



         3         policy also refers to a grid, combining the same two



         4         factors that go into the selection index.  I think



         5         this was actually on page six of the policy.



         6                        Am I correct there's a reference



         7         there to the grid that's attached to, I think, the



         8         last page of the policy itself?  I call it a grid, I



         9         think it's been referred to that.



        10   A.    Yes.  I believe in about the middle of that



        11         paragraph it says, "The result of the actual



        12         decision making has been that the pattern of our



        13         admissions decisions may be nicely visualized in



        14         terms of a grid with LSAT scores along with one



        15         axis, and undergraduate GPA along the other."



        16   Q.    And it also goes on to state, again I'm on page six



        17         here, after the reference to the figure that's



        18         attached.  "Most of our admitted students have had



        19         LSAT scores and undergraduate grade point averages



        20         that placed them in the upper right hand portion of



        21         the grid.



        22                        Applicants located at the extreme



        23         upper right hand corner of the grid where the



        24         highest LSAT scores overlap with the highest



        25         undergraduate grade point averages are very likely











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              138

 











         1         to be admitted, although not all are offered



         2         admission."



         3                        Is that, in fact, a true



         4         characterization of the way admissions generally



         5         works, the admissions process?



         6   A.    Yes.



         7   Q.    And then the policy continues to state, "The further



         8         applicants are from the upper right corner, the less



         9         likely they are to be offered admission."



        10                        Is that again an accurate



        11         characterization of the way things actually work in



        12         the admission process?



        13   A.    Yes.



        14   Q.    And then it goes on, "Thus we may think of the upper



        15         right portion of the grid as indicating the



        16         combinations of LSAT and undergraduate grade point



        17         averages that characterize the overwhelming bulk of



        18         student admitted."



        19                        Is that again a generally accurate



        20         statement, with respect to how things actually turn



        21         out in the admission process?



        22   A.    Yes, it is.



        23   Q.    The statements in the policy about the higher one is



        24         up under grid, further up to the right one is in the



        25         grid having a greater likelihood of admission,











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              139

 











         1         that's kind of another way of saying, isn't it, that



         2         the policy says earlier which is, bluntly, the



         3         higher one's index score is, the higher one's chance



         4         should be of being admitted, basically the same



         5         thing?



         6   A.    Yes.



         7   Q.    Now, there is, I take it, although you've got an



         8         admissions policy that you are mandated to operate



         9         under.  I assume that there is discretion that



        10         you're able to exercise in your office, correct?



        11   A.    Yes, there's a lot of discretion.



        12   Q.    We talked about LSAT scores, we talked about grids



        13         now.  And I take it that you don't simply, and I



        14         think I have learned this in the course of this



        15         lawsuit, you don't simply take select index scores,



        16         or LSATs or GPAs by themselves and rank them in



        17         descending order, and then they pick automatically



        18         in rank order of applicants for admission, do you?



        19   A.    No, we absolutely do not do that.  We read every



        20         file, we look at the transcripts, we don't just look



        21         at the GPA, we look at the transcripts.



        22                        We evaluate the strength of the



        23         academic record.  We read the personal statement to



        24         see what this person is telling us about their own



        25         history, and their own life and their own











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         achievements.



         2                        We read their resumes, information



         3         about other activities they've been involved in.  We



         4         read their letters of recommendation, and we use all



         5         of that information to assess the real strength and



         6         real potential of the candidate, sort of no matter



         7         what their LSAT and the GPA are.



         8                        And we are also always thinking about



         9         what would this person add to the mix at the law



        10         school.  What would this person add to the class.



        11   Q.    It's fair to say though, that although they're



        12         certainly not the only factors, LSAT scores and



        13         undergraduate grade point averages are very



        14         important in the admissions process, true?



        15   A.    Yes, they are very important.  Assessing the quality



        16         of their academic work and the person's potential to



        17         excel in the study of law and at the practice of



        18         law, are important parts of what we do.



        19   Q.    If I can just digress a little bit perhaps, and make



        20         it clear why I do this later on.  But there's a



        21         footnote two to the policy, you see that on page



        22         seven?



        23   A.    Yes.



        24   Q.    And this is a footnote to the statement that we read



        25         earlier, a text states, we may think of the upper











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              141

 











         1         right portion of the grid as indicating combinations



         2         of LSAT and grade point averages that characterized



         3         the overwhelming bulk of students admitted.



         4                        And in the footnote drop down from



         5         there it says, "The location of out of state



         6         admittees as a group would, if plotted separately,



         7         be higher and closer to the upper right corner, than



         8         the location of all admittees since the group of



         9         non-resident admittees is on the whole, somewhat



        10         stronger on the plotted dimensions than the group of



        11         resident admittees."



        12                        Is that footnote two, is that a



        13         generally accurate statement about where resident



        14         and non-resident admittees fall on the grid



        15         generally speaking?



        16   A.    I have not looked at residents and non-residents



        17         separately on a grid to really be able to confirm



        18         that.



        19   Q.    Would it be a fair statement though, I assume you're



        20         as knowledgeable as anyone about the general overall



        21         academic credentials of your applicant pool,



        22         correct?



        23   A.    Yes.



        24   Q.    Is it fair to say that on generally speaking, the



        25         academic credential measured by LSAT scores and











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         grades are generally higher for your non-resident



         2         admittees, then for your resident admittees?



         3   A.    We have a lot more non-resident, non-Michigan



         4         resident applicants to the law school then we have



         5         resident applicants.  So, the resident applicants is



         6         sort of a smaller pool.



         7   Q.    But my question isn't about the size of the pool, my



         8         question is about the level of the academic



         9         credentials.



        10                        Is it true that generally speaking,



        11         the academic credential, at least as measured by



        12         LSAT scores and grade point averages, are generally



        13         higher for non-resident applicant admittees, then



        14         they are for resident admittees?



