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.




                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     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  3

            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                    THURSDAY, JANUARY 18TH, 2001

            25



                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001

                                                                     2

             1             APPEARANCES:

             2

             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 Defendants.

            14

            15             COURT REPORTER:  Joan L. Morgan, CSR.

            16                               Official Court Reporter.

            17

            18

            19

            20

            21

            22

            23

            24

            25





                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     3

             1                            I  N  D  E  X

             2

             3             WITNESS:                             PAGE:

             4

             5   KINLEY LARNTZ

             6  Cross-Examination by Ms. Massie                   4

             7

             8  MOTION FOR PARTIAL JUDGMENT

             9  By Mr. Payton                                    41

            10

            11  LEE BOLLINGER

            12  Direct Examination by Mr. Payton                 51

            13   Cross-Examination by Mr. Kolbo                  69

            14

            15  RICHARD LEMPERT

            16  Direct Examination by Mr. Goldbatt               88

            17  Cross-Examination by Mr. Purdy                  159

            18

            19

            20

            21                          E   X    H   I   B   I   T   S

            22

            23                                   MARKED   RECEIVED.

            24  Trial Exhibit Number 34                    142

            25   Trial Exhibit 32                          159








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     4

             1                   Detroit, Michigan

             2                  Thursday, January 18th, 2001

             3                  (At or about 8:30 a.m.)

             4                        -- --- --

             5             THE COURT:  Good morning.

             6             MR. PAYTON:  Good morning, your Honor.

             7             MR. KOLBO:  Good morning.

             8             MS. MASSIE:  Good morning.

             9             THE COURT:  Okay.

            10             You may Cross-Examine the witness.

            11              K I N L E Y    L A R N T Z ,   P h. D. ,

            12  Having been previously called as a witness herein, and after

            13   having been first duly sworn to tell the truth, the whole

            14   truth and nothing but the truth was examined and testified as

            15   follows:

            16                    CROSS-EXAMINATION

            17  BY MS. MASSIE:

            18   Q    Good morning, Dr. Larntz.

            19   A    Good morning.

            20   Q    We had a chance to meet yesterday. My name is Miranda

            21  Massie, and I represent the student Intervenors in this as I

            22  think you already know.

            23   A    I understand.

            24   Q    I'm going to try hard not to reproduce too much of what

            25  happened yesterday, but I'm sure there will be a little of








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     5

             1  overlap and I'll ask you to bear with me.  I'm going to try to

             2  keep it to a minimum.

             3   A    Thank you.

             4   Q    As I understand it, your premise in conducting your

             5  analysis was to look at the role of race in admissions

             6  controlling for credentials.

             7   A    Yes.

             8   Q    Is that true?

             9   A    Yes, with specific graduals of LSAT and GPA, yes.

            10   Q    In all of your analyzes the box plots, the grafts, the

            11  different odds ratios were based on undergrad grade and LSAT;

            12  is that right?

            13   A    I mean those were the basic data we controlled for, and

            14  certainly the box plot and the displays were of those variables

            15  specifically.  Some of the analysis involves other variables.

            16  Those are always there.

            17   Q    Michigan residency was one of the other variables --

            18   A    Michigan residency, gender, fee waiver.

            19   Q    But the basic analysis involved the undergrad grades and

            20  LSAT.

            21   A    That's correct.

            22   Q    Your analysis showed that LSAT difference by racial

            23  groups were greater than GPA differences; is that right?

            24   A    I think if you specifically look at the box plot there's

            25  more separation in the box plot for the LSAT than for GPA,








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     6

             1  that's true.

             2   Q    And when you say there's more separation in the box plot

             3  is it not fair to say in lay terms that there's a bigger group

             4  difference?  Is that not --

             5   A    I was trying to say that's exactly -- there is.  There's

             6  a bigger group difference.

             7   Q    I'd like to look if I could mobilize George at Slide 28.

             8  What I'm going to ask you to do, Dr. Larntz, is to compare

             9  Slide 27 and Slide 28 from your presentation so we can see how

            10  the distribution of LSAT scores and grades by race is

            11  different.

            12             THE COURT:  Twenty-seven?

            13  BY MS. MASSIE:

            14   Q    Are you able to read that, sir?  Did I give --

            15   A    I can't read it, no.

            16             THE COURT:  I think there's a --

            17  BY MS. MASSIE:

            18   Q    Do you have Slide 27?

            19   A    Slide 27, I have it, yes.

            20   Q    Okay.  As you look at the two columns that have been

            21  highlighted it's true that there are more applicants who are

            22  black and more applicants who are white toward the top of those

            23  GPA scales; is that correct?

            24   A    Yes, that's correct.

            25   Q    If you could take a quick look at Slide 28.  I apologize.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     7

             1  I have to ask you to go back and forth a couple of times.

             2  There's a different pattern of distribution there; isn't there,

             3  in that the black students are more heavily concentrated in the

             4  lower end of the LSAT score when you keep their grades

             5  constant.

             6   A    Yes, that appears to be the case.

             7   Q    So in this range of GPA which was calculated by the law

             8  school Admissions counsel at 3.25 to 3.49 the white students

             9  are much heavily concentrated in the highest ranges of LSAT

            10  score, and the black students are much more concentrated in the

            11  lower ranges of LSAT score.

            12   A    That's certainly true.

            13   Q    In looking back now if you'll indulge me at slide 27,

            14  again, that's not true when you control for LSAT here,   I

            15  think we're looking at 161 to 163 on the LSAT the distribution

            16  of grades is roughly similar.  I'm not asking you to make

            17              detailed statistical judgment here, but it's

            18   roughly similar.

            19   A    Correct.  I agree, there's certainly much less separation

            20  in the grade distribution given the specific LSAT score, that's

            21  true.

            22   Q    And, in fact, regardless of the specific LSAT score and

            23  the aggregate whether you judge that by the median or the

            24  distribution the grades are a lot closer. There's still

            25  differences, but they're much closer than the LSAT scores;








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     8

             1  right?

             2   A    Well, they're closer -- I mean, much closer is a relative

             3  term.  I'm not sure how to describe it.  But they're certainly

             4  closer.

             5   Q    Fair enough.

             6             By the way, Dr. Larntz, the Asian Pacific Americans,

             7   the Asian American applicants had lower median LSAT scores and

             8   undergraduate grades; isn't that true?

             9   A    The applicants or the accepted applicants?

            10   Q    The applicants.

            11   A    The applicants, I'd have to go back and look at the

            12  specific -- lower than -- what group?

            13   Q    Than the white applicants.

            14   A    Than white applicants?  You're talking about the LSAT

            15  score?

            16   Q    I'm talking about both undergraduate grade and LSAT

            17  scores.

            18   A    I think there was -- my recollection, I can go back and

            19  look at the table is they were slightly lower, yes.

            20   Q    And you mentioned yesterday you looked at some of the

            21  application files.

            22   A    A few, yes.

            23   Q    Who were the students, not by name which I understand you

            24  didn't know, but were they rejected white students or were they

            25  accepted minority students?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     9

             1   A    I think I looked at -- you know, we're not talking about

             2  hundreds, we're talking about a small handful of both.  I mean,

             3  I looked -- I certainly -- and it's been some time, I haven't

             4  looked at them very recently. But I did look at some

             5  application files of rejected.  And I don't remember if they

             6  were white or Asian students, applicates, and accepted minority

             7  applicants, yes.

             8   Q    And why did you look at those?

             9   A    Why did I look at those?

            10   Q    Yes.

            11   A    To get an idea of what the files looked like.  I think it

            12  was useful to look at what the raw data are that the law school

            13  summarized -- where it came from.

            14   Q    But looking at the files didn't change your statistical

            15  analysis at all.

            16   A    Well, most of my analysis was done by the time those

            17  files were available to look at.

            18             So I didn't find information in those files that I

            19   could use quantitatively to change my -- that would change my

            20   analysis, that's correct.

            21   Q    Did you find information that raised any questions for

            22  you about your analysis?

            23   A    Raised questions?

            24   Q    Yes.

            25   A    No.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     10

             1   Q    And that's because your analysis is focused on the

             2  question of the role of race, controlling for numerical

             3  credentials; right?

             4   A    That's exactly what we're doing, yes.

             5   Q    And that's why looking at the files didn't change your

             6  view?

             7   A    I mean, if there had been quantitative information that I

             8  could found in the files, a variable that I would then have in

             9  the data base then I could have used that.  I didn't find such

            10  a quantitative information that would be available to me across

            11  all applicants.

            12   Q    Okay.  The group differences in both grades and LSAT

            13  scores that were part of your findings, are greater among the

            14  applicants as a whole than they are among the accepted

            15  applicants; isn't that true?

            16   A    I believe that's true, yes.

            17   Q    So in other words, the admissions process at the law

            18  school reduces the size of the gap in both LSAT scores and

            19  grades by race.

            20   A    That's true, yes.

            21   Q    And results if you look at the selected admitted

            22  under-represented minority students, the Black, Latinos, the

            23  Asian American students, it results in the selection of a group

            24  of minority students who have relatively higher grades, higher

            25  grades relative to white students.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     11

             1   A    I don't understand the comparison you're asking me to

             2  do.

             3   Q    The pool of people who -- the pool that consists of all

             4  of those who apply --

             5   A    Yes.

             6   Q    -- is reduced through the application process --

             7   A    I understand that.

             8   Q    I'm not -- definitely suggesting that you don't.  I'm not

             9  sure that I'm being clear.  And a bunch of people are

            10  rejected.

            11   A    Quite a few.

            12   Q    And what you end up with in -- if you're comparing the

            13  group by race in terms of numerical credentials is less of a

            14  spread, less of a gap.

            15   A    There's still a gap, but the gap isn't as large as the

            16  applicants who presented themselves to the law school for

            17  admission, that's true.  The accepted applicants have a

            18  somewhat smaller gap in numerical terms compared to the group

            19  of applicants presented as a whole.  Okay, but I think I've

            20  answered, and that's true.

            21   Q    So the admission process results in a selection of

            22  minority students who relatively speaking have higher numerical

            23  credentials than the applicant pool.

            24   A    I guess I've never made the comparison to the entire --

            25  if I understand what you're asking me to do, are the minority








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     12

             1  students who are accepted higher than the entire applicant pool

             2  as a whole.

             3   Q    I'm sorry, then that's definitely not what I'm saying.

             4   A    Okay.

             5   Q    The gap is reduced.

             6   A    It would -- well, I guess I should let you ask the

             7  question.

             8   Q    The gap is reduced.

             9   A    Yes.

            10   Q    You haven't previously testified as an expert or worked

            11  as a consultant as I understand it on admissions in higher

            12  ed.

            13   A    That's correct.

            14   Q    Or on any question involving race and higher

            15  education.

            16   A    Race and higher education?

            17   Q    Yes.

            18   A    I'm trying to recall the issues.  I have testified in

            19  cases involving higher education hiring.  And I -- no, I don't

            20  believe then -- I'm sorry, I'm just trying to recall.

            21             I believe that particular case involved gender

            22   equity and did not involve -- it did not involve race issue.

            23   So, I have not.  Sorry.

            24   Q    And you don't have any expertise on standardized testing

            25  issues.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     13

             1   A    Expertise on standardized testing issues in what

             2  sense?

             3   Q    You haven't made a study of standardized testing.

             4   A    I've never made a study myself of standardized testing,

             5  that's true.

             6   Q    Do you consider yourself to have any expertise in the

             7  area of bias, racial bias in standardized testing?

             8   A    That's not an area I've studied.

             9   Q    Do you consider yourself to have any expertise in the

            10  area of educational sociology?

            11   A    Educational sociology --

            12   Q    Well --

            13   A    I assume -- well, let me just say it since I probably

            14  don't understand what the term means, I probably don't have any

            15  expertise.

            16   Q    Do you have any expertise in your view on the role of

            17  hostile environment or racism on academic performance?

            18   A    I have certainly read materials on that, but that's not

            19  my -- I've read it as a lay person, not as -- have no level of

            20  expertise in that.

            21   Q    So you're not an expert on that?

            22   A    I'm not an expert on that, that's true.

            23   Q    And in analyzing the data for this case, you didn't rely

            24  on anybody else's expertise in those areas; true?

            25   A    I'll just say, yes, since I didn't rely on anybody








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     14

             1  else.

             2   Q    And you weren't asked to.

             3   A    Look at --

             4   Q    The attorneys didn't ask you to rely on anybody else's

             5  expertise or to carry out any studies of your own on testing or

             6  grades and the environmental impact?

             7   A    No.

             8   Q    I know you know where I'm going, but --

             9   A    I'm not --

            10   Q    People talk over each other all the time.

            11   A    I'm sorry.

            12   Q    It's hard when you look at the transcript later.

            13             The role of the environment  -- the

            14   environmental impact impacted by racism on grades or tests or

            15   anything like that, you weren't asked to look at any of that;

            16   is that true?

            17   A    That's true.

            18   Q    I'm going to ask you this way of conceptualizing the

            19  cause of the odds ratios, the magnitude of the odds ratios

            20  that you calculated seems true to you, and that is this:

            21  That there are essentially three necessary components to the

            22  magnitude of those ratios.  And tell me if this is wrong after

            23  I list them.  First, there's the important of the LSAT and the

            24  GPA in determining admissions decisions.  Second, there's the

            25  uneven distribution by a race of applicants within the grid








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     15

             1  that has LSAT scores on one axis and GPA on the other.  And

             2  then, third, there's allowance that you talked about

             3  yesterday which is to say the  decision to admit some

             4  relatively substantial number of black and other minority

             5  students.  So in other words the three components:

             6  First, importance of LSAT and GPA.  Second, uneven

             7  distribution on the numerical within the grid that

             8  summarizes the numerical criteria.  And, third, to look

             9  at it either way it seems to me the allowance, to use your

            10  term that the University makes, which is to say the

            11  decision to admit more than token number of minority

            12  students.  Are those the three necessary and sufficient

            13  components that gives you the odds ratios that you ended up

            14  calculating?

            15   A    Before I give my answer, I'm saying "necessary" and

            16  "sufficient" are mathematic terms, very precise ones.

            17  You have to be very careful.  But I -- let me say that the

            18  three components -- you correct me if I've got them wrong,

            19  okay -- are -- Number one is unequal distribution -- the

            20  fact that there's -- admission is based on the LSAT and

            21  GPA?

            22   Q    Right.

            23   A    Okay.  Number two, is the distribution -- distributional

            24  differences of those quantities.