        15   A.    Resident applicants have LSAT scores and GPAs that



        16         have the same sort of range as non-resident



        17         applicants.  So, there are some incredibly strong



        18         Michigan residents who apply to the law school.



        19                        So, the range of their qualities, I



        20         would say, is very similar, or the same as the



        21         non-resident.  But we have a higher volume of



        22         non-resident applicants.



        23   Q.    Well, is it not true then on a whole the academic



        24         credentials of the non-resident admittees are



        25         somewhat stronger than those of the resident











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              143

 











         1         admittees?



         2   A.    I think that would depend on how many resident and



         3         non-residents you were looking at in a given point



         4         in time.



         5   Q.    Well, let's take all of them in one particular year.



         6         All resident admittees compared to all non-resident



         7         admittees, you generally expect to find that the



         8         academic credentials of the non-resident admittees



         9         are generally somewhat higher?



        10   A.    It would depend on the number in that particular



        11         class.  Each year I have a conversation with



        12         Dean Lehman and I ask him, does he have a particular



        13         goal in mind in terms of how many residents we want



        14         to have in the entering class.



        15                        And if he said to me we only want



        16         five percent or ten percent of our students to be



        17         Michigan residents, then I think their academic



        18         qualification and their LSAT scores would be as high



        19         or higher on the whole.  You know, compared to the



        20         non-resident admittees.



        21   Q.    Well--



        22   A.    (Interposing)  But he doesn't typically say he wants



        23         five or ten percent, he typically wants closer to a



        24         third.  A quarter to a third of the class to be



        25         Michigan residents.











                          GRUTTER -v- BOLLINGER, ET AL.

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         1                        So, because of that, I think



         2         sometimes if you look at the whole, there would be



         3         residents who are admitted who might have lower LSAT



         4         scores and perhaps lower GPAs, then some of the



         5         non-resident admittees.



         6   Q.    And that's because of the desire to make sure that a



         7         reasonable portion of the space in a class go to



         8         residents of Michigan, correct?



         9   A.    That's correct.  And it also is because of the pool



        10         of applicants that we have.



        11   Q.    Do I understand that if the pool were smaller, that



        12         is if the decision was to admit fewer residents from



        13         Michigan, let's say, five percent as opposed to 30



        14         percent, you would expect that the academic



        15         credentials would be relatively closer between the



        16         two groups?



        17   A.    Yes, I think that's probably true.



        18   Q.    Okay.



        19   A.    It would depend on what we call our pre-admit, which



        20         is the work that we do to make sure that people are



        21         flying to the law school.  So it would depend on the



        22         strength of the pool that we had to select from.



        23   Q.    And I think you kind of implied this, but let me



        24         just ask it.  I take it that residency is one of the



        25         factors you will consider in making admission











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              145

 











         1         decisions?



         2   A.    Yes.



         3   Q.    Whether an applicant is a resident of Michigan or a



         4         non-resident?



         5   A.    Yes.



         6   Q.    And that's something that can make a difference in



         7         some cases?



         8   A.    That's right.



         9   Q.    And in some cases it will make no difference?



        10   A.    That's right.



        11   Q.    And I think the policy itself speaks to, I used the



        12         term earlier, I'm not sure that I can find it.  But



        13         it speaks to a policy directive of ensuring



        14         that--this is on page two actually of the policy.



        15                        "A reasonable proportion of our



        16         placements should go to Michigan residents, even if



        17         some have qualifications lower than those of some



        18         applicants from outside Michigan."



        19                        I was reading from page two of the



        20         policy there.  Do you see that there?



        21   A.    Yes, I do.



        22   Q.    And that's a true statement?



        23   A.    Yes.



        24   Q.    And are residents of the state of Michigan regarded



        25         to have sort of a special claim on consideration for











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              146

 











         1         admission to the law school?



         2   A.    I don't know if I understand that question.



         3   Q.    Well, then let me read from the policy, again on



         4         page two, the very bottom.  "The challenge is to



         5         meet our goals while ensuring that all who enter can



         6         succeed here in honoring the special claims of



         7         Michigan residents to a Michigan Law School



         8         education."



         9                        The policy contemplates that whatever



        10         that means, residents of Michigan are recognized to



        11         have some special claim, consideration of the



        12         admission process, true?



        13   A.    Yes.  As you read the sentence, the challenge is to



        14         meet our goals, while ensuring that all who enter



        15         can succeed here and honoring special claims of



        16         Michigan residents to a Michigan Law School



        17         education.



        18   Q.    And the policy speaks in terms of reasonable



        19         proportion of residents, correct?



        20   A.    Yes.



        21   Q.    It does not give a target range?



        22   A.    That's right.



        23   Q.    Does it give a specific number?



        24   A.    No.



        25   Q.    And, in fact, I think you've alluded to this, you











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              147

 











         1         had a conversation with the dean each year to



         2         ascertain what that reasonable proportion is going



         3         to be?



         4   A.    That's right.



         5   Q.    But it always turn out to be some number or some



         6         range, correct?



         7   A.    It's typically in my experience been a quarter to a



         8         third of the class.



         9   Q.    And so just to be clear on this, you make enough



        10         offer of admissions so you can expect to actually



        11         enroll, that is get a yield rate of a quarter to,



        12         you said 30 percent?



        13   A.    A quarter to a third.



        14   Q.    Did I explain that correctly, is that your process?



        15         Maybe I confused myself on that one.



        16                        The number of quarter to a third,



        17         your objective or your mandate is to make enough



        18         offers of admission based on your enjoinment to end



        19         up with a yield, that is actual enrollment of 25



        20         percent to a third Michigan residents, correct?



        21   A.    Correct.



        22   Q.    And just like I've learned this language a little



        23         bit as I try to learn so many things in this case.