            25   Q    Correct.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     16

             1   A    And number three is the decisions made, the allowance

             2  made for those individual cells.

             3             My analysis doesn't depend on -- doesn't actually

             4   depend on the -- if we want to be in a real sense -- it

             5   doesn't depend on LSAT and GPA being a big factor.

             6             It accounts for whatever it is.  It could be a

             7   big factor.  It could be a small factor.  So that doesn't

             8   matter except that it is obviously a big factor.  So that

             9   we take out that effect whatever that is so the analysis

            10   takes out that effect because we're looking at each cell

            11   separately.

            12             So it could be not as big effect or small effect,

            13   and we can still do the same analysis.

            14   Q    I understand.  Can I stop you because I think I haven't

            15  been clear.

            16   A    Okay.

            17   Q    I'm not asking you whether you could do the same

            18  analysis.  I'm asking you whether the results you got are a

            19  consequence of these three --

            20   A    And I'm trying to answer that question.

            21   Q    I'm sorry.  Please proceed.

            22   A    And so thus -- so, thus, the results I get don't depend

            23  on that characteristic.

            24             THE COURT:  That characteristic being the GPA,

            25   LSAT?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     17

             1             THE WITNESS:  It depends on the fact that we're

             2   looking at individual cells.  But it doesn't depend on the

             3   fact that there's a particular pattern of acceptance in GPA

             4   and LSAT which is what I understood was the premise.

             5   A    So it doesn't depend on that, per se.

             6             And, again, because we're looking at the

             7   individual cell, and we're comparing individual applicants

             8   that have the same credentials, it doesn't depend on -- to

             9   the second point, the distribution of those credentials,

            10   we're looking specifically at what those credentials are in

            11   a particular cell and how an individual in those particular

            12   cells. So the analysis actually doesn't depend on the

            13   distribution which I think is your second point of

            14   credentials.

            15  BY MS. MASSIE:

            16   Q    Yes.

            17   A    The analysis particularly depends on what happens to

            18  individual applicants in the same category of LSAT and GPA.

            19  And that's what -- I think the third item you said, the

            20  allowance that's made.  And that what it specifically

            21  reports is the degree of allowance given in those

            22  individual cells.  And so that's what it specifically

            23  depends on.

            24             So it could be -- it would be if, in fact, there

            25   were other distributions either -- in how the University took








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     18

             1   account of those of values or how the applicants are rated it

             2   wouldn't depend on that.  It would depend on the specific,

             3   what happened to those specific cells.

             4   Q    Okay.  And you're talking by the cell-by-cell odds ratio

             5  now.

             6   A    Well, I'm talking about the grids, what happens in the

             7  grids.

             8   Q    But the overall odds ratio --

             9   A    Is the combination of what happens in the individual

            10  grid, cell-by-cell.

            11   Q    If the -- you would get different numbers if people were

            12  distributed differently by race within that grid; true?  Your

            13  odds ratios would be different.  All other things being equal,

            14  your odds ratios would be different if people were distributed

            15  -- let's say if it was distributed proportionately by race

            16  within all the different squares in the grid, you would get an

            17  odds ratio of one; true?

            18   A    There's two things going on here.  What you just said

            19  certainly is not true in the sense of distributing.

            20   Q    Why not?

            21   A    What I was trying -- what I want to explain is you've got

            22  three or four things changing at once.  So let me just change

            23  one thing if I might.

            24   Q    All right.

            25   A    Okay.  If, in fact, if, in fact, the distribution changed








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     19

             1  of minority students in the cells in the sense that there were

             2  more applicants, if there were more applicants in other cells

             3  than we have, so the distribution changes.  So they're in some

             4  cells -- well, yesterday we had a cell where there were eight

             5  minority applicants and four were admitted, okay?  If we change

             6  that to -- if we want to do that proportionately -- I think

             7  this is what -- I would want to do it proportionately, you had

             8  sixteen applicants and eight were admitted.  It's exactly the

             9  same proportions.

            10             But we move the distribution around, that is, there

            11   are more minority applicants in the various cells, okay, then

            12   the odds ratios for each of those cells, the odds ratios for

            13   each of those cells would remain identical to what they are

            14   now.  Identical.  They wouldn't change whatsoever.

            15             So -- if, in fact, the decisions were still made in

            16   the same way, but there are more minority applicants in

            17   certain cells, but the actual admitted and accepted ratios

            18   stayed the same in a cell, then the odds ratios for those

            19   cells stay exactly the same.

            20             That's mathematics.  You can calculate them.  They

            21   stay exactly the same.

            22   Q    Okay.  My question was this:  If you were to just take

            23  the grid overall and distribute -- let's take black students

            24  and white students for the time being.  Black students and

            25  white students in a proportionate way so that you wouldn't have








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     20

             1  what we just looked at in Slide 27.  So that if one percent of

             2  the white students were in that, you know, top upper right-hand

             3  corner cell, one percent of the black students were there, too

             4  --

             5   A    Sure.

             6   Q    And so on.

             7   A    Sure.

             8   Q    You would end up -- all other things being equal --

             9  admissions decisions being made the same way as far as LSAT and

            10  GPA go with an odds ratio of one; correct?

            11   A    If I -- I still -- I don't think we're -- I'm not

            12  communicating well enough for you to understand that, in fact,

            13  if the decisions are made in the same way, which means the same

            14  proportion of black students are admitted as in the grid cells

            15  now, if that doesn't change, but there are more -- you say

            16  equal numbers of white students and black students in those

            17  cells, but the decisions made in those cells -- the decision

            18  made in those cells are proportional to what they are now then

            19  the odds ratio would stay the same that they are now.

            20             If the -- the way they would get to be one, the way

            21   they would get to be one is if we had -- if the admission

            22   rates were the same for white students and black students in

            23   the individual cells, so if the admission rates were the same

            24   -- so, for instance, in the cell we talked about with respect

            25   to minority students, suppose there were a hundred minority








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     21

             1   students in that cell, and fifty were admitted, that would be

             2   an admission rate of fifty percent.

             3   Q    Sure.

             4   A    If there were a hundred black students -- I mean, white

             5  students in that cell, so a hundred minority students and a

             6  hundred majority students then in order to get an odds ratio of

             7  one, they would also have to have to have an admissions rate of

             8  fifty.  That would be an odds ratio of one.

             9             So if the admission rates are the same in a cell,

            10   admission rates are the same in the cell, then you have an

            11   odds ratio of one.

            12             So -- if we had that throughout the entire grid then

            13   the overall odds ratio would be one.

            14   Q    Right.  So what I'm saying is -- and this is back to the

            15  three components is the disproportionate -- let's say the

            16  uneven distribution in the grid and the allowance work in a

            17  lockstaff (ph); right?

            18   A    What I just said is what it depends on is the admissions

            19  decisions made in the cell which is the allowance.   And the

            20  odds ratio doesn't depend on the unequal distribution.  It

            21  depends on what happens in the individual cells.  So if, in

            22  fact, in the individual cells there are equal admission rates,

            23  that's an odd ratio of one. It doesn't matter where they are,

            24  or what the distribution is.  The odds ratios are computed from

            25  what happens in the individual cells without regard to the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     22

             1  distribution of the minority and majority students in those

             2  cells.

             3   Q    Dr. Larntz, what's going on in an individual cell depends

             4  on the distribution; right, because the distribution is

             5  precisely whose in what cell.

             6   A    What happens in each cell depends on the decisions made

             7  in that cell.  And the decision, the admission rate decisions

             8  in that cell are what drive the odds ratio.

             9             So what happens is the admissions decision in that

            10   cell and those admissions decisions are what determine the

            11   odds ratios.

            12             THE COURT:  The bottom number.

            13             THE WITNESS:  The relative number.  So if it's four

            14   out of eight, and if it were fifty out of a hundred, that

            15   would be an odds ratio of one.

            16             THE COURT:  And the bottom number in your cell.

            17             THE WITNESS:  Right.

            18             THE COURT:  Which is the University's decision.  The

            19   odds --

            20             THE WITNESS:  That's the allowance.

            21             THE COURT:  When I say the "bottom number" I'm

            22   looking at the cell.

            23             THE WITNESS:  Exactly.  That depends on the relevant

            24   size of the bottom number to the number above.

            25             THE COURT:  The bottom number is the University's








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     23

             1   decision.

             2             THE WITNESS:  That's correct.  That's correct.

             3  BY MS. MASSIE:

             4   Q    It's the bottom number in relation to the number of

             5  applicants of a given race in that cell.

             6   A    Of course.  It's a proportion, the proportion admitted in

             7  that cell by the University.

             8             If the proportions admitted are the same then we

             9   have an odds ratio of one.  The same for minority and

            10   majority, we have a odds ratio of one.

            11   Q    Thank you.

            12             Now, what would the law school have to do to avoid

            13   those infinities if -- let's say the applicant pool doesn't

            14   change at all.  What would they have to do to avoid those

            15   cells where they find there's an infinite odds ratio?

            16   A    What would they have to do?  I mean, the infinite odds

            17  ratio -- I mean, from my point of view the infinite one just

            18  indicates there's a big number there.  You know, in the sense

            19  there may be a large allowance there.

            20             But, two things:  Actually -- we would not get to

            21   infinity if -- the case we get infinity are two.  Number one,

            22   where a hundred percent of minority applicants are accepted,

            23   or where we have zero percent of majority applicants accepted.

            24   Either of those cases we get an infinity.

            25             And so, if it were important and I don't think it is








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     24

             1   important to eliminate those because -- if they're small

             2   numbers and those numbers don't matter in a statistical sense,

             3   but if they're important for someone to eliminate those, if it

             4   were, then you'd have to have less than a hundred percent

             5   admission of minorities or combined with a greater than zero

             6   percent admission of majority students.

             7   Q    Not combined with it, it's an alternative; right?

             8   A    No, it actually -- actually to get -- as it was talked

             9  about yesterday a calculated number, to get a calculated

            10  number, you would have to have both -- for both minority and

            11  majority, you'd have to have some admitted and some denied to

            12  get a calculated number, a number other than zero or infinity

            13  to get to -- in order to get -- to avoid infinity, you would

            14  have to have some admitted and some denied --

            15   Q    Some minority students admitted --

            16   A    And some -- and then some denied.  And then some majority

            17  students admitted and some denied if that were an important --

            18  if that were important.

            19   Q    I see.  So -- in the cells where you have one to two, or

            20  one Native American or black applicant with top LSAT scores and

            21  top grades, you would have to reject one of those two people to

            22  avoid having an infinite odds ratio; is that correct?

            23   A    In order to avoid seeing -- as I say, if that were

            24  important to you not see that -- I don't think -- to me that is

            25  of no consequence statistically.   And I certainly -- I'm








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     25

             1  telling you how to mathematically generate a calculated number

             2  there as oppose to having an infinity.  And that's how I would

             3  do it.  That's how it would have to be.

             4   Q    Do you think there's anything misleading about saying

             5  that an odds ratio is infinite in a square where there are two

             6  black applicants both of whom get accepted?

             7   A    Do I think it's misleading?  I think I said that I don't

             8  that I don't believe that real odds ratio is infinity.  I don't

             9  believe any of these are infinity.  I think it's the observed

            10  values infinity.  That's just a number in my estimation or

            11  maybe not a number if you're a real mathematician talking in

            12  mathematical terms, but it just describes the information in

            13  the cell.  And that's all it does.

            14   Q    Infinity is it an imaginary number or an irrational, I

            15  always forget.

            16   A    You'll have to call a mathematical expert.

            17   Q    Okay.  You knew, Dr. Larntz, that a smaller percentage of

            18  minority applicants than white applicants were accepted by the

            19  law school; right?

            20   A    I think we went through that yesterday.  That seems to be

            21  the case, yes.

            22   Q    And you knew that at the same time that you were making

            23  your calculations you were aware of that; true?

            24   A    I was aware of that?  Yes, I had -- I looked at the

            25  original grid and that was -- we could see that in at least the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     26

             1  original Exhibit 16, yes.

             2   Q    So, yes, you knew that a larger percentage of minority

             3  applicants was accepted.

             4   A    Yes.

             5   Q    I just want to make sure that we're clear.

             6             And you know that there's a relatively small number

             7   of Black, Latino and Native American students accepted.

             8   A    A relatively small number, you mean in terms of numerical

             9  values.

            10   Q    Yes.

            11   A    The number accepted is the number accepted.  I don't know

            12  if that's relatively small or not.  It's not as many as there

            13  are Caucasian students admitted for instance.

            14   Q    It's small proportion.  It's a relatively small

            15  proportion.

            16   A    Certainly -- the number of applicants is smaller and the

            17  number admitted is smaller.

            18   Q    And that difference grows.  It's smaller by a greater

            19  degree. The number accepted -- the number of minority students

            20  accepted is smaller by a greater degree than the number of

            21  minority students who apply is.

            22             The proportion -- let's take two numbers.  You've

            23   got the people who applied, and the people who are accepted.

            24   The proportion of minority students in the group of people who

            25   applied is bigger than the proportion of minority students in








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     27

             1   the group of people who are accepted.

             2   A    Given that there's at least a slightly smaller rate,

             3  there is smaller rate of acceptance, that would be true.

             4   Q    And I think you said a couple of times yesterday that

             5  these were among the biggest odds ratios that you had ever

             6  seen.

             7   A    The odds ratio, oh, absolutely, absolutely.

             8   Q    Did it ever occur to you that there was a disconnect

             9  between the results that you were getting and the reality of

            10  the admissions process?

            11             MR. KOLBO:  Object to form, your Honor.

            12             THE COURT:  Why don't you rephrase it?

            13  BY MS. MASSIE:

            14   Q    Did it ever occur to you given what you knew about rates

            15  of admittance, given what you knew about the overall number of

            16  minority students who applied, given the things we've just been

            17  through, and given the values, the magnitude of the odds ratios

            18  your analysis produced, did it ever occur to you that there was

            19  something wrong with your motive analysis?

            20   A    Absolutely not because this happens often in statistical

            21  analysis that because difference in marginal distributions you

            22  wind with up -- what you control for important factors in the

            23  admission decision.  What you control for important factors in

            24  admission decision, your studying the effect in those

            25  individual cells. And that effect in those individual cells








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     28

             1  won't necessarily produce a particular bottom line percentage

             2  or another.  So there is no disconnect -- sorry to rephrase

             3  your original, there is no -- there's wrong with it at all.  In

             4  any statistical sense this is not an unusual happening in

             5  statistical analysis once you control for other important

             6  factors.