        24         Yield means as I understand it, percentages of



        25         students that actually enrolled following an offer











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              148

 











         1         of admission, right?



         2   A.    That's right.  When we refer to yield, we are



         3         talking about our success in--people that we admit



         4         to actually enroll at our Michigan Law School.



         5                        Most of the people that are admit to



         6         admitted to several other, you know, very tremendous



         7         law schools and they're in a position to choose.



         8                        So, we have worked very hard to



         9         provide them with information about the University



        10         of Michigan, to have them talk to our students, to



        11         our faculty, so that they can make a choice.



        12                        And, of course, we try to show them



        13         why we think the University of Michigan is a great



        14         place to get a legal education.



        15                        So, when we talk about yield, we are



        16         talking about that percentage of people who accept



        17         our offers.



        18   Q.    And I think your point is well taken too.  Your job



        19         is not just making offers to admission, part of your



        20         job is convincing applicants to come to Michigan,



        21         because you are competing with other schools?  You



        22         have a lot of other schools competing with you?



        23   A.    We compete with a lot of other schools, yes.



        24   Q.    But that's part of your job?



        25   A.    That is a big part of my job, yes.











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              149

 









         1   Q.    And just to kind of sum up about residency and how



         2         that's factored into the process.  I gather then



         3         there's a fair amount of flexibility built into each



         4         year of determining how many Michigan residents you



         5         expect to enroll as part of the process, correct?



         6   A.    So you're asking?



         7   Q.    There's a flexibility in that based on your



         8         conversations with the dean?



         9   A.    Yes.



        10   Q.    Does it change from year to year, I think you said



        11         it's generally been 25 percent to a third.



        12                        Has that changed in any significant



        13         way since you've been director?



        14   A.    In the three years that I have been the dean of



        15         Admissions, that it has fallen within that range.  A



        16         quarter to a third.



        17   Q.    Now, we talked earlier about index scores and I want



        18         to turn back to that a little bit again, and ask you



        19         to turn to page eight of the Admissions Policy.



        20                        The policy certainly contemplates



        21         that you're going to make some offers of admission



        22         to students who are not in the upper right hand



        23         corner, the far upper right hand corner of the grid,



        24         is that correct?



        25   A.    That's correct.











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              150

 











         1   Q.    And the policy itself actually, in general terms,



         2         contemplates at least two scenarios, in which case



         3         that's two general scenarios in which that's



         4         approved, correct?



         5   A.    That's correct.



         6   Q.    And in reading from page eight again quoting from



         7         the policy, "As we have noted, some students will



         8         qualify for admission despite index scores that



         9         place them relatively far from the upper right



        10         corner of the grid. There are two principal types of



        11         reasons for such admissions."



        12                        Am I correct, and I don't think that



        13         I'm necessarily going to read verbatim from the



        14         policy here.



        15                        But am I correct that the first of



        16         those types of reasons generally is where you have



        17         information in the file, in the applicant's file



        18         which would lead you as the admissions decision



        19         maker, to be somewhat skeptical about the predicted



        20         value, say, at the end of the score?



        21   A.    That's correct.  We read the files and we make out



        22         own judgment about this person's, this applicant's



        23         potential to excel at the study of law and as a



        24         lawyer.



        25                        So, we don't just listen to the index











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         score, we look beyond the LSAT score and the GPA.



         2   Q.    And if you, for example, see that's there's



         3         something in the file that suggest a mediocre LSAT



         4         score, it doesn't seem to be a great predictor for



         5         this student, because he or she is high achieving



         6         student, you might give some lesser weight to the



         7         LSAT score in that case?



         8   A.    That's true, all though I don't give weight.  I



         9         don't use a formula and I don't view every file in



        10         the same way.  I really use my own judgment and my



        11         own thinking to evaluate what I see in the file.



        12                        So, I read every file, I read



        13         everything that the person tells us.  The essays



        14         that they submit and the recommendations that are



        15         written on their behalf.  To use my own judgment to



        16         sort of interpret the numbers.



        17   Q.    That's the first principal reason though, where you



        18         might depart from what the policy calls for the



        19         general policy, taking applicants from the upper



        20         right hand grid.



        21                        That is where something leads you to



        22         be skeptical about predicted value of the index



        23         score, right?



        24   A.    Where I can tell from the file where I have



        25         confidence that this person is going to perform very











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         well in law school, then I might admit somebody that



         2         has a lower LSAT score, or perhaps even a lower GPA



         3         then some of the other candidates.



         4   Q.    And then there's a second general policy, refers to



         5         a second principal type of basis for granting



         6         admission, even when index scores for that applicant



         7         are relatively far from the upper right hand corner



         8         of the grid.



         9                        And that second principal type of



        10         reason has to do with achieving diversity, correct?



        11   A.    Yes.  Now, you're reading from page nine at the



        12         bottom of the paragraph of the policy?



        13   Q.    Yes.  I didn't know I was reading from it.  But,



        14         yes.



        15   A.    It says, "The second sort of justification for



        16         admitting student with indices relatively far from



        17         the upper right corner, is that this may help



        18         achieve that diversity which has the potential to



        19         enrich everyone's education, and thus make a law



        20         school class stronger than the sum of its parts.



        21   Q.    And you've read the policy, correct?



        22   A.    Yes.



        23   Q.    And among the different types of diversity that the



        24         policy contemplates and values, am I correct that



        25         there is a commitment to one particular type of











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         diversity, and that's to racial and ethnic



         2         diversity?



         3   A.    Yes.



         4   Q.    And if you can turn to page twelve.  That's, in



         5         fact, what the policy says, isn't it?



         6   A.    Yes.  The first full paragraph on page twelve says,



         7         "There is, however, a commitment to one particular



         8         type of diversity that the school has long had and



         9         which should continue.



        10                        This is a commitment to racial and



        11         ethnic diversity with special reference to the



        12         inclusion of students from groups which have been



        13         historically discriminated against, like African



        14         American, Hispanics and Native Americans, who



        15         without this commitment might not be represented in



        16         our student body in meaningful numbers.



        17                        These students are particularly



        18         likely to have experiences and prospectives of



        19         special importance to our mission."



        20   Q.    That's a statement of the policy?



        21   A.    Yes, I just read from the policy on page twelve.



        22                        MR. GOLDBLATT:  If I could just put



        23         on the record, I understand that the entire document



        24         has been admitted into evidence.



        25                        I think that this calling of it is











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              154

 











         1         out of context and is leading.  So, long as the



         2         entire document is in the record, that would be



         3         available.



         4                        THE COURT:  The entire document is in



         5         the record, yes.



         6                        MR. KOLBO:  And I'm not just trying



         7         to read the policy to see what it says, I want to



         8         draw a connection, I want to make sure that I



         9         understand not just what the policy says, but the



        10         way things actually work and that's how I've been



        11         asking the questions and I want to continue along



        12         that line.



        13   BY MR. KOLBO:



        14   Q.    Am I correct that you just read the policy with



        15         respect to these commitment to diversity, racial



        16         diversity or part of it here.



        17                        In making your admission decisions,



        18         does the Admissions office, in fact, have a



        19         commitment to ensuring racial and ethnic diversity



        20         in the class?



        21   A.    Yes, my job is to carry out this policy, and that's



        22         what I do.  I read the files as I have described, I



        23         read the personal statements.  I look to see what



        24         this person is telling me they might offer.  I read



        25         the recommendations, their resumes, information that











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         they give us about their activities, their



         2         experiences.



         3                        I look carefully at their academic



         4         records.  And I am constantly thinking about, sort



         5         of constantly evaluating their potential to excel as



         6         a law student.



         7                        And I'm constantly thinking about



         8         what kind of contribution would this person make to



         9         the intellectual life of the law school.



        10                        What would this person add to the



        11         mix, is this going to be who would be engaged, who



        12         would share their ideas with their fellow classmates



        13         and with the faculty.



        14                        And we want to achieve a mix of



        15         people with coming from a variety of backgrounds and



        16         so forth.  Including racial backgrounds that are



        17         different.



        18   Q.    And I think you answered a lot of questions, but I



        19         want to make sure that one question in particular



        20         was answered.



        21                        That is, you as the Admissions



        22         officer have a commitment to one particular type of



        23         diversity, and that is to racial and ethnic



        24         diversity, correct?



        25   A.    I carry this policy out and that's what the policy











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         instructs me to do, that's correct.



         2   Q.    So the answer is yes to my question?



         3   A.    I think I gave my answer.  Did I miss the question?



         4   Q.    Is it true that in the Admissions Office is there a



         5         special reference to the inclusion of students from



         6         groups which have been historically discriminated



         7         against, like African Americans, Hispanics and



         8         Native Americans, is that true, with respect to the



         9         way the process actually operates?



        10   A.    The way the process operates is when I read files,



        11         one of the things that I'm paying attention to is



        12         any information the candidate has given me about him



        13         or herself.



        14                        Including his or her racial identity,



        15         background and so forth, experience.  And so that's



        16         one of the things that I'm paying attention to as



        17         I'm reading the file.



        18   Q.    But my question is, are you committed in carrying



        19         out the policy to ensuring that there is a special



        20         reference to the inclusion of students from groups



        21         which have been historically discriminated against,



        22         like African Americans, Hispanics and Native



        23         Americans, is the answer yes or no to that question?



        24   A.    When I read files I'm paying attention to the racial



        25         identity if the person has chosen to give that to











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         1         me.  And that is one of the factors that I consider.



         2   Q.    That is inclusion of students from these groups that



         3         I just mentioned?



         4   A.    Right.  And other ethnicities.



         5   Q.    Are Puerto Ricans included within the group of



         6         historically discriminated against minorities who



         7         receive consideration in the process?



         8   A.    When I read files, I pay attention to whatever



         9         ethnicity a person has told me about.  If they tell



        10         us that they are a member of a minority group,



        11         that's one of the things that I'm paying attention



        12         to.



        13   Q.    Do you understand that it's your charge within the



        14         Admissions Office to make enough offers of admission



        15         to applicants from historically discriminated



        16         against underrepresented minority groups, to get



        17         meaningful numbers of those students in the class,



        18         is that part of your charge?



        19   A.    My goal is to make enough offers of admission in a



        20         given season so that we can fill the class to the



        21         level that Dean Lehman has set as a goal.



        22                        And to achieve a mix of people,



        23         people from different backgrounds with different



        24         experiences, coming from a variety of walks of life,



        25         people who have different prospectives.











                          GRUTTER -v- BOLLINGER, ET AL.

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         1                        And I pay attention to the mix of



         2         ethnicities that we're achieving as I go along with



         3         the process.



         4   Q.    Ms. Munzel, the policy, am I correct, the policy



         5         calls for efforts to a commitment to enroll a



         6         meaningful numbers of members of certain racial



         7         groups, including African Americans, Hispanics and



         8         Native Americans.



         9                        Do you, in fact, ensure that there



        10         are efforts in the Admissions Office to enroll a



        11         meaningful number of those groups?



        12   A.    Yes.



        13   Q.    The policy also speaks later on on page twelve to



        14         enrollment of a--it speaks of enrollment of a



        15         critical mass of minority students.  You see that, I



        16         think it's on the second full paragraph on page



        17         twelve.



        18                        "By enrolling a critical mass of



        19         minority students, we have ensured their ability to



        20         make unique contributions to the character of the



        21         Law School.



        22                        The policies embodied in this



        23         document should ensure that the those contributions



        24         continue in the future."