             7   Q    This is not an unusual happening. What's the "this"?

             8   A    This, what you just said that we have a -- I'll call it

             9  an overall rate that may be smaller in one direction but

            10  considerable preference might be given or odds ratio in favor

            11  of the events that has the small overall rate.  That in a

            12  statistical sense is something that depends on what happens in

            13  the individual cells.  And in the individual cells it's clear

            14  that a large allowance is made in the admissions process for

            15  students -- for minority students compared to majority students

            16  that have the same LSAT and GPA credentials.

            17   Q    In light of the magnitude, the odds ratios that you found

            18  to obtain and in light of the other information we've talked

            19  about, did it occur to you at some point that the model wasn't

            20  useful?

            21   A    I think this model is quite useful.  That certainly never

            22  occurred to me, no.

            23   Q    That did not occur to you.

            24   A    No.

            25   Q    Did it occur to you at any point that there was something








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     29

             1  behind the face of the data, something behind the LSAT scores

             2  and the undergrad grades that you ought to look into more?

             3   A    The LSAT and the GPA were the specified criteria the law

             4  school used in its admissions process, and I used those

             5  criteria.  Something behind those?  I don't that was -- I was

             6  trying to model -- right term -- look at, understand, describe

             7  the law school's decisions based on those credentials, and

             8  that's what I did. And I didn't look at anything behind those.

             9  "Those" being the grades and the LSAT's.

            10   Q    And you don't know what the source of the group

            11  difference is; right?

            12   A    No.

            13   Q    In the numerical criteria.

            14   A    Source of the group differences in GPA's and LSAT's?

            15   Q    Correct.

            16   A    No.

            17   Q    And you don't know whatever that source is whether it's

            18  fair or reasonable.

            19   A    No, I don't know.

            20   Q    And you don't have any reason for believing that those

            21  numbers mean something constant across different ratio

            22  categories; correct?

            23   A    I'm sorry, I lost the question.

            24   Q    You don't have any basis for thinking that the meaning of

            25  a GPA or the meaning of an LSAT score, whatever that meaning








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     30

             1  is, could be, you know, something very solid or less solid, but

             2  that that meaning is constant across different racial

             3  categories.

             4   A    I don't have any knowledge about that, no.

             5   Q    And the unevenness of the distribution didn't make you

             6  wonder?

             7   A    Didn't make me wonder about that?  No.

             8   Q    So you didn't wonder about either the data or the model

             9  at any point.

            10   A    I think that's a much simplified view of what I did.  I

            11  certainly worried about the data.  And I worried very much

            12  about the data, and I cared a lot of about -- describing the

            13  admissions decisions based on the credentials that were

            14  presented, the LSAT, the GPA, and I did that.  And the model I

            15  did was as general a model I could get with as few assumptions

            16  that I could make to describe that process.  And I think you

            17  did a good job describing that process.

            18   Q    If you really wanted to get at the role of race in the

            19  admissions decisions wouldn't you have to know what the odds

            20  were of getting a certain LSAT score by race?

            21   A    That's not the way the Admissions Office was working in

            22  the sense that they look at given scores and made admissions

            23  decisions.  And what I was modeling was the admissions

            24  decision.  So I modeled the admissions decisions given the

            25  presented LSAT score and GPA.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     31

             1   Q    Yes.

             2   A    And if you -- well, that's what I did.

             3   Q    But you are looking at the role of race in admissions;

             4  right?

             5   A    I think I -- that's what I said, yes.

             6   Q    Okay. And to know what the role of race in admissions is

             7  -- go ahead.

             8   A    I was going to say, in admissions decisions.  In the

             9  admit or deny decisions that are made, that's right, as

            10  described -- I'm analyzing the data of the decisions made by

            11  the Admissions Office.

            12   Q    And your basis for knowing how decisions of made was the

            13  policy that you mentioned yesterday.

            14   A    Certainly I read that.

            15   Q    And the data base.

            16   A    And the data base was what I considered most informative

            17  because it isn't always true that -- should I say -- not

            18  everyone follows every policy that exists at a university.

            19             So I used the data itself to inform me about the

            20   nature of the decision made.

            21   Q    And the distribution differences by race didn't trouble

            22  you when came up with those odds ratios at the end of your

            23  analysis?

            24             MR. KOLBO:  Objection.  Asked and answered, your

            25   Honor.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     32

             1             THE COURT:  It's already been asked and answered,

             2   but you can do it one more time.

             3   A    It didn't trouble me, no.

             4  BY MS. MASSIE:

             5   Q    You do work in medical statistics if I understood you

             6  yesterday?

             7   A    I do work in a variety of areas and I do work in medical

             8  statistics, yes.

             9   Q    I want to give you a hypothetical because I want to

            10  understand how -- what kinds of things would make a

            11  statistician reconsider a model or try to look beyond the face,

            12  the facial values of data used in a model in the presence of

            13  odd results, let's say.

            14             Let's say you're looking at two hospitals.  Let's

            15   say they're in different neighborhood.  One's in a more

            16   affluent neighborhood and one's in a more poorer neighborhood,

            17   and you're testing the effectiveness of a drug.  You've been

            18   asked to test the effectiveness of the drug, what are the cure

            19   rates essentially.

            20             And let's say in the hospital that's in the poorer

            21   neighborhood you get a cure rate of sixty percent, and in the

            22   hospital that's in the more affluent neighborhood you have a

            23   recovery rate of ninety percent with whatever drug or therapy

            24   we're talking about.

            25             Wouldn't you want to look behind those numbers to








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     33

             1   find out if the poorer hospital was built on a toxic dump or

             2   if there were environmental poisons that were impeding the

             3   rate of cure, of it there were other environmental factors

             4   that were creating what I think would be a pretty big odds

             5   ratio in that case between sixty percent and ninety percent?

             6   A    I understand your hypothetical example, and if I could

             7  just carry it the way we actually do it, would that be all

             8  right?  In looking like data like that we typically would have

             9  for a new drug the new drug and the old drug used in both

            10  hospitals.  That's how we do a study.

            11             If we did that then, in fact, we would know very

            12   strongly that hospital cure rates no matter therapy, may

            13   differ.  We would know that.

            14             And we know they differ by hospitals. It's kind of

            15   disconcerting that they differ by hospitals.  Certainly in the

            16   press that hospital cure rates differ considerably by

            17   institution.  And what we as statisticians to understand the

            18   effect of the new drug is that we do exactly what I did here.

            19   We compare the new drug in the hospital that has the high cure

            20   rate, say.  And we compare the new drug to old drug in the

            21   hospital that has low cure rate.  And we combine the

            22   information in exactly the same way I did here.

            23             Exactly the same way knowing that there would an

            24   underlying -- could be and probably is an underlying

            25   difference in the cure rates.  So your example in the medical








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     34

             1   field is exactly what we would do. We compare, we combine the

             2   odds ratios exactly the same way to here.

             3             Having different underlying cure rates with two

             4   hospitals is in my estimation, my statistical expertise, my

             5   statistical -- I know those exist.

             6             Now to understand the effect of the new drug I have

             7   to make sure I control for that, and exactly the same way I

             8   control for here, exactly the same statistical method,

             9   exactly.  There's nothing different about it.

            10             And we take as given that there will be these

            11   differences in cure rates by hospital.  And we then control

            12   for them in our final analysis of putting the odds ratios

            13   together, how good this drug is.

            14             So that's the kind of analysis that we would do in

            15   the example for looking at a new drug, exactly the same

            16   analysis we're doing here.  And for exactly the reasons, for

            17   exactly the reasons that you provided that there may be

            18   differences of the underlying rates by hospital.

            19   Q    I'm actually not asking you to compare and -- this may

            20  make the hypothetical less realistic so I apologize -- I'm not

            21  asking you to compare a new medicine and an old medicine, I'm

            22  saying you have these different rates of cure.

            23   A    That's a different issue --

            24   Q    And they're substantially --

            25   A    It's a different problem.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     35

             1   Q    Yes.

             2   A    Totally different problem.  It's not an analogous at all

             3  to what we're doing here, okay?  But if you're interested in

             4  studying the underlying causes of the difference in cure rates

             5  by hospital, then we need to do a study and find out what goes

             6  on in the various hospitals and collect variables about

             7  hospitals, and then relate those variables of the hospital to

             8  the cure rates to the hospital.  It's a different kind of

             9  study.  And that's the kind of study that is being done to

            10  indicate quality of hospital institutions, for instance.

            11   Q    My question to you though would you ask the question?

            12  You'd be interested in the question of why there was this

            13             Big difference; right?

            14   A    What I would do is I would try to find people who would

            15  tell me about variables that would -- like on the issue I was

            16  discussing, if our instant issue of differences among hospitals

            17  then I would want to be informed about the variables that might

            18  help me to understand those difference in cure rates, yes.

            19   Q    Because those differences are disconcerting.  I think I'm

            20  quoting you.

            21   A    Difference -- did I say it just now?

            22   Q    Yes.

            23   A    The differences are disconcerting.  Well, I mean,

            24  disconcerting in the sense of statistically you want to look at

            25  what causes the difference.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     36

             1   Q    You want to find out what's going on.

             2   A    If I were focusing on the questions of why there are

             3  different cure rates in hospitals, then I would want to find

             4  out what's going on, that's right.  That's a separate issue.

             5   Q    You wouldn't stop treating the people in the hospital

             6  that was built on a toxic waste dump; right?

             7   A    Would I?

             8   Q    Yes.

             9   A    Would I think that?  No, I think there are underlying

            10  factors that could easily explain differences such as you said.

            11  There certainly could be underlying factors, yes.

            12   Q    You don't have any basis for saying that the admissions

            13  system at U of M Law School is unfair to white applicants;

            14  right?

            15             MR. KOLBO:  Object to form, your Honor.

            16             THE COURT:  Sustained.

            17  BY MS. MASSIE:

            18   Q    Since you don't know what's behind the criteria that

            19  forms the basis for your analysis, you don't have any opinion

            20  on whether the admissions system at the law school is unfair to

            21  white applicants; do you?

            22   A    My analysis in forms of what admissions decisions of the

            23  law school, with respect to how decisions are made, with

            24  respect to undergraduate grade point averages, and LSAT's.  So

            25  that's what my analysis shows.  And it shows how individuals








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     37

             1  with similar credentials are treated.

             2   Q    So the answer --

             3   A    And thus, and thus, as there are factors that would drive

             4  LSAT and GPA if that's -- then I don't have information about

             5  those other factors, that's right.

             6   Q    And those factors would be necessary for making a global

             7  statement about the fairness of the system; true?

             8             MR. KOLBO:  Object to form, your Honor.

             9             THE COURT:  If he has an answer, he can answer.

            10  BY MS. MASSIE:

            11   Q    Do you have an opinion on that?

            12   A    Fairness in a statistical sense would say are -- into

            13  similar credentials treated similarly.  In statistical

            14  standards that's what I could measure, and that's what I've

            15  done.

            16   Q    And you're assuming that a similar credential is the same

            17  number for a Black person, as for a Native American person, as

            18  for a White person, and so on.  That's what you're assuming

            19  when you make --

            20   A    The credentials presented with -- individuals with the

            21  same credentials means the same thing for -- that's certainly

            22  -- that's certainly -- those statistical were made for people

            23  with similar credentials.  We're comparing individuals with

            24  similar credentials.

            25   Q    You take the credentials, the numbers on the face of








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     38

             1  them, and you stop there.

             2   A    I use those numbers to look at the admissions decisions,

             3  that's absolutely right.

             4   Q    So you don't have any basis for saying there's a double

             5  standard in admissions at the law school.

             6   A    Well, there certainly is a double standard with respect

             7  to how they treat individuals, with respect to similar

             8  credentials, that is, grade point average and LSAT.

             9             They certainly treat individuals with similar LSAT

            10   and GPA differently.

            11   Q    Okay.

            12   A    There's no question about that.

            13   Q    And if those measures, if undergrad grades and LSAT

            14  scores are systematically biased, measures of credentials, they

            15  cannot be used as a yardstick of the extent to which race is a

            16  part of the admissions program; correct?

            17             MR. KOLBO:  Object to foundation, your Honor.

            18             THE COURT:  Sustained.

            19             MS. MASSIE:  Judge, we're going to be -- our whole

            20   case is going to be showing that these measures are

            21   systematically biased so could I ask the question --

            22             THE COURT:  That may be true, except he's not here

            23   as an expert in that area.  I mean, he's already testified and

            24   told you just now that he just took the figures.

            25  BY MS. MASSIE:








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     39

             1   Q    But hypothetically, if they are systematically biased

             2  then that means they can't be used to measure the extent to

             3  which race is used in admissions; correct?

             4             MR. KOLBO:  Same objection, your Honor.

             5             THE COURT:  Sustained.  I understand what you're

             6   going to try to prove during this trial, but you can't do it

             7   through this witness.  He doesn't have any expertise in this

             8   area.

             9  BY MS. MASSIE:

            10   Q    Your conclusion that there's a double standard in

            11  admissions turns on the presumption that there is not a

            12  systematic bias in GPA and LSAT; correct?

            13   A    I don't think so.  My -- the admissions decisions are

            14  made from LSAT and GPA scores.  And it's clearly the -- it's

            15  clear from the data that admissions offices -- that admissions

            16  office is using those scores for both minority and majority

            17  students.  It's clear they are.  And it's clear that they make

            18  decisions with a large allowance made for minority students

            19  with the same LSAT scores, GPA as majority students.

            20   Q    And you don't know whether allowance, to use your term,

            21  makes the program, the admissions program overall more or less

            22  fair and equal; right?

            23             MR. KOLBO:  Object to the form, your Honor.

            24             THE COURT:  Sustained.  Plus, I'm not sure exactly

            25   what you're asking.  Why don't you rephrase it?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     40

             1  BY MS. MASSIE:

             2   Q    You don't have an opinion about the overall fairness of

             3  the admissions system.

             4             THE COURT:  Other than that which you've already

             5   given.

             6   A    Other than -- I mean, I've already testified of where I

             7  think there's a large allowance.  That's what I testified to

             8  and that's my opinion.

             9             MS. MASSIE:  I don't have anything else.

            10             THE COURT:  Plaintiff, anything you wish?

            11             MR. KOLBO:  We have nothing, your Honor.

            12             THE COURT:  Very well.  Doctor, you've made your

            13   plane.