        25   A.    Yes.











                          GRUTTER -v- BOLLINGER, ET AL.

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         1   Q.    Do you understand that it's your mandate as



         2         Admissions officer to make admission decisions such



         3         that you can ensure that you can that the Law School



         4         will enroll a critical mass of minority students?



         5   A.    Yes.



         6   Q.    Do you understand that the term critical mass to



         7         mean the same thing as meaningful numbers?



         8   A.    Yes.  My understanding of critical mass is that we



         9         want to have enough minority students in the law



        10         school so that they're able to make contributions to



        11         the life of the school, to the dialogue that's going



        12         on.  And if there are not enough, they could feel



        13         completely isolated and unable to do that.



        14                        So, my understanding of critical mass



        15         is that we need to have a meaningful representation



        16         of minority students, so that they are able to make



        17         the kind of contributions that we hope they can



        18         make.



        19   Q.    Is there anyone who is more responsible or



        20         knowledegable about you, more knowledgeable than you



        21         about how the Law School goes about the actual



        22         process of ensuring that a critical mass, or



        23         meaningful numbers of minority students are enrolled



        24         each year?



        25   A.    I turn to the faculty and to the dean to give me











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         feedback about the quality of the class that we



         2         enroll.  The feedback that I get from them is that



         3         they're very pleased with the mix of students, with



         4         the level of engagement in the classroom, and the



         5         variety of experiences that people are drawing in



         6         the discussions in the classroom.



         7   Q.    But you're the one who is actually making the



         8         decisions about how to go about enrolling students



         9         such that you get a critical mass, or meaningful



        10         numbers of minority students, correct?



        11   A.    Yes, I make the Admissions decisions, that's right.



        12   Q.    So, you may get feedback, but you're the one that's



        13         actually implementing the policy?



        14   A.    That's right.



        15   Q.    And deciding how to go about obtaining and achieving



        16         enrollment that constitutes a critical mass,



        17         correct?



        18   A.    Right.  It's my job to carry out the policy.  Review



        19         the applications, make the offers of admission and



        20         then recruit the people that we have admitted.



        21   Q.    Now, you don't have a definition, do you, of the



        22         term critical mass?



        23   A.    I told you what my understanding of that term is.



        24         There is not a specific number, or there's not any



        25         kind of definite percentage or target that equal











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         critical mass.



         2   Q.    You were deposed in this case?



         3   A.    Yes.



         4   Q.    Wayne, could you show the witness a copy of her



         5         deposition.  I'm going to be reading from page 102



         6         of the transcript.



         7                        You have it in front of you?



         8   A.    I'm getting to the page.



         9   Q.    Have you found it?



        10   A.    Yes.



        11   Q.    You were represented by counsel obviously at this



        12         deposition?



        13   A.    Yes.



        14   Q.    I just want to read a series of questions and



        15         answers, and ask you if these are accurately given.



        16             "Q.   What is--how would you define what



        17                   critical mass is of minority students?



        18              A.    I don't know that I have a particular



        19                    definition for that.



        20              Q.    Well, it is part of the policy, is it



        21                    not, in implementing this policy, how do



        22                    you make decisions about what a critical



        23                    mass is?



        24              A.    I don't know that in my capacity I have



        25                    to make a decision about what a critical











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              162

 











         1                    mass is.



         2              Q.    And has there, as part of implementing



         3                    this policy which has been in effect



         4                    since 1992, has anyone within the



         5                    Admissions Office made a determination



         6                    about what constitutes a critical mass



         7                    Of minority students?



         8              A.    Not that I'm aware of.



         9              Q.    Has that ever been the subject of a



        10                    discussion, as far as you know?



        11              A.    Not that I'm aware of."



        12                        Did you give those answers to those



        13         questions?



        14   A.    Yes.



        15   Q.    Are those true answers to those questions?



        16   A.    Yes.  There is no particular definition in terms of



        17         a number or a target.  And what I said today is my



        18         understanding of that concept.



        19   Q.    Is it fair to say that there must be some minimum



        20         number of minority students that must be in enrolled



        21         in order to achieve critical mass, or meaningful



        22         numbers, there must be a minimum, right?



        23   A.    I think that the number of people that would



        24         constitute critical mass, would vary depending on a



        25         lot of other factors.  So, I don't know that in the











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         abstract you can pull a number out and say that this



         2         would be critical mass and this wouldn't.  It would



         3         depend on a lot of other factors.



         4   Q.    There is a number, but you just don't know what it



         5         might be?



         6   A.    I don't know that there is a number.



         7   Q.    Well, would one be enough in a class?



         8   A.    I would have to talk to the faculty, I think it



         9         would depend on what the culture was like.  It's a



        10         little hard for me to imagine that one minority



        11         student would constitute critical mass.



        12   Q.    And that's my point.  There's some minimum, correct?



        13         If there's some minimum, you don't know what it is?



        14   A.    I don't think you can--I don't think you can pick a



        15         number out in an abstract way.  I think it would



        16         depend on the interaction in the classroom, it would



        17         depend on the students, it would depend on a lot of



        18         other factors that are not known to me at this



        19         point.



        20   Q.    And then each year as you are going about deciding



        21         how to assemble a critical mass, do you try to get



        22         answers to those various questions you just



        23         mentioned, so that you know how much is a critical



        24         mass?



        25   A.    I rely on feedback that I get from the faculty and











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         from the dean about their satisfaction and



         2         excitement about the students that we have attracted



         3         to the Law School.  That we have admitted and



         4         attracted to the Law School.



         5   Q.    Well, have you received any feedback about what the



         6         minimum number might be that constitutes either



         7         meaningful number or critical mass?



         8   A.    No.



         9   Q.    So, you have not made any effort to change the



        10         number, whatever it might be from year to year, as



        11         you make these admission decisions, correct?