            14             THE WITNESS:  Thank you, very much.

            15             THE COURT:  Thank you, very much. We appreciate it.

            16   Plaintiff?

            17             MR. KOLBO:  Your Honor, we have nothing further at

            18   this time.  We have some deposition designations and so forth.

            19   The parties have talked about just submitting those to the

            20   Court --

            21             THE COURT:  Yes.

            22             MR. KOLBO:  -- for trial.  There will be exhibits

            23   with those as well and so forth.  We have nothing further at

            24   this time.

            25             THE COURT:  Very well.  Subject to the Plaintiff








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     41

             1   being able to designate certain portions of depositions and

             2   exhibits, the Plaintiff rests; is that correct?

             3             MR. KOLBO:  Yes.

             4             THE COURT:  Mr. Payton?

             5             MR. PAYTON:  Your Honor, this happened a little bit

             6   more quickly than I expected.

             7             THE COURT:  Me, too.

             8             MR. PAYTON:  If we could take a short break so I can

             9   get my --

            10             THE COURT:  Sure.  How much time?

            11             MR. PAYTON:  Fifteen minutes would be fine.

            12             THE COURT:  Okay.  We'll see you in about fifteen

            13   minutes.

            14                  (Court recessed, 9:30 a.m.)

            15                  (Court reconvened, 9:50 a.m.)

            16             THE COURT:  Okay.  Mr. Payton?

            17             MR. PAYTON:  I understand, your Honor, that Mr.

            18   Kolbo, the Plaintiff, has rested with the understanding that

            19   we're going to be presenting other things, documents, and

            20   depositions.

            21             THE COURT:  Correct.

            22             MR. PAYTON:  But given that's where we are, and it's

            23   time for the defendants to present their case, I think it's

            24   appropriate now to address an issue that's just been hanging

            25   out there just by briefly an oral motion regarding the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     42

             1   individual defendants and whether or not they shouldn't be

             2   entitled to judgment right now at this stage of the

             3   proceedings.  This will just take a few minutes, but I think

             4   it's an appropriate point to talk about what the Plaintiff has

             5   presented in the way of evidence that relates to these

             6   individual defendants.  And then at the end of that, I'll --

             7             THE COURT:  You could do so if you want, but it's my

             8   intention to deal with that in my opinion as oppose to right

             9   now.  I certainly understand -- you have briefed extensively

            10   in your Motion for Summary Judgment.  I have no problems you

            11   making a record.  It's an issue that I'm well aware of.

            12             MR. PAYTON:  I certainly know the Court is well

            13   aware of it because we presented you with briefs --

            14             THE COURT:  Right.  Go on.

            15             MR. PAYTON:  -- but if I can just take a few minutes

            16   just to see where we are.

            17             THE COURT:  Absolutely.

            18             MR. PAYTON:  Because this case was brought not only

            19   by against the University of Michigan and its law school but

            20   against three individual governmental officials, Lee

            21   Bollinger, President of the university; Jiff Lehman, the

            22   current Dean of the law school; and Dennis Shields who was the

            23   Director of Admissions when the policy went into effect.  They

            24   were sued in their personal individual capacities for money

            25   damages against -- I know the Court is well aware of this








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     43

             1   issue because it's been briefed more than once --

             2             THE COURT:  More than once.

             3             MR. PAYTON:  More than once.  But the standard is

             4   actually very clear and not in dispute.  Individual

             5   governmental officials are shielded from personal liability

             6   under the doctrine of qualified immunity when they proceed in

             7   good faith to carry out their official duties based upon the

             8   law as a reasonable governmental official would have

             9   understood.

            10            Now, I understand that Justice Powell's opinion in

            11   Bakke is the question of whether it is the case that governs

            12   this case is under advisement. The Court is going to decide

            13   that.  And you know our views.  You've heard that.  But

            14   however this Court resolves that question, I think there's no

            15   question but --

            16             THE COURT:  It's an independent issue.

            17             MR. PAYTON:  That's right.  The Bakke opinion --

            18             THE COURT:  One has nothing to do with the other.

            19             MR. PAYTON:  Right.

            20             THE COURT:  I absolutely agree.

            21             MR. PAYTON:  And the Bakke opinion however it's

            22   resolved in the case in chief, it is the governing standard

            23   for whether or not the officials were acting reasonably.

            24            So unless there's evidence that these three

            25   individual defendants violated Plaintiff's clearly established








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     44

             1   rights, that's acted in a way of -- clearly exceeded the law

             2   that a reasonable person would have understood it to be, they

             3   can't be held personally liable.

             4            The Plaintiff has now rested.  What's the Plaintiff's

             5   case against these three individuals?  Lee Bollinger.  He is

             6   the President of the university.  He was the Dean of the law

             7   school in 1992 with policy was adopted.

             8  He set that process in motion.

             9            While he was dean, Allan Stillwagon left the law

            10   school, and a new director of admissions was hired, Mr.

            11   Dennis Shields.  And we know the rest.

            12            Jeff Lehman, the current Dean.  He served on the

            13   committee that wrote the new policy that was adopted in 1992.

            14   As Erica Munzel testified as Dean he told her how many

            15   students should be admitted in a class and how many Michigan

            16   residents that class ought to contain, but that he has never

            17   had a conversation with her about any comparable number, range

            18   of numbers, or percentages as it relates to minority students.

            19             Dennis Shields.  He was the new director of

            20   admissions in 1991, also served on the Faculty Admissions

            21   Committee that drafted the 1992 policy.  He hired Erica

            22   Munzel.  He trained her on how to review applications,

            23   file-by-file basis, looking at all applications, letting them

            24   compete against each other.  And while race was one factor, it

            25   was only one of many factors in which all candidates competed








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     45

             1   for admission. That's it.

             2         They called Allan Stillwagon, Erica Munzel, and then

             3   they called Kinley Larntz.  Now nothing that Mr.  Stillwagon

             4   or Ms. Munzel testified to the Court reaching any qualified

             5   immunity.

             6         That just leaves Kinley Larntz.  Now his testimony about

             7   odds ratios of admissions of being greater for minority

             8   students within the same cells than for majority students, I

             9   believe his testimony was quite flawed and actually didn't

            10   really survive, but I'm going to assume I'm wrong and that it

            11   is just what he said, okay, on its own terms.

            12            What does the odds ratios point have to do with using

            13   race as a factor as Bakke allows.  Is Plaintiff proposing that

            14   this Court establish some new legal standard about odds

            15   ratios, an odds ratio of -- pick a number.  You know, pick a

            16   number, as Dr. Larntz said a large number.  Pick a large

            17   number, be deemed to constitute more than a plus factor that

            18   Bakke says is okay.  It would have to ignore the uncontested

            19   testimony of -- in the Plaintiff's own case from Erica Munzel

            20   about how admissions decisions are actually made,

            21   case-by-case, file-by-file, just as Bakke contemplated.

            22   Case-by-case, file-by-file, considering all the relevant

            23   factors including race to select a diverse class, and using

            24   race to obtain a critical mass of minority students in order

            25   to the benefits of that first class.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     46

             1           But this would have to be a new rule about odds

             2   ratios, and obviously if it's a new rule, it can't be a new

             3   rule that sort of voids someone's qualified immunity.  It has

             4   to be clearly established.

             5            Rule 52(c) authorizes this Court to make dispositive

             6   finding on facts given the evidence that's been presented and

             7   to grant us partial judgment on the case as it now exists.  I

             8   think the Plaintiff has put in insufficient evidence, wholly

             9   insufficient evidence to hold these three individuals liable

            10   and to breach their qualified immunity.  The individual

            11   defendants I think should not have been actually joined in

            12   this case, and they should dismissed from it right now.

            13             THE COURT:  Thank you, Mr. Payton.

            14             MR. KOLBO:  Very briefly, your Honor?

            15             THE COURT:  Sure.

            16             MR. KOLBO:  We, your Honor, actually have a

            17   stipulation in the Pretrial Order that Plaintiff -- if it's

            18   determined that the university is liable, the law school is

            19   liable for the manner in which they use race in the admissions

            20   process.  The Plaintiff has sued the individuals who would be

            21   responsible for that unlawfulness.  So that their individual

            22   responsibility really depends on whether or not the Plaintiff

            23   establishes that the University of Michigan Law School policy

            24   is unlawful even if one merely keeps that issue as to whether

            25   it's unlawful in light of Justice Powell's opinion as








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     47

             1   establishing what would be fairly violated rights under the

             2   constitution.

             3            As I mentioned in our Opening Statement, your Honor,

             4   we believe actually that the burden in this case rests upon

             5   the Defendants.  There is no dispute in this case that the law

             6   school uses race as a factor in admissions.  At that point,

             7   the burden actually shifts to the Defendants to demonstrate

             8   that race is being used in the manner that is narrowed

             9   tailored to achieve what they assume to be a compelling

            10   governmental interest.

            11            Since they haven't put on a case yet, your Honor,

            12   they certainly haven't carried that burden.

            13           For those reasons and for the reasons that we've

            14   actually indicated in the Summary Judgment papers that we've

            15   filed, we don't believe that the law school is entitled to

            16   Summary Judgment on Qualified Immunity.  As indicated, your

            17   Honor, of course, we are going to be submitting additional

            18   exhibits and deposition testimony, designated for that purpose

            19   at the close of the trial, or at some point during the course

            20   of the trial.  We would oppose the motion.

            21             MR. PAYTON:  Just one --

            22             THE COURT:  Sure.

            23             MR. PAYTON:  This is what the Pretrial Order says in

            24   the stipulations that we've reached.

            25             THE COURT:  What page are you reading?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     48

             1             MR. PAYTON:  I'm on page 4.

             2             THE COURT:  I see it.  What line?

             3             MR. PAYTON:  It's paragraph 5.  It's right in the

             4   center of the page.

             5             THE COURT:  I see it.

             6             MR. PAYTON:  It says,

             7            "Insofar as Plaintiff prevails in her argument that

             8   the operation of the Law School's admissions process violated

             9   Plaintiff's clearly established constitutional rights such

            10   that University officials responsible for the operation of the

            11   admissions process may be individually liable for any

            12   damages."

            13            That's the phrase, "such that."

            14            And I don't disagree with Mr. Kolbo that we bear the

            15   burden on our affirmative defense which is the overall case.

            16            On the issue of qualified immunity that's a different

            17   standard.  And they have to show, they have to show that, in

            18   fact, these officials were acting in violation of clearly

            19   established legal rights as a reasonable person would

            20   understand that and they have not done that.  And there's no

            21   evidence in the record that they have put in.  I hear him

            22   saying he's going to put in some other things.  I don't think

            23   there could be any other things that are going to undermine

            24   qualified immunity.  It's a very powerful doctrine, and I

            25   think that these three individuals are entitled to its








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     49

             1   protection right now.

             2             THE COURT:  Okay. I'll take the motion under

             3   advisement.  I suspect you concur --

             4             MS. MASSIE:  We join, yes.

             5             THE COURT:  Okay.  I'm sorry, I didn't mean -- I

             6   just assumed you concurred.

             7             MS. MASSIE:  No problem.

             8             THE COURT:  I'll take it under advisement.

             9             MR. PAYTON:  Okay.  Your Honor, the University will

            10   now present its case.  Let me just tell you where we're going

            11   to go today and tomorrow.

            12             THE COURT:  Please.

            13             MR. PAYTON:  We're going to call first, President of

            14   the University, Lee Bollinger who is right here.  I think we

            15   will -- we have a very good chance of finishing with him this

            16   morning.

            17             THE COURT:  That's great.

            18             MR. PAYTON:  This afternoon we anticipate calling

            19   Professor Richard Lempert.  I believe we will probably finish

            20   him this afternoon.  Tomorrow morning, we expect to begin with

            21   our expert on statistical analysis, Stephen Raudenbush.  He

            22   will take certainly all the morning, maybe some of the

            23   afternoon.  And we will then put on in the afternoon Dennis

            24   Shields who was the Director of Admissions in 1991, and served

            25   on the Admissions Committee.  That's what we expect for the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     50

             1   rest of today and tomorrow.

             2             THE COURT:  Great.  I appreciate it.

             3             MR. PAYTON:  The University calls as its first

             4   witness, President Lee Bollinger.

             5                   L  E  E   B O L L I N G E R ,

             6  having been called as a witness herein, and after having been

             7   first duly sworn to tell the truth, the whole truth and

             8   nothing but the truth was examined and testified as follows:

             9                    DIRECT EXAMINATION

            10  BY MR. PAYTON:

            11   Q    Good morning, President Bollinger.

            12   A    Good morning.

            13   Q    Would you state your full name for the record?

            14   A    Lee C. Bollinger.

            15   Q    Okay.   And you are currently the President of the

            16  University of Michigan?

            17   A    That's correct.

            18   Q    And how long have you served in that position?

            19   A    Four years.

            20   Q    You started in 1997?

            21   A    That's correct.

            22   Q    Okay.  And before you were the President of the

            23  University of Michigan, what job did you hold?

            24   A    I was the provost at Dartmouth College.

            25   Q    What does the provost do?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     51

             1   A    The provost is the chief academic officer principally

             2  responsible for the academic quality of the institution.  Also

             3  the chief budget officer.

             4   Q    Reports directly to the president?

             5   A    That's correct.

             6   Q    And prior to being the provost at Dartmouth, what

             7  position did you hold?

             8   A    I was the Dean of the University of Michigan Law School.

             9   Q    And what was your term of being the Dean of the law

            10  school?

            11   A    1987 to 1994.

            12   Q    And prior to being the Dean of the law school you were on

            13  the faculty for a number of years; is that correct?

            14   A    That's correct.

            15   Q    When did you start on the faculty?

            16   A    I joined the faculty in 1973.

            17   Q    So you're on the faculty in 1973, and then 1987, you

            18  became the Dean.

            19   A    That's correct.

            20   Q    How do you become Dean?  What happens?

            21   A    There's a search committee, a search process that is set

            22  up.  The central administration, the provost, ask the faculty

            23  to recommend a number of people to form a search committee.  It

            24  is principally, if not exclusively, made up of faculty members.

            25  A national search is conducted.  Interviews are held with the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     52

             1  faculty. And then the search committee presents three names to

             2  the provost and the president and they select from that list.

             3   Q    Now, you wanted to be Dean; right?  You weren't -- it

             4  wasn't against your will that you were made Dean, you wanted to

             5  be Dean.

             6   A    If the truth be told, yes.

             7   Q    And why were you interested in being the Dean of the law

             8  of the school?

             9   A    I care deeply about the law school.  I realize being an

            10  academic administrator was something that I might be -- have

            11  some talents at, and those two things led me to want to accept

            12  the position.

            13   Q    And did you have a view or a vision of what you wanted to

            14  do as Dean of the law school?

            15   A    One of the things about becoming the Dean is that you

            16  move from being a regular faculty member with really limited

            17  responsibility for administrative things in the law school to

            18  having full responsibility.  So I had a lot to learn.  But what

            19  I knew is that my principal job was to focus on the academic

            20  quality of the law school, and that really meant the quality of

            21  the faculty and the quality of the student body.

            22   Q    And did you understand when you became Dean that you

            23  needed to focus on admissions?

            24   A    I did.  Admissions is really the crucial point at which

            25  we gather a class.  And that -- the composition of the class,








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     53

             1  the nature of the class, the quality of the student body is

             2  really determined at that stage.

             3             So I knew that at some point admissions was going to

             4   have to be a principal focus.

             5   Q    Now, Allan Stillwagon who was the first witness at the

             6  trial here, he was the Dean of Admissions when you took over --

             7  Director of Admissions when you took over as Dean in 1987; is

             8  that correct?

             9   A    That's correct.

            10   Q    Had you had some contact with him as a faculty member?

            11   A    I had, but very casual.  I think once or twice I may have

            12  served on the so-called Admissions Committee.  But at that time

            13  it was a committee that was regarded as a light committee

            14  obligation.  And, of course, it's a relatively small community,

            15  some fifty faculty, and you tend to know the staff and the

            16  like, but very limited contact with Allan.

            17   Q    You didn't hire Mr. Stillwagon.

            18   A    I did not.

            19   Q    Who had hired him?

            20   A    I believe Dean Terry Sandlow.

            21   Q    He's your immediate predecessor?

            22   A    Yes.

            23   Q    Now, Mr. Stillwagon reported to you as the Director of

            24  Admissions?

            25   A    That's correct.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     54

             1   Q    And what was your contact with Mr. Stillwagon once you

             2  became Dean?

             3   A    I guess I would describe it in two ways.  There's the

             4  contact that comes from issues arising this particular

             5  application, this particular policy.  And that might come up

             6  once every two weeks or once a week.  I can't remember exactly.

             7  But there be limited contact, really directed at some

             8  particular issue.

             9                   And then a few times a year we would we would

            10   sit down and go over a more extensive evaluation of admissions

            11   and what had happened the preceding year, what we hoped to

            12   accomplish in the subsequent year.

            13   Q    Let me ask you this, President Bollinger, when you became

            14  Dean in 1987, what was your, you know, state of knowledge or

            15  familiarity with admissions at the law school?

            16   A    It wasn't very deep I'm afraid.  In fact, I knew very

            17  little about reading files.  I knew very little about the

            18  particular policies.  I was just generally familiar with

            19  admissions.

            20   Q    Okay.  Do you recall prior to being Dean, do you recall

            21  being aware something called the Special Admissions Program?

            22   A    I recall that term. There's a concept.  But no particular

            23  knowledge as to how it was implemented.

            24   Q    Okay.  What did you think it was?

            25   A    Well, I knew that the law school had the commitment








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     55

             1  really for two decades at that point, roughly two decades, to

             2  ensure that we had a racially and ethnically diverse student

             3  body. And that's what the Special Admissions term applied to.

             4   Q    Now, when you became Dean, did you come to have concerns

             5  about the way in which Mr. Stillwagon operated as the Director

             6  of Admissions?

             7   A    Yes.  I knew - to go back to what I said a while ago, I

             8  knew that at some point I was going to focus on admissions and

             9  yet I didn't have enough information really at the beginning to

            10  my deanship to undertake that. But in the first few years, of

            11  course, I developed impressions about how we might improve

            12  admissions.  Things like getting more faculty involvement.

            13  There was very little faculty involvement in the admissions.  I

            14  thought that ought to increase. Issues about what kinds of

            15  things we look for in applications, how we review them.  I also

            16  knew that issues of racial and ethnic diversity were on the

            17  horizon.

            18             So in the first few years I would arrange these for

            19   discussion with members of the faculty, but also with the

            20   admissions office and Allan Stillwagon in particular.

            21             And my concerns were that Allan may not be as

            22   receptive to rethinking the issues as I thought was required.

            23   And so -- I was concerned about that.

            24   Q    What do you mean he not be receptive to rethinking the

            25  issues, what are you talking about?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     56

             1   A    This really required a kind of openness to reshaping

             2  admissions in some significant ways.  And I felt that Allan was

             3  quite resistant of that.

             4   Q    Did you also have some concerns about allegations that

             5  had come to your attention about remarks that had been made to

             6  minority applicants and female applicants that were perceived

             7  to be offensive?

             8   A    Yes.

             9   Q    Now, did you raise any of these concerns with Mr.

            10  Stillwagon, the need for, you know, more flexibility, and all

            11  of those, and all the remarks, did you raise this with Mr.

            12  Stillwagon?

            13   A    Yes, I did.

            14   Q    And what happened?

            15   A    Allan was resistant to these discussions.  And I

            16  eventually decided that it was important to have a change.

            17   Q    And is that how he came to part ways with the law school?

            18   A    Yes.

            19   Q    Okay.  Now, President Bollinger, I want you to go back to

            20  being Dean Bollinger for the purposes of this because what

            21  we're concerned with is when you were Dean.

            22             When you were Dean what did you view the law

            23   school's educational mission to be?

            24   A    It's very difficult to capture an educational mission in

            25  a paragraph, but I would these are the principal matters.  The








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     57

             1  law school has the responsibility to communicate to students, a

             2  body of law.  There is lot to learn about contracts, civil

             3  procedure, torts, anti-trust, constitutional law.   Part of our

             4  majority responsibility is to convey to each new generation of

             5  law students as much of that body of law and juris prudence as

             6  we can.  So that I would say is the first.

             7             The second is to try to inculcate in students a way

             8   of thinking.  And it's often talked about in law schools as a

             9   special way of approaching the world.  I'm not so sure it's

            10   that special.  But in any case what it is to my mind, is an

            11   ability to make problems more complex.  And that means being

            12   to understand multiple view points, multiple ways of

            13   understanding a problem or the world at the same time.  And

            14   this turns out given human nature to be exceedingly difficult

            15   to do. There's a tendency that we have to think that we know

            16   what the answer is; to think that we know how to deal with a

            17   problem or an issue, and only later are we surprised to find

            18   out that there are many other ways of viewing this same issue

            19   or problem.

            20             And law schools are built around the proposition

            21   that by analyzing case-after-case-after-case, problem-

            22   after-problem in a very real setting, that is, of a real case,

            23   that students will acquire through this habitual exercise this

            24   unusual capacity to be able see and take a point of view, and

            25   at the same time integrate into their thinking other








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     58

             1   prospectives on the same problem.  That's the second.

             2             The third I would say is that in many ways law

             3   schools are the continuation of the ideal of the liberal

             4   education, law so interwoven in life that you can't understand

             5   law fully unless you under economics or history or philosophy.

             6   And we try to integrate a liberal education really into a law

             7   school education.

             8             So I would say that is my sense and my description

             9   of what a law school education is all about.

            10   Q    Does race play a role in the law school's educational

            11  mission?

            12   A    Absolutely.

            13   Q    What's the role?

            14   A    Given the history of this country, given the history of

            15  race relations in the United States and indeed in the world,

            16  both for good and for bad, it is simply a part of life.  And it

            17  is very important as you're trying to do these things I've just

            18  outlined, that is to understand the body of law, and multiple

            19  ways of thinking, and to extend the liberal education, it is

            20  very important to be able to do that in a context in which

            21  people have different life experiences, different backgrounds,

            22  comment the world in different ways.  And racial and ethnic

            23  diversity are as critical to that process as any other way in

            24  which we try to compose a class in our discussions and in our

            25  search.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     59

             1   Q    President Bollinger, I want to come back to the

             2  Admissions Policy and admissions at the law school when you

             3  were Dean.  You hired Dennis Shields to be the Director of

             4  Admissions; is that correct?

             5   A    That's correct.

             6   Q    And what was that process?  How did that work?

             7   A    I appointed a search committee and the search committee

             8  conducted a national search. And, again, we had, I think three

             9  or four candidates.  I can't remember precisely how many and

            10  from those I interviewed each one of them, and selected Dennis

            11  as the best.

            12   Q    Okay.  I want to understand something about how the

            13  policy works at the law school.  Who is ultimately responsible

            14  for policy matters at the law school?

            15   A    It is really the faculty working together with the Dean.

            16  Law school faculties work sort -- the committee as a whole.

            17  And the Dean is responsible for bringing issues to the faculty,

            18  and trying to provide leadership on those issues, but

            19  ultimately it is the faculty working with the Dean that decides

            20  major policy.

            21   Q    Now, in the fall of 1991, you started the process of

            22  coming up with a new admissions policy.  You appointed a

            23  Faculty Admissions Committee to look into that?

            24   A    That's correct.

            25   Q    Could you just describe how you went about doing that?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     60

             1   A    I mentioned a moment ago that I knew I was going to have

             2  to focus on admissions in a broad way.  I knew also that issues

             3  of racial and ethnic diversity and using race as a factor in

             4  admissions for educational purposes, I knew that that was under

             5  discussion and review in the society.  I knew that Bolt Law

             6  School at the University of California in Berkeley, for

             7  example, was in discussions with the federal government about

             8  their process of admissions and using race as a factor.

             9   Q    They were being investigated.

            10   A    I think -- let me just say I'm not sure I would use -- I

            11  just don't know exactly what term I would -- but certainly

            12  there were discussions under way, and it was a review, critical

            13  review, perhaps.

            14             I knew that these were major issues and I had this

            15   broad sense as I said that we should be rethinking admissions.

            16   And to that end, I wanted as a major activity for the faculty

            17   and all of us that year, I wanted us to focus on admissions.

            18   This was not just your usual we've got ten issues, let's take

            19   them up this year.  This was going to be a major focus for the

            20   law school.

            21             And, of course, because some of these involved not

            22   only policy but the Constitution of the United States, law

            23   itself, it was imperative in my view that we be as confident

            24   as we could that we were in full compliance with the

            25   Constitution and the law.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     61

             1             So I selected a committee. With that in mind, these

             2   were committee members that were highly respected by the

             3   faculty, very distinguished scholars, several of whom have

             4   expertise in this area of constitutional law involving race,

             5   civil rights, and Bakke and so on.  And I wanted people who

             6   would care deeply about admissions and in making sure that we

             7   had the best admissions policy that we could.

             8             To my knowledge -- to my recollection, I don't think

             9   we had a written policy before that, and part of this was to

            10   get the law school faculty to say this is what we want to do

            11   with admissions.  So the committee was set up for that

            12   purpose.

            13   Q    All right.  Now, Professor Lempert was picked by you to

            14  chair this committee.  Why did you select him?

            15   A    Professor Lempert met all the qualifications I mentioned

            16  a moment ago.  But he also had added capacity and things like

            17  social science work because he has Ph.D. in sociology and has

            18  an appointment in the Sociology Department, so it's an

            19  excellent working --

            20   Q    He's a dual appointment.  He's also a law professor?

            21   A    Yes, that's correct.  But he has expertise and knowledge

            22  being able to work with data sets and quantitative data and so

            23  on.   And that was a very important qualification.

            24   Q    You also put Dennis Shields on this committee; is that

            25  correct?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     62

             1   A    That's correct.

             2   Q    Now, Dennis Shields had literally just been hired by you

             3  to be the director of admissions.  He hadn't been at Michigan,

             4  why did you put Dennis Shields on the Committee?

             5   A    I believed that admissions would work best if we had more

             6  integration between the faculty and the admissions process,

             7  more involvement, more engagement of faculty in admissions.

             8             I also believed there was and goes with the point

             9   which is a slightly different way of putting it, I also felt

            10   that the faculty was -- really didn't know as much as it

            11   should about the admissions process.  I was a perfect example

            12   of that as a faculty member. I felt that the Dean of

            13   Admissions or the Director of Admissions didn't know enough

            14   about what the faculty expected, and knew and their experience

            15   in the classroom, and with students.  So this was the perfect

            16   opportunity to take a new director admissions and merge him

            17   with the faculty in a very important venture for us.  And it

            18   just seemed like an ideal situation.

            19   Q    Now, once the committee is formed in the fall of 1991,

            20  and starts doing its work what was your relationship to the

            21  committee?  What's your style as Dean?  Did you leave them

            22  alone, did you go to the meetings, what happened?

            23   A    No, I -- once they're appointed and thinking about this

            24  I'm sure would get periodic reports on how they were doing, and

            25  I, of course, had some views, I've already said them, and I





                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     63

             1  wold say them to the committee.  And I would make a case for

             2  things that I believed.  But at the end of the day it was

             3  really their job to come up with a policy.  They would present

             4  that to me at the end and then we would take it to the faculty,

             5  and that's what we did.

             6   Q    The committee starts in the fall of 1991, and it

             7  completes its report in April of 1992, many months later.  And

             8  then that report is presented to the faculty?

             9   A    That's correct.

            10   Q    You were obviously the Dean, you were at the faculty

            11  meeting, who presented the report?

            12   A    It would be the chair of the committee?

            13   Q    Okay.  What happened at that meeting with this report and

            14  recommendation which is our exhibit and our policy, what

            15  happened at the meeting.

            16             THE COURT:  Exhibit 4.

            17             MR. PAYTON:  Yes.

            18   A    I don't remember it in detail.  It's been many years now.

            19  But I do remember the sense of the day, and the faculty

            20  approached it with all of the seriousness one would expect from

            21  what I've said was -- sort of the purpose of the whole

            22  activity.   I remember just general and extensive discussion.

            23  And I also remember a general and I believe unanimous vote in

            24  favor of the policy as thought through and as recommended by

            25  the committee.



                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     64

             1  BY MR. PAYTON:

             2   Q    Okay.  Now once the policy is adopted did you meet with

             3  Dennis Shields and tell him that he had to get any particular

             4  number of minority students into the class?

             5   A    No.

             6   Q    Or any particular percentage of minority students in the

             7  class?

             8   A    No.

             9   Q    Or any particular range of minority students in the

            10  class?

            11   A    No.

            12   Q    Did the Faculty Admissions Committee have to deal with

            13  Dennis Shields?  Did you interface or did you leave that up to

            14  the committee as well to implement the policy?