        12   A.    I don't think about critical mass on a day-to-day



        13         basis, it's not something that I'm focused on.  I'm



        14         focused on reading the files, evaluating the



        15         candidate that we have in a given year, and making



        16         those judgments on an individualized basis.



        17                        So, I'm not too focused on, gee, do I



        18         have critical mass.  It's not currently what I'm



        19         thinking about.



        20   Q.    Isn't that part of your job?



        21   A.    My job is to carry out the policy and to make sure



        22         that in the end we have achieved the goals of this



        23         policy.



        24   Q.    But you're not making efforts to ascertain what a



        25         critical mass is for a particular year, who is











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         making that effort in the Law School?



         2   A.    If I were not achieving the goals as set forth in



         3         this policy, I am sure that the dean would let me



         4         know that.



         5   Q.    So, you might hear from faculty or the dean, that



         6         whatever numbers were getting enrolled were



         7         insufficient?



         8   A.    Correct.



         9   Q.    To constitute critical mass?



        10   A.    I think that if they were dissatisfied with how I



        11         was carrying this out, they would let me know.



        12   Q.    And that has not happened in your tenure?



        13   A.    Correct.



        14   Q.    So, whatever it is that you're getting from year to



        15         year, that at least constitutes critical mass,



        16         correct?



        17   A.    Based on the feedback that I've gotten about the



        18         classes that I've admitted, I believe that we have



        19         achieved critical mass.



        20   Q.    But it could be something less than what you're



        21         admitting, right?



        22   A.    I feel that we have achieved it because of the



        23         feedback that I've gotten.  Nobody has had a



        24         discussion with me to say, you could have less, you



        25         could have had more, you should have had less or you











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              166

 











         1         should have had more.



         2   Q.    But I guess that's my point.  It could be that



         3         you're enrolling well more than what would be



         4         considered by the faculty or others to be a critical



         5         mass, right?



         6   A.    I don't know if I can answer that.



         7   Q.    You wouldn't know, would you, unless they were to



         8         complain to you, about whether or not you were



         9         enrolling too few to be a critical mass?



        10   A.    Right.  I would rely on getting feedback.



        11   Q.    I'm not going to ask you to buy into these numbers,



        12         but I want to see if you can follow my point.  Let's



        13         say, for example, that you are enrolling a class of



        14         year to year basis of, say, ten to twelve percent,



        15         or ten to 13 percent underrepresented minority



        16         students, and you're getting no feedback from the



        17         faculty on that because they think that the critical



        18         mass is something around five percent or so.



        19                        You wouldn't hear anything, would



        20         you, from the faculty as long as you were between



        21         ten and 13 percent, correct?



        22                        MR. GOLDBLATT:  Your Honor, if I



        23         could object, I mean I don't understand this



        24         question.  Are we asking whether the faculty would



        25         give her feedback of enrollment as it existed.  I











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              167

 











         1         just don't understand the question7



         2                        THE COURT:  The issue is whether or



         3         not the witness understands the question.  Can you



         4         repeat it?



         5                        MR. KOLBO:  I can probably rephrase



         6         it a little better.



         7   BY MR. KOLBO:



         8   Q.    If you are, in fact, enrolling more on a year to



         9         year basis than what the faculty would actually



        10         consider necessary to be a critical mass of



        11         students, you're not going to hear about it, are



        12         you?



        13                        If you enroll something less than



        14         that, as long as there's more than what the faculty



        15         contemplates as critical mass?



        16   A.    I'm not sure, you have a lot of lesses and mores in



        17         that question.  I'm not sure.



        18                        THE COURT:  Why don't you rephrase it



        19         one more time.



        20   BY MR. KOLBO:



        21   Q.    All you know, Ms. Munzel, is that you're currently



        22         enrolling a critical mass of minority students



        23         because you're not hearing complaints from the



        24         faculty, right?



        25   A.    That's right.











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              168

 











         1   Q.    You don't know, do you, how much less in terms of



         2         how few or in terms of minority enrollment you could



         3         make, that would still satisfy the faculty's concern



         4         for minority admissions for critical mass, correct?



         5   A.    The faculty has not said that to me, that's correct.



         6   Q.    You just don't know how much lower enrollments might



         7         actually be that would still constitute as far as



         8         the faculty is concerned, the critical mass, true,



         9         because you haven't heard anything like that?



        10   A.    I guess what I can say is that I have not heard



        11         negative feedback about the mix of people and the



        12         makeup of our class.



        13   Q.    Let me just ask a couple of more specifics.  We



        14         talked about one student, do you know one way or the



        15         other whether minority enrollment, underrepresented



        16         minority enrollment of five percent would be



        17         sufficient to constitute critical mass at the



        18         University of Michigan Law School?



        19   A.    There is not a specific number or target or



        20         percentage that is defined as critical mass.  And I



        21         think I have tried to explain that I think it would



        22         depend on a lot of different circumstances.  So I



        23         don't think I can answer that question.



        24   Q.    So, you can't rule it out though either, can you?



        25         You can't rule out five percent perhaps as











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              169

 











         1         constituting critical mass, can you?



         2   A.    Not just throwing a number out.  No, I can't.



         3   Q.    You can't rule out ten percent, can you?



         4   A.    I don't think I can--I don't think I can give any



         5         percent that alone would constitute critical mass.



         6         I think that it depends on a lot of other



         7         circumstances and factors.



         8                        THE COURT:  What are the other



         9         factors and circumstances?



        10   A.    I think that would be largely up to the faculty, in



        11         terms of what the environment in the classroom was.



        12         The discussion of critical mass talks about--



        13                        THE COURT:  (Interposing)  So again



        14         from the faculty you don't know what they are?



        15   A.    Pardon me?



        16                        THE COURT:  That's not within your



        17         expertise you would get from the faculty to give you



        18         the feedback of what those were?