            15   A    I left it up to the committee, and the point of this was

            16  to have a faculty committee that would be much more intimately

            17  involved in the admissions process, and that's exactly -- the

            18  issue of critical mass and diversity and diversity of all kinds

            19  was really the -- it was the responsibility of the committee

            20  working with admissions office.

            21   Q    Okay.  You've read the 1992 policy recently.  I asked you

            22  to read it.

            23   A    Yes.

            24   Q    How does it hold up?

            25   A    I'm very proud of this.  I think that the law school met








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     65

             1  its responsibility to -- as seriously as possible and with as

             2  much good faith as one can bring to an issue like this, to

             3  think through issues of racial and ethnic diversity in the

             4  context of the entire admissions process.

             5             I'm proud of every part of it.  I'm proud of what

             6   happened with respect to the broad understanding of diversity,

             7   the conceptions of -- the way the admissions process worked.

             8   And I'm extremely proud of the policy with respect to racial

             9   and ethnic diversity and how that's conceived of.

            10             MR. PAYTON:  Your Honor, I had originally thought

            11   that it would make some sense to sort of go through the

            12   policy, but I think because Professor Lempert is coming next

            13   and we're going to spend more time going through the policy,

            14   I'm just going to skip that with President Bollinger.

            15             THE COURT:  Thank you.

            16  BY MR. PAYTON:

            17   Q    President Bollinger, two years after this policy was

            18  adopted in 1994, you left the law school and went to Dartmouth;

            19  is that right?

            20   A    That's correct.

            21   Q    And since then you've become the president of the

            22  university; is that correct?

            23   A    That's correct.

            24   Q    And you really haven't had any ongoing responsibilities

            25  at the law school since 1994; is that correct?








                                                                            66

             1   A    That is correct.

             2             MR. PAYTON:  No further questions.  Thank you, very

             3   much.

             4             THE COURT:  Why don't we go in order?  Any

             5   questions?

             6             MS. MASSIE:  We don't have any.
             
             7

             8

             9

            10

            11

            12

            13

            14

            15

            16

            17

            18

            19

            20

            21

            22

            23

            24

            25








                                                                     67

                          1/18/01 - BENCH TRIAL - VOLUME III

        1                          CROSS EXAMINATION

        2           BY MR. KOLBO:

        3      Q.   Good morning, President Bollinger.

        4      A.   Good morning.

        5      Q.   We met once before, I think some time ago.  My name is

        6      Kirk Kolbo and I represent the plaintiff in the current

        7      lawsuit.  Am I correct that, that Allan Stillwagon was Dean

        8      of Admissions for approximately three years after your

        9      tenure as Dean at the Law School commenced?

       10      A.   I think that's right.

       11      Q.   Okay.  And during that three-year period, did you have

       12      an interest in how the admission process worked?

       13      A.   Did I have an interest in how, of course I had an

       14      interest.

       15      Q.   As the dean, I take it, I think I understood this from

       16      your earlier testimony this morning, you took an increased

       17      interest in how admissions worked, once you had

       18      responsibility or once you assumed the responsibility of

       19      Dean, is that a fair statement?

       20      A.   What I said is that when I became Dean, I recognized

       21      that I didn't know very much about admissions, that I also

       22      knew that it was a critical part of the, of the law school,

       23      that I developed some viewpoints about how admissions

       24      should be done and had changed.  And that over the course

       25      of three or so years, I then realized it was time to really





                                                                   68

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      focus on admissions as policy.

        2      Q.   And did you have an interest in the, from, say, 1987

        3      when you first became Dean up until the time that Assistant

        4      Dean Stillwagon left in 1990, did you have an interest at

        5      that time in how the law school went about assembling the

        6      critical mass of minority students?

        7      A.   Of course I had an interest.

        8      Q.   Okay.  And I think you indicated that you would have

        9      some conversations from time to time with Assistant Dean

       10      Stillwagon about how the admissions process worked?

       11      A.   Yes.

       12      Q.   Given your interest and the issue of minority

       13      admissions, did you have some conversations with Assistant

       14      Dean Stillwagon about how exactly it was minority

       15      admissions were the focus of the admissions office?

       16      A.   I don't recall any discussions in detail about how it

       17      worked.

       18      Q.   You were generally familiar with the fact that there

       19      was something called the special admissions program,

       20      correct?

       21      A.   That is correct.

       22      Q.   You were generally aware of that during Assistant Dean

       23      Stillwagon's tenure, correct?

       24      A.   That's correct.

       25      Q.   Did you ever have a conversation where you out of





                                                                   69

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      curiosity asked Assistant Dean Stillwagon what the details

        2      of the special admissions program were?

        3      A.   As I said, I don't recall any discussions of a

        4      detailed description of how admissions worked in that

        5      sense.

        6      Q.   Do you think you asked Assistant Dean Stillwagon how

        7      the special admissions program worked at any time during

        8      the three years that he was Assistant Dean during your

        9      tenure?

       10      A.   I don't recall.

       11      Q.   Do you recall as, once you became Dean at the Law

       12      School, did you undertake some investigation to ascertain

       13      whether there were any faculty resolutions or policies with

       14      respect to how minority admissions were handled at the law

       15      school?

       16      A.   I'm sorry, could you restate the question please?

       17      Q.   Sure.  Once you became the Dean of the Law School, did

       18      you undertake any efforts to investigate what faculty

       19      mandates or policies there might be with respect to how

       20      minority admissions were handled at the law school?

       21      A.   I don't recall doing that.

       22      Q.   Well, given your interest in that subject, isn't that

       23      one of the things you took an interest in investigating?

       24      A.   I'm sorry.  I'm just trying to say to you that I had a

       25      general familiarity with how admissions worked.  And, and





                                                                   70

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      that applied as well to how racial and ethnic diversity

        2      worked under this label of special admissions.

        3      Q.   I think you testified, correct me if I'm wrong, that

        4      you did, over the course of the three years that Assistant

        5      Dean Stillwagon was there, you developed some concerns

        6      about the admissions office or admissions policies?

        7      A.   I did develop concerns.

        8      Q.   And did you develop any specific concerns with respect

        9      to the way in which race was factored into the admissions

       10      process decision making?

       11      A.   I developed what I knew.  What I came to know over my

       12      early years as dean was that this was something that we

       13      should focus on.  So I knew that this is something that the

       14      law school faculty, as far as I recall, had not really

       15      looked at closely.  And I felt that that was extremely

       16      important to do.

       17      Q.   You didn't have any specific concerns about whether or

       18      not the policy, as it was being operated under Assistant

       19      Dean Stillwagon had any legal problems, did you, or did you

       20      not, sir?

       21      A.   No.  All I can do is say what I've said before.  I

       22      knew that there were issues in the country that were

       23      rising.  I wanted us to look at our particular practices

       24      and policies, to look at them fresh, and to make sure that

       25      we were in compliance with the law.





                                                                   71

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      Q.   Did you have, did you ever raise any objections with

        2      Assistant Dean Stillwagon with respect to the way in which

        3      his office, admissions office viewed or considered race in

        4      the admissions process?

        5      A.   I'm sorry, you're going to have to restate that again.

        6      Q.   Yes.  At any time during your tenure as dean, starting

        7      in 1987 and up until the time that Assistant Dean

        8      Stillwagon departed, did you raise any objections with

        9      Assistant Dean Stillwagon concerning the manner in which

       10      race was concerned in the admissions process under his

       11      tenure?

       12      A.   I don't recall.

       13      Q.   You mentioned, I think, in your testimony this

       14      morning, if I don't use the right words, let me know.  But

       15      I think you suggested that Assistant Dean Stillwagon had

       16      some inflexibility in the way that he was approaching some

       17      things, as far as you were concerned?

       18      A.   I said that, I'm trying to say that I felt that there

       19      was a very important need to rethink admissions, really,

       20      from scratch almost, and that was, not only with respect to

       21      taking race into account and diversity, but more broadly,

       22      the whole question of faculty engagement with the

       23      admissions process and the like.  And then I felt that

       24      Allan was not as receptive to rethinking these things as I

       25      felt we needed.





                                                                   72

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      Q.   Did you have any concerns that Assistant Dean

        2      Stillwagon was not receptive with respect to any changes

        3      that might be made in the way that race was considered as a

        4      factor in the admissions process?

        5      A.   Again, a long, complicated sentence.  I want to make

        6      sure that I answer honestly and accurately, so please

        7      restate it.

        8      Q.   Sure.  You've mentioned, just as a preface here, that

        9      Assistant Dean Stillwagon might not be as flexible on

       10      approaching some issues with respect to admissions,

       11      correct, possible changes in admissions, is that fair?

       12      A.   That's fair.

       13      Q.   Okay.  Now, we haven't talked about any of the

       14      specific, or I haven't heard testimony from you with

       15      respect to any specific substantive areas which you thought

       16      that Assistant Dean Stillwagon might be somewhat inflexible

       17      or resistant to change, correct?  You haven't mentioned any

       18      substantive areas?

       19      A.   Well, no.  I have mentioned several areas where I felt

       20      there was a need to, to re-focus our attention, and, and,

       21      or to focus our attention, and also change, I mean there

       22      was some things I really wanted to change, like faculty

       23      engagement with the admissions process for a variety of

       24      reasons, but, I mean, that was a pretty clear view of mine.

       25      Other things I just knew that these were issues, and that





                                                                   73

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      the faculty and the law school, including me, had not

        2      really focused on them, and it was my responsibility,

        3      really, first and foremost, as dean, not to decide those

        4      issues myself, but to make sure that they were presented to

        5      the faculty and that's what I tried to do.

        6      Q.   Did Assistant Dean Stillwagon ever express any

        7      unwillingness to reconsider the manner in which race was

        8      considered a factor in the admissions process?

        9      A.   I can't -- again, my recollection here is that Allan

       10      was generally resistant, and, but specifically about what

       11      issue and that one in particular, I just, I can't recall.

       12      Q.   Do you recall ever asking Assistant Dean Stillwagon to

       13      consider re-evaluating the way in which race was considered

       14      as a factor in the admissions process?

       15      A.   I'm sorry.  Say that again.

       16      Q.   Do you recall ever -- did you ever ask Assistant Dean

       17      Stillwagon to consider re-evaluating the manner in which

       18      race was considered as a factor in the law school's

       19      admissions practices?

       20      A.   Again, I can't recall specific conversations with

       21      Allan.  I'm trying to, my point is really that, this is a

       22      long time ago.  And what I do know is that I had a whole

       23      set of things that I felt it was important to focus on;

       24      that Allan, generally, my impression of working with Allan,

       25      was that he was very resistant to rethinking these issues,





                                                                   74

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      and the precise conversations with him, that I had with him

        2      over time about each of these different areas, I just can't

        3      recall.

        4      Q.   So just to be fair, though, you don't recall a

        5      specific conversation about the subject of race and

        6      admissions with Assistant Dean Stillwagon, in terms of his

        7      willingness to accept change?

        8      A.   I do not recall a specific conversation with Allan

        9      Stillwagon.

       10      Q.   And other than, I understand you testified that you

       11      thought the new committee should evaluate the admissions

       12      policy in light of current, then current legal

       13      requirements.  But other than that desire to have the

       14      committee evaluate the admissions practices, did you have

       15      any specific, did you have any specific things about the

       16      way in which race was considered in the admissions process

       17      that you thought ought to be changed?

       18      A.   In general, I just, I'm going to be repeating myself

       19      here for which I apologize, but, essentially, I knew that

       20      there were issues about taking race into account.  It was a

       21      factor in admissions for purposes, for educational

       22      purposes.  I knew that these were issues.

       23               And it was my responsibility to make sure that we

       24      focused as closely and as seriously as we could as a

       25      faculty to make sure that we were fully in compliance with





                                                                   75

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      the constitution and the law.  That had not been done, in

        2      my memory by the law school faculty.  And 1991, '92 was the

        3      year in which we, we did that.

        4      Q.   Now, did you offer, am I correct in understanding that

        5      you offered Assistant Dean Stillwagon another position once

        6      you -- you asked him, did you, to leave the position as

        7      Assistant Dean?

        8      A.   Yes.  I told Allan that I felt it was important that

        9      we have a change in the, in the leadership of Admissions,

       10      but I also told him that I would be happy to talk with him,

       11      be glad to talk with him about possibly taking on another

       12      role within the law school.

       13      Q.   You were willing, you were open to that possibility?

       14      A.   I was open to that possibility, to discuss it with

       15      him.

       16      Q.   But he chose not to do that?

       17      A.   Yes.

       18      Q.   Did you, in your, in your role as Dean of the Law

       19      School, did you attempt from time to time, a committee of

       20      visitor meetings?

       21      A.   Yes.

       22      Q.   Would you describe what those meetings are?

       23      A.   There are two or three dozen alum, alums of the

       24      school, who are appointed to serve for a period of years.

       25      I can't remember exactly the term, to be, to come once a





                                                                   76

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      year and spend a few days at the law school and to discuss

        2      issues and to give advice.  The committee of visitors would

        3      meet.  The Dean would meet with them, and other

        4      administrators would also meet with the committee.

        5      Q.   And so would you as a dean, once you became the Dean

        6      in 1987, did you generally attend those meetings?

        7      A.   Absolutely.

        8      Q.   These are annual meetings?

        9      A.   Yes.

       10      Q.   Okay.  I wonder if I could ask the witness to be shown

       11      Exhibit 110.  Are you able to identify Exhibit 110?  Does

       12      it look familiar?  Actually if I could, I apologize,

       13      President Bollinger.  I wonder if I could ask you to take a

       14      look, instead at Exhibit 111.  I apologize for taking your

       15      time here.  Pardon me.  Is this, at least excerpts from the

       16      report of the committee of visitors that would be

       17      distributed to the attendees during the course of those

       18      meetings?

       19      A.   I can't say.  I mean, this is the first time I've

       20      looked at this document.

       21               MR. PAYTON:  We're not contesting the

       22      authenticity.

       23               MR. KOLBO:  Okay.  It's been represented and

       24      agreed by parties that this is a document of the law

       25      school, and I believe it's agreed that it's excerpts from





                                                                   77

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      the committee of visitors.

        2               MR. PAYTON:  That's right.

        3               MR. KOLBO:  Meeting, and includes, at least

        4      excerpts that we have included here to change admissions

        5      data.  Do you remember, does this refresh, looking at the

        6      document, does it refresh your recollection about seeing

        7      documents like this, even if not this particular one?

        8               THE COURT:  One eleven you're looking at?  I'm

        9      sorry.

       10               MR. KOLBO:  Yes.

       11      Q.   Does this refresh your recollection in terms of the

       12      kinds of documents you would see as part of these meetings?

       13      A.   There was a familiarity to the document.  I mean, I

       14      can't say that I remember this document, and.

       15      Q.   Did you, do you recall receiving reports from, I

       16      presume, Assistant Dean Stillwagon, during the course of

       17      these meetings on happenings, events, outcomes, as

       18      summarized by the admissions office?

       19      A.   I'm sorry.  Please say that again.

       20      Q.   Sure.  Do you just remember receiving reports of some

       21      nature from Assistant Dean Stillwagon, or someone in the

       22      Admissions Office concerning the previous year's

       23      experience, experiences of the admissions office?

       24      A.   Yes.

       25      Q.   And did that information sometimes include breakdowns





                                                                   78

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      on offers, admissions, offers, applications and so forth of

        2      law school applicants?

        3      A.   Offers, applications and so forth.

        4      Q.   The kind of information that's displayed, for example,

        5      on Exhibit 111.  If you'll turn to approximately the, I

        6      think it's identified as page 23 in the very upper

        7      right-hand corner.

        8      A.   Well, so, I mean, this has been confirmed as a law

        9      school document.  As a law school document, I probably read

       10      through this, I mean, that's all I can say.

       11      Q.   Do you remember having, perhaps you don't, but do you

       12      remember having any conversations with Assistant Dean

       13      Stillwagon in terms of the information that was reported

       14      with respect to minority admissions?

       15               MR. PAYTON:  In this document?

       16      Q.   Well, in these kinds of documents, generally speaking,

       17      these committee of visitor reports?

       18      A.   So the question is, well, let me say I can't remember

       19      specific conversations with, with Dean Stillwagon.

       20      Q.   Is it fair to say you can't recall specific

       21      conversations with Assistant Dean Stillwagon concerning the

       22      topic of the relative academic credentials of the

       23      underrepresented minority students who were admitted to the

       24      school versus students from other racial groups?  Is that a

       25      fair statement?





                                                                   79

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      A.   I'm sorry.  I just, all I can say is that I do not

        2      recall specific conversations with Allan Stillwagon.  If

        3      that's what your question is, that's all I can say.

        4      Q.   Can I just ask you briefly to take a look at Exhibit

        5      112.  Is this, I take it that this is no more familiar to

        6      you than Exhibit 111?  Is it, or do you recognize it?

        7      A.   I attempted to say, of course I remember this one

        8      extremely well, but I can't, I'm afraid I'm in the same

        9      position.

       10               THE COURT:  All right.

       11      A.   With respect to 112 as to 111.

       12               MR. KOLBO:  Your Honor, I'm going to at this time

       13      offer Exhibit 111 through 114, actually.

       14               THE COURT:  Any objection?

       15               MR. PAYTON:  Yes.  It's the same objection I had

       16      when Mr. Stillwagon was testifying.  I fail to see any

       17      relevance of this information about how the past operated

       18      in relation to what this case is about, which is how the

       19      1992 policy, which the parties have stipulated to governs,

       20      you know, the decisions after that in which is required to

       21      be implemented by the Director of Admissions.  I don't see

       22      how any of this relates to that.  And I think it shouldn't

       23      come in.

       24               MR. KOLBO:  Well, Your Honor, once again, it's

       25      certainly relevant to comparing the drafts what the prior





                                                                   80

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      system was to the current system.  And, in fact, Mr. Payton

        2      elicited testimony from President Bollinger concerning how

        3      the system worked before 1992.  So this is at least

        4      probative.

        5               THE COURT:  Again, same ruling.  I'm not sure it's

        6      relevant, but on the same token, I will admit it and if it

        7      becomes relevant, we'll use it.  Again, we'll determine the

        8      weight to which it will be given, if any, at a later time.

        9      Go on.

       10      Q.   Just one last question on this subject, President

       11      Bollinger.  Did you, yourself, ever make presentations to

       12      the committee of visitors with respect to admissions data?

       13      A.   I really can't recall.  I certainly know that there

       14      were reports that were given by the Director of Admissions,

       15      but I can't recall that I personally gave any report.

       16      Q.   Did you ever, ever come to have any reason to believe

       17      that Assistant Dean Stillwagon was carrying out the

       18      admissions, that he was engaging in admissions practices at

       19      the law school that were, in any way, inconsistent with any

       20      of the, any faculty policies or mandates?

       21      A.   Did I at that time?

       22      Q.   First of all?

       23      A.   Please state --

       24      Q.   First of all at that time during your tenure as Dean

       25      of the Law School.  And I'll try to be more specific about





                                                                   81

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      this.  During your time as tenure, as Dean at the Law

        2      School, did you ever learn of any reason to believe that

        3      Assistant Dean Stillwagon was considering race as a factor

        4      in the admissions process in any manner that was

        5      inconsistent with the law school's policies?

        6      A.   You know, I've tried to describe the situation then as

        7      best I could.  And it was one of really an admissions

        8      office that pretty well conducted admissions without major

        9      engagement from, from the law school faculty, and without.

       10               You know, I was new.  I had lots of

       11      responsibilities; faculty hiring, library, student issues,

       12      courses, curriculum, fundraising, I mean an immense number

       13      of things for a new dean.  And I was generally familiar

       14      with how this part of the operation worked.  It's like I

       15      was generally familiar with how the placement office

       16      worked.

       17      Q.   Well, I understand, but my question is very specific.

       18               MR. PAYTON:  Your Honor, I didn't want to

       19      interrupt him and I don't want to interrupt a specific

       20      question.  I just want to say that I think we're headed

       21      down a road that is, you know, we're going from irrelevant

       22      to something that's beyond that.  What does it matter what

       23      the answer is to -- these questions are about whether Dean

       24      Stillwagon did or didn't do something specific in 1987?

       25      Just, I don't see where this is going.





                                                                   82

                          1/18/01 - BENCH TRIAL - VOLUME III

        1               THE COURT:  What's the relevance?

        2               MR. KOLBO:  Your Honor, it goes to President

        3      Bollinger's understanding as to what was proper or not

        4      proper in the way that race should be considered in the

        5      admissions process.

        6               THE COURT:  I'll allow it.  Go on.

        7      Q.   Again, President Bollinger, did you ever come to have

        8      reason to believe that Assistant Dean Stillwagon was

        9      considering race as a factor in the admissions process in

       10      any way that was inconsistent with any law school policy or

       11      guidelines?

       12      A.   I can't, I can't recall my knowledge at the time, of,

       13      of -- let me step back.  The admissions office was pretty

       14      much on its own at that time.  And the law school faculty

       15      had not really focused on admissions in a significant way

       16      for many years.  And the law school committee, faculty

       17      committee, that was responsible for dealing with some

       18      admissions department, very, as I've described it before,

       19      very light administrative load and very little involvement

       20      with the, with the admissions office.  I was a new dean,

       21      tremendous range of responsibilities, a lot to learn.  And

       22      that was the situation.

       23      Q.   Just a few more questions I think, President

       24      Bollinger.  Once the 1992 policy went into effect, you were

       25      still Dean of the Law School for approximately another two





                                                                   83

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      years?

        2      A.   That's correct.

        3      Q.   During that two-year period did you have personal

        4      knowledge about how it was that the admissions office went

        5      about considering race as a factor in the admissions

        6      process?

        7      A.   Did I have a personal knowledge?

        8      Q.   Yes.

        9      A.   Well, in the general sense, I did.

       10      Q.   And what was that personal knowledge based on?

       11      A.   Well, it's a very broad question.  I knew that we had

       12      denounced adopted a policy.

       13      Q.   Did you know?

       14      A.   And I knew, I want to say a little bit more about

       15      that, if I could.  And I knew that there were faculty,

       16      because I appointed them to the committee, who were

       17      actively implementing the policy of '92.  I knew that I had

       18      a new Director of Admissions who clearly understood that

       19      that was the benefit of this year-long process, who clearly

       20      understood what the new policy at that time was.  And, you

       21      know -- my job was to make sure that, that all these things

       22      were in place and it was operating.  That's what I tried to

       23      do.

       24      Q.   As far as the manner in which race was used in the

       25      process, though, whatever knowledge you had about how that





                                                                   84

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      was being done in the admissions office depended on what

        2      you knew from Dennis Shields, for example, is that right?

        3      A.   Well, it came from a number of sources, but certainly

        4      from Dennis Shields.  But it would come from the faculty

        5      committee.  It would come from discussions with the

        6      faculty.  You know, when you do something like this, it's

        7      not a process that just ends at the, in April when a new

        8      policy is adopted.  People's focus is now on this.  We talk

        9      about it.  They think about it.  The ways in which

       10      diversity are conceived of, implemented, the ways in which

       11      it works in the classroom.  And that becomes a subject of,

       12      of importance and relevance in the community.

       13               And so you hear about it.  And you think about it.

       14      And you talk about it.  And that's what the law school did.

       15      I mean, this was, this was a very important moment for the

       16      law school.  It hadn't happened for many years.

       17      Q.   But as I understand it then, what you knew about the

       18      way in which race was used in the admissions process was

       19      based, essentially, on what you knew from other people,

       20      whether it be Assistant Dean Shields or other faculty

       21      members, is that correct?

       22      A.   I did not read admissions files.  I did not decide

       23      specifically who to admit.  I did not implement the policy.

       24      I mean, that was not my role.

       25      Q.   And that certainly is also true for the period from





                                                                   85

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      1994 up until the present, correct?  I'm sorry.  From 1997

        2      when you, you returned to the University of Michigan in

        3      1997, correct?

        4      A.   I have had no involvement in reading applications to

        5      the law school since becoming President of the University

        6      of Michigan.

        7               MR. KOLBO:  Okay.  I have no further questions,

        8      Your Honor.

        9

       10

       11

       12

       13

       14

       15

       16

       17

       18

       19

       20

       21

       22

       23

       24

       25






                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     86

             1             MR. GOLDBLATT: Defendants call Professor Richard 
Lempert.

             2             THE COURT:  Okay.  Professor, will you please step

             3   forward.

             4                    R I C H A R D   L E M P E R T ,

             5  Having been called as a witness herein, and after having been

             6   first duly sworn to tell the truth, the whole truth and

             7   nothing but the truth was examined and testified as follows:

             8                       DIRECT EXAMINATION

             9  BY MR. GOLDBLATT:

            10   Q    Will you please state your name for the record?

            11   A    Richard Lempert.

            12   Q    And where do you live?

            13   A    I live in Ann Arbor, Michigan.

            14   Q    If you could just briefly describe your educational

            15  background beginning let's say where and when you graduated

            16  from college?

            17   A    Yes, I went to Oberlin College.  I graduated in 1964.  I

            18  then went to Harvard Law School.  I spent a year at Harvard Law

            19  School.  I transferred to the University of Michigan in the

            20  sociology Ph.D. program.  After a year, I reenrolled in

            21  Michigan Law School and continued my Ph.D. program

            22  simultaneously.  I received my JD degree from law school in

            23  1968.  At that point I also joined the Michigan law faculty.

            24  Continued work with my Ph.D. and I finished it in 1971, and

            25  received a degree in 1972.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     87

             1   Q    To what is your current employment?

             2   A    Currently I'm the Francis Allen collegiate professor of

             3  law and professor of sociology at the University of Michigan.

             4             THE COURT:  Hold on one second.  We're going to put

             5   one quick thing on the record.

             6            Well, let's get some preliminary questions while the

             7   Marshals bring the defendant up.

             8  BY MR. GOLDBLATT:

             9   Q    Professor Lempert, how long have you been a member of the

            10  law faculty at the University of Michigan?

            11   A    Thirty-two years.

            12   Q    Do you also have a relationship with the Department of

            13  Sociology?

            14   A    I do.

            15   Q    Can you describe that relationship?

            16   A    I'm a professor of sociology.  I participate in the Life

            17  of the Defendant. I teach courses that's listed in sociology.

            18  And also I spent one year as acting chair of the department and

            19  three years as the chair of the department.

            20   Q    As a member of the law faculty what kind of classes do

            21  you teach?

            22   A    My primary teaching is in the area of Evidence and

            23  Sociology of Law.

            24   Q    And what about your scholarship, what fields have you

            25  written in?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     88

             1   A    I actually write rather widely.  I write in evidence.

             2  I've done work on DNA evidence.  I have a basic evidence course

             3  book.  I have written about areas like Relevance, and

             4  scholarship in general.  I've done a lot of work on statistical

             5  evidence in courts.  In Sociology of Law, I've worked on

             6  deterrence and the death penalty.  I've done a lot of work on

             7  juries.  I have worked on disputes, processing dispute

             8  settlement issues.  And pursue my fancy in some other

             9  directions as well.

            10             MR. GOLDBLATT:  Your Honor, we're at a point where

            11   we're about to launch into substance, is this a logical time

            12   to break?

            13             THE COURT:  It should be one minute. Why don't you

            14   go on?

            15  BY MR. GOLDBLATT:

            16   Q    Professor Lempert, in the thirty-two years in which

            17  you've been a member of the Michigan Law Faculty has service on

            18  faculty committees been part of your responsibilities?

            19   A    Yes, it has.

            20   Q    Have you ever served on the Faculty Admissions Committee?

            21   A    Yes, I have.

            22   Q    When have you served on that committee?

            23   A    The first time I served on it was in the 1970s.  The most

            24  recent time was I believe the 1991-92.  And I've served on it

            25  several other times.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     89

             1   Q    I'd like to talk about the 1991-92 year for a moment.

             2  That year were you a chair of the committee?

             3   A    Yes, I was.

             4   Q    Do you recall how you were selected for that role?

             5   A    Yes.  Then Dean Bollinger, now president of the

             6  university asked me if I would serve as chair.

             7   Q    Now, prior to 1991-92, you said you had chaired the

             8  committee a number of times.  Can you describe the other

             9  involvement you've had in admissions prior to 1991-92?

            10   A    I chaired the committee once before and co-incidentally I

            11  wrote the draft of something called the pool system which was

            12  adopted in the policy by our faculty.

            13   Q    Professor Lempert, if you could identify -- I don't know

            14  if you know the precise date, but can you identify the decade

            15  in which that happened?

            16   A    I think that is the late 1970s.  Mid to late 1970s.  But

            17  then I was also a member of the committee on several occasions.