        19   A.    Yes.



        20                        THE COURT:  Okay.



        21   BY MR. KOLBO:



        22   Q.    And they haven't given you feedback to do anything



        23         to suggest to change what critical mass is at the



        24         Law School, correct?



        25   A.    Right, I have not gotten any negative feedback.  I











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              170

 











         1         have gotten positive feedback that they are please



         2         with the mix of students.  So I believe that I have



         3         achieved what the policy sets out.



         4   Q.    There was reference I think in Mr. Payton's opening



         5         statement to a token of minority students.  What



         6         does a token represent of minority students?



         7   A.    Unfortunately I didn't get to hear Mr. Payton's



         8         opening statement, I wish I could have.  But I think



         9         the word token typically means that it's just a



        10         small, too small.  It's just a one person, or a very



        11         small number of people.



        12                        So, I mean, I think, in this context



        13         you're not able to contribute because it's just a



        14         token.



        15   Q.    So, critical mass is something more than a token,



        16         true?



        17   A.    Yes.



        18   Q.    But you don't know how much more in terms of the



        19         number of percentage or a range of students that



        20         would be, correct?



        21   A.    There's not a specific number that I can give you



        22         that would equal critical mass.



        23   Q.    Or a range of numbers?



        24   A.    Correct.



        25   Q.    Or a range of percentages of the class?











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              171

 











         1   A.    Correct.



         2   Q.    Does each racial or ethnic group have its own



         3         critical mass, or is it just in reference to the



         4         aggregate underrepresented  minority population?



         5   A.    I don't think of critical mass that specifically, I



         6         don't think of it in terms of each specific group,



         7         and I don't make decisions with this idea of



         8         critical mass, you know, weighing on me all the



         9         time.



        10                        I read the applications and look for



        11         people that are going to contribute to the mix,



        12         contribute to the dialogue.  People who have



        13         different experiences, people who come from



        14         different racial backgrounds and I make those



        15         selections.



        16                        When all is said and done and I look



        17         to see how have we done, you know, in terms of who



        18         we have admitted and whether they're coming to the



        19         Law School, I believe that we have achieved critical



        20         mass.  You know, just consistent with the discussion



        21         that we have just had, because of the feedback that



        22         I get.



        23   Q.    Do you know whether it's possible to enroll a



        24         critical mass of minority students if you don't have



        25         members of a particular group in that critical mass?











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              172

 











         1                        For example, can you have critical



         2         mass of the law school if you don't have any members



         3         from the Hispanic race?



         4   A.    The policy suggest that we want to have a critical



         5         mass of minority students, and it specifically



         6         mentions several ethnic minorities who have



         7         historically been discriminated against.



         8                        I would work hard to make sure that



         9         those ethnic groups are represented.  But, I don't



        10         feel that there's sort of a certain number of each



        11         group that I have to achieve.



        12   Q.    So, you don't try to enroll a critical mass of



        13         subgroups of different racial groups, correct?



        14   A.    No, I think of critical mass a little bit more



        15         generally than that.



        16   Q.    Okay.  Do you know what in the course of the last



        17         couple of years, what percentage of underrepresented



        18         minority students you have enrolled at the



        19         Law School?



        20   A.    I have not looked at those statistics recently.  I



        21         think in this year's entering class, my recollection



        22         is that we had about I think it was 25, 26 percent



        23         minority students.



        24   Q.    Does that include Asian Americans?



        25   A.    I believe it does.











                          GRUTTER -v- BOLLINGER, ET AL.

                                                                              173

 











         1   Q.    Do you know what the population was, the percentage



         2         was of African Americans, Hispanics, Native



         3         Americans and Puerto Ricans?



         4   A.    I would have to look at some statistics, because I



         5         haven't memorized those numbers, I'm sorry.  I'm not



         6         even sure about the guess I just made about the



         7         total minority enrollment.  I would have to check



         8         the numbers.



         9   Q.    Whatever those number are though, you've come to



        10         conclude that they constitute critical mass?



        11   A.    Yes.



        12   Q.    Meaningful numbers of minority students?



        13   A.    Yes.  Based on the feedback that I've gotten, that's



        14         right.



        15   Q.    And whether they could be something less it could



        16         still be meaningful and critical, you just don't



        17         know, correct?



        18   A.    That's right.  I would need to have information



        19         feedback from the faculty to make that judgment.



        20   Q.    I think we covered this earlier.  But would you



        21         agree that undergraduate grade point averages and



        22         LSAT scores are generally very important factors in



        23         the Admissions decision making process?



        24   A.    Those are very important factors that we take into



        25         consideration, absolutely.











                          GRUTTER -v- BOLLINGER, ET AL.

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         1   Q.    Would you agree that the University of Michigan is 



         2         highly selective school?



         3   A.    We are fortunate to have an applicant pool from year



         4         to year that is greater than the number of people



         5         that we can admit.  So that we are in a position to



         6         be able to be selective within that pool.



         7   Q.    And would you agree that it's pretty well known



         8         among law school applicants and faculty, that the



         9         Michigan Law School is a highly selective law



        10         school, is that pretty well known as far as you



        11         know?



        12   A.    I think that it's fairly well-known that we have a



        13         very strong reputation as one of the best law



        14         schools in the country.  And I think applicants



        15         realize that, and then also realize that means that



        16         we probably are selective in our admissions process.



        17   Q.    And would you agree that two of the criteria, at



        18         least two of the criteria at which the law school is



        19         highly selective in making admission decisions, are



        20         the undergraduate grade point averages and the LSAT



        21         scores of applicants?



        22   A.    Yes, the academic record which includes the



        23         undergraduate GPA as well as private work that the



        24         applicant may have done, and a person's performance



        25         on the LSAT are important factors that we consider.