            18  And then I did -- the year before I became chair I was a part

            19  of an ad hoc committee or a group of people that Dean Bollinger

            20  appointed to interview a new Dean of Admissions candidate.

            21   Q    You said this is the year prior to --

            22   A    This would have been the year prior to my years services

            23  chair.

            24   Q    Is that the 1990-91 academic year?

            25   A    That was the 1990-91, yes.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     90

             1   Q    Okay.  Do you know when it was the predecessor to Dean

             2  Shields left the law school?

             3   A    In terms of the person who filled the role, formally Dean

             4  of Admissions, that was Allan Stillwagon, and I believe he left

             5  at the end of the 1989-90 school year.  So we had a year with

             6  an Acting Dean of Admissions if you will of one of our regular

             7  associate dean.

             8   Q    Was that the year you served on this ad hoc committee to

             9  find a full-time replacement Allan Stillwagon?

            10   A    Yes, that was.

            11   Q    Can you describe the process that was employed by this ad

            12  hoc committee that you mentioned?

            13   A    Yes.  Basically, Sue Eckland who was serving as Dean of

            14  Admissions and also there were associates or assistant deans

            15  for students generally.  She and I guess some of her

            16  administrative assistants called from a list of applicants.  As

            17  I recall five or six people who they thought looked very

            18  strong, and they were each brought to the law school, and this

            19  ad hoc committee interviewed them and then made a

            20  recommendation to Dean Bollinger about who should be offered

            21  the position.

            22   Q    And who did the committee recommend should be hired?

            23   A    We recommended Dennis Shields who at that time was the

            24  Dean of Admission at Iowa Law School.

            25   Q    Did you, yourself, interview Dennis Shields?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     91

             1   A    I did.

             2   Q    Were you impressed with him?

             3   A    I was very impressed with him.  I should confess that I

             4  was prepared to be impressed with Dennis because I spent a year

             5  as a visitor at the University of Iowa Law School before Dennis

             6  was there as Dean of Admissions, but I still had friends and I

             7  contacted them and asked, you know, about this person, Dean of

             8  Admissions, and I got the "don't dare steal him" raves about

             9  him.  And then in the interview process I was also quite

            10  impressed with Dennis in lots of ways.  One is that he was just

            11  very savvy about admissions, and what had to be done.

            12  Secondly, he had prepared for the interview.  He knew some

            13  things like our admissions procedures.  Like he read our

            14  bulletin and had some ideas about how to make the school more

            15  attractive to applicants.  And, third, but I think most

            16  important was the conception about how the admissions office

            17  could function which we shared.

            18             I have one more interesting thing that I've done in

            19   the course of my career.  I spent all total about, oh, eight

            20   to ten years as a member of the law school Admissions

            21   Counselling Committee on Test Development and Research.  And

            22   in that capacity I've done a lot of interacting with

            23   admissions deans around the country because the committee

            24   always has a number of people who are deans of admissions on

            25   that committee.  And one of the differences between many








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     92

             1   schools in Michigan as it existed was that they had

             2   substantial faculty involvement in the admissions process at

             3   the level of reading files.

             4             Well, we had faculty involvement, it was more at the

             5   level of policy generally and to the extent they got into

             6   files at least the years I was on it, it was a very

             7   exceptional case like somebody who had a record who had been

             8   convicted of, let's say, a felony at some point in the past,

             9   do we admit him or not, but it wasn't reading files.  And

            10   Dennis was quite clear that he wanted active faculty

            11   involvement, and I wanted that, and that was another thing

            12   that, you know, made me feel that Dennis was a strong

            13   candidate.  And, indeed, not only did the Committee recommend

            14   Dennis but I recall going to Lee and saying, you know, I'm

            15   really impressed with Dennis, I think he would be an excellent

            16   Dean of Admissions.

            17   Q    Professor Lempert --

            18   A    Yes.

            19   Q    -- was the purpose of the search that you conducted as

            20  part of the ad hoc committee in 1990-91, was the purpose to

            21  find someone who would continue operating the Admissions Office

            22  in the way in which it had been operated previously while Allan

            23  Stillwagon was the Director of Admissions?

            24   A    No, if anything the purpose was just the opposite, to get

            25  somebody to make changes in our admissions process, and the way








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     93

             1  the office had been operated.

             2   Q    Professor Lempert, let's turn to your service on the

             3  Faculty Committee during the '91-92 academic year --

             4   A    Yes.

             5   Q    -- when you were the chair of that committee.  Do you

             6  recall whether -- let me ask you this:  Is the Faculty

             7  Admissions Committee a standing committee at the law school?

             8   A    It is.

             9   Q    And what does that mean?

            10   A    Well, it means that there doesn't have to be a decision

            11  every year about whether we should have a committee like that.

            12  It is a committee that is appointed each year regarding --

            13  filling a very important function.

            14   Q    But during the 1991-92 academic year, did the Admissions

            15  Committee have a particular charge?

            16   A    Yes, it did.  It's special charge was to rewrite,

            17  rethink, redo the admissions policy for the law school.  And

            18  Dean Bollinger told me that, and we discussed it.  We had a

            19  number of concerns.  One of the concerns, we just changed that

            20  procedure to make things more effective.  Another is we had

            21  really not gone back and redone our policy after Bakke, and we

            22  wanted to be certain as a law school that the policy was a

            23  constitutional policy.

            24   Q    Was the re-conceptualization of admissions or the charge

            25  of the committee that year limited to thinking about questions








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     94

             1  about questions of racial diversity or did it deal with

             2  admissions more generally?

             3   A    No, it was never expressed in terms of racial diversity.

             4  It was what kind of admissions system we wanted to present to

             5  the faculty.

             6   Q    Who were the other members of that committee if you

             7  recall?

             8   A    As I recall there was Don Herzog, and Don Reagan. Jeff

             9  Lehman was a member.  Dennis Shields was a member, ex-officio.

            10  I feel I'm forgetting the name of one person that was on the

            11  committee at that point.

            12   Q    Was Ted Shaw a member --

            13   A    Ted Shaw, yes.  Ted's not on the faculty any more.

            14   Q    Other than Dennis Shields, you said was an ex-officio

            15  member, were the other members of the committee that you've

            16  identified, were they members of the law faculty?

            17   A    Yes, they were all members of the law faculty.

            18   Q    How often did the committee meet?

            19   A    My best recollection is somewhere between seven and

            20  twelve times during the course of the year.  And I think as I

            21  think about it, probably closer to the twelve than to the

            22  seven.

            23   Q    Did this committee ultimately propose a written

            24  admissions policy to the law faculty?

            25   A    Yes, we did.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     95

             1   Q    As that policy adopted?

             2   A    Yes, it was.

             3   Q    Was there actually a meeting of the faculty in which the

             4  full faculty considered the report proposed by this committee?

             5   A    There was.

             6   Q    Did you attend that meeting?

             7   A    I did.

             8   Q    Do you recall anything about the discussions?

             9   A    There was a general discussion.  I can't tell you that I

            10  recall all the details or who said what exactly, but I know it

            11  wasn't a rubber stamp.  It went on for awhile.  There may have

            12  been some amendments suggested though I don't recall that and

            13  if there were, they would have been defeated because as I

            14  recall the policy that was adopted by the faculty was the

            15  policy that we submitted to them.

            16   Q    Do you recall any amendments that were suggested?

            17   A    No, I don't.

            18   Q    Who is it as a practical matter that sets law school

            19  policy?

            20   A    As a practical matter at least in the area of admissions,

            21  and in most areas I should note, it is the faculty.

            22   Q    To your knowledge, has the 1992 policy that your

            23  committee drafted and was adopted by the faculty has that been

            24  changed or modified by the faculty in any way to your

            25  knowledge?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     96

             1   A    I have no knowledge of any changes that have been made.

             2   Q    I'd like to turn to the process of putting this document

             3  together.  How was it that this committee operated in terms of

             4  drafting the policy?

             5   A    Let me go back and just tell you a little bit how we

             6  operated in generally and then we'll get to that because our

             7  sole mission was not to draft a policy.  We were also working

             8  with Dennis in process, if you will, to redefine how we were

             9  working in admissions With respect to the policy we had I'm

            10  sure one maybe even two preliminary discussions about just what

            11  we wanted to accomplish in this policy.  But at some point

            12  rather early I drafted a draft, an admissions policy which

            13  tried at the same time to both cap So at that point we then

            14  went through a series of reiterations.  So we would meet again

            15  and we would discuss -- at least several times we went

            16  basically line-by-line through what had been written and talked

            17  about the various policy issues that the different sentences in

            18  the draft policy raised, and decided that it was unclear, we

            19  would have to rewrite to be more clear, decided it was a bad

            20  policy, decided we shouldn't say something because it wasn't

            21  what we believed.  So we reached a lot of different conclusions

            22  and ultimately came up with a policy which we all agreed on and

            23  which we presented to the faculty that we adopted.

            24   Q    You said you went through a number of reiterations of the

            25  earlier draft along the way to the final policy?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     97

             1   A    Yes.

             2   Q    I'd like to actually now talk to you about that policy.

             3             MR. GOLDBLATT:  Your Honor, I had originally thought

             4   about doing a detailed walk through the policy.  I think the

             5   Court has seen the document a fair amount, and I'll just touch

             6   on the highlights --

             7             THE COURT:  Great.  I've read it.  I can't even tell

             8   you how many times now.

             9             MR. GOLDBLATT:  I'll just touch on a few highlights.

            10  BY MR. GOLDBLATT:

            11   Q    First of all, if you could turn to what has been marked

            12  as Exhibit 4.  Professor Lempert, the policy begins by saying,

            13              "Our goal is to admit a group of students who

            14              individually and collectively are among

            15              the most capable students applying to American law

            16               schools in a given year."

            17   A    Yes.

            18   Q    Can you describe what these types of overarching goals of

            19  the policy were?

            20   A    Well, the overarching goals in that sense are that we

            21  seek at the same time to admit students who have a really fine

            22  capacity for the study of law.  And individually, we're sure

            23  can master that study.  And, indeed, individually are

            24  outstanding as we look at applicants in our pool, but at the

            25  same time we're more than admitting individuals, we're








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     98

             1  admitting a class. And we're very sensitive, or at least when

             2  we wrote this policy wanted our admissions officer to be very

             3  sensitive to that dimension.  To realize that in many way that

             4  it's synergy from getting people and the whole can be greater

             5  than the sum of its parts.  So we wanted to have that diversity

             6  of backgrounds, and experiences, interests, and the like.  And

             7  so we were trying in a sense to maximize two different goals at

             8  the same time.

             9   Q    The policy goes on to say that there are, "alumni who are

            10  esteemed legal practitioners, leaders of the American Bar,

            11  significant contributors to legal scholarship."  Has that been

            12  your experience at the law school that that's been the case?

            13   A    Yes, we're exceedingly proud of our alumni.  You know,

            14  they range from branch -- Ricky Atlee (sp) who is an alumni.

            15  Another who was esteemed in another way. We've had some very

            16  distinguished judges.  Ones that come immediately to mind are

            17  Harry Edwards on the D. C. Circuit.  Amalya Kearse on the

            18  Second Circuit. Robert Webster, the president of the Michigan

            19  Bar.  Mayer Readon of Los Angeles is one of our alumni.

            20  Clarence Darrow, of course, is perhaps our most celebrated and

            21  best known alumni.  And then we have lots of other people who

            22  the world doesn't care about in the same way, but we know

            23  about, and we're exceedingly proud of.  They range from people

            24  in a small community, the upper peninsula and are sort of the

            25  law for that community.  And people who are -- I remember in








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     99

             1  1970, going to Mississippi and starting law firms that were

             2  open to people of all races.  People who are senior partners at

             3  major law firms, but who take their responsibilities as

             4  professionals beyond simply serving law practice, but serve the

             5  bar and others.  So, yes, we're very proud of our alumni.

             6   Q    The policy says that law classes depend on preparing

             7  articulate students.  Do you see that at the bottom?

             8   A    Yes.

             9   Q    Is it your experience in the classroom that it matters

            10  what happens in the classroom who the students are?

            11   A    It matters a great deal.  If you have a class where

            12  students are widely, who are prepared, it can go like this

            13  (indicating) and everybody, you know, finds it interesting. If

            14  students aren't that way, then the class can fall flat.

            15   Q    And in terms of life of the law school outside of the

            16  classroom, for that purpose does the mix of students matter?

            17   A    If anything it makes more important outside the classroom

            18  than is inside the classroom because students have so many

            19  interests which intersect the academic which we don't deal with

            20  class.  If you just came to Michigan you would see probably

            21  talks, several talks by very interesting people every week some

            22  of whom have been brought by the school, but some of them are

            23  brought by student groups or at the request of students.

            24             We have a number of journals.  And I think now we

            25   can say most of our journals have been at the instance of








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     100

             1   students saying we would really like to start a journal on

             2   this particular topic.  We have moot court.  I know in the

             3   first year in particular our students are encouraged to form

             4   study groups so they teach others if you will.

             5              So, yes, having that kind of mix, having people

             6   with different views, having capable students is quite

             7   important outside the courtroom.

             8   Q    I'd ask you to turn to the third page of the policy.

             9   A    Yes.

            10   Q    It says right at the top,

            11             "We begin with the individual and the goal of

            12   maximizing competence."

            13   A    Yes.

            14   Q    "Our most general measure, and for some students our only

            15  good measure, of the likelihood of a distinguished legal career

            16  is success in law school as operationalized by graded law

            17  school performance."

            18   A    Yes.

            19   Q    "Our most general measure predicting graded law school

            20  performance is a composite of an applicant's LSAT score and

            21  undergraduate gradepoint average (UGPA) (which we shall call

            22  the `index'."

            23             Do you see that?

            24   A    Yes.

            25   Q    I understand that the Intervenors, counsel for the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     101

             1  Intervenors has submitted an expert report that you have

             2  drafted relating to the extent to which one can predict a

             3  distinguished legal career based on your graded law school

             4  performance.  I won't be asking you about that today.  But I

             5  would like to ask you about the extent to which as you

             6  understand it the index as described here does predict graded

             7  law school performance.

             8   A    Well, actually we have sort of a precise measure in the

             9  last sentence of that paragraph, not total graded law school

            10  performance but in terms of first year gradepoint average.  At

            11  the time we wrote this policy and we looked back for three or

            12  four most recently admitted classes, it explained an average

            13  twenty-seven percent of variance in first-year grade

            14  performance