                          GRUTTER -v- BOLLINGER, ET AL.

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         1         If we're assessing an applicants potential to excel



         2         at the Law School.



         3   Q.    And in the analysis that you do taking a look at



         4         academic credential like the LSAT and the



         5         undergraduate grade point averages, is it fair to



         6         say that there is, first of all, there's sort of a



         7         threshold that you look at.



         8                        You want to be certain that if the



         9         credentials are established, at a minimum that an



        10         applicant could succeed as a student at the



        11         Law School?



        12   A.    Yes.  That we want to make sure that we don't offer



        13         admission, we try to avoid admitting somebody who we



        14         believe would have difficulty succeeding



        15         academically.



        16   Q.    That's kind of a minimum threshold, correct, because



        17         you have a lot of applicants that meet that



        18         threshold?



        19   A.    That's right.  We have a lot of people who would be



        20         qualified and who could perform the work.



        21   Q.    And certainly you don't admit every students who



        22         meet that threshold?



        23   A.    That's right.



        24   Q.    So, being qualified for admission is not the same



        25         thing as likely being granted admission?











                          GRUTTER -v- BOLLINGER, ET AL.

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         1   A.    Right.  There are many people who are qualified that



         2         we are not able to offer admission to.



         3   Q.    Would you agree with me that the index scores, the



         4         combinations of undergraduate grade point averages



         5         and LSAT scores underrepresented racial minority



         6         groups, African Americans, Hispanics, Native



         7         Americans, are generally at least somewhat lower



         8         than those of other racial groups, is that a true



         9         statement?



        10   A.    In our applicant pool and it's my experience with



        11         the various years that I've been doing this, so that



        12         I have seen the statistics for our applicant pool.



        13                        I think it is true that if you look



        14         at the whole applicant pool the average LSAT score



        15         is lower for the minority groups you mentioned, then



        16         for the average LSAT score of the Caucasian students



        17         in our pool.



        18   Q.    And lower than Asian American students as well



        19         generally?



        20   A.    I think generally Asian American students as a whole



        21         in our pool have had an average LSAT score that's



        22         comparable to the Caucasian students.



        23   Q.    And I think you were just referencing LSAT scores.



        24         Is that same generalization true with respect to



        25         undergraduate grade point averages?











                          GRUTTER -v- BOLLINGER, ET AL.

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         1   A.    I would have to look at the statistics.  I think



         2         that probably is true, I'm not sure that it's as



         3         much of a noticeable difference.



         4   Q.    We would see that in the Admissions statistics that



         5         is maintained in the Law School data base, correct?



         6   A.    Well, that data is in the data base.



         7   Q.    We can compare the undergraduate grade point



         8         averages of admitted members of certain minority



         9         groups to admitted members of other racial groups



        10         like Caucasians and Asian Americans?



        11   A.    Yes, you can pull that data out of the data base.



        12   Q.    Can I ask the witness to take a look at Exhibit 14,



        13         please.



        14                        Can I ask you whether you recognize



        15         Exhibit 14, a form of it at least?  I think I can



        16         represent what it is without any objection, but if



        17         you can tell me it might help?



        18   A.    I don't know if I have seen this particular document



        19         before, but it appears to be a chart showing



        20         information about the mean and median undergraduate



        21         GPA.



        22                        And the second page appears to be the



        23         mean and median LSAT score for students who enter



        24         the Law School apparently in 1994 and 1995.  It



        25         doesn't actually say the University of Michigan on











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         1         it anywhere.



         2   Q.    Well, I can represent it's a document that we



         3         received from the University of Michigan.



         4                        Do you participate in putting



         5         together admission data like this, or I should say



         6         admission data like this that sorts of show mean and



         7         median and GPA and LSAT scores for applicants and



         8         admitted students?



         9   A.    I don't believe I was involved in putting this



        10         report together.



        11   Q.    Every year there's a meeting with the Committee of



        12         Visitors.  Do you participate in those meetings?



        13   A.    The Committee of Visitors happens once a year, and I



        14         typically prepare it.  Since I have been the Dean of



        15         Admissions, I have prepared a report for the dean



        16         which I believe he has included in the report to the



        17         Committee of Visitors.



        18   Q.    And do you include information like that which is



        19         pertained here on Exhibit 14?



        20   A.    I don't believe that I have given this kind of



        21         information when I have done the report.



        22   Q.    You were in the Admissions Office in 1995, correct?



        23   A.    Yes.



        24   Q.    Do you remember at that time the Admissions Office



        25         reporting this kind of data?











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         1   A.    Yes.  Dean Shields would have done a report to the



         2         dean for inclusion with the Committee of Visitors



         3         report.



         4   Q.    And is it fair to say that, at least, what we have



         5         in front of us here is just two years, I guess.



         6         1995, the GPA data shows that there are generally



         7         differences in the average GPAs of the different



         8         racial groups with African Americans, Mexican



         9         Americans, Puerto Rican Americans having somewhat



        10         lower grade point averages than other racial groups



        11         like Caucasians and Asian Americans, fair statement?



        12   A.    Yes.  Fair statement that GPAs of the various ethnic



        13         groups vary a little bit.



        14   Q.    And that they're lesser for those groups obviously



        15         then Caucasians and Asian Americans, that's what the



        16         document reflects, correct?



        17   A.    Yes.



        18   Q.    And I'm turning to the next page of the same



        19         exhibit, this reports mean and median LSAT scores



        20         for the same racial groups, correct?



        21   A.    Yes.



        22   Q.    And this kind of data kind of again confirms, at



        23         least for this particular year I think statements



        24         you made earlier, that LSAT scores of several of



        25         these minority groups are generally lower than they











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                                                                              180

 











         1         are for other groups like Caucasian



         2   A.    Yes, in this particular group, yes.



         3   Q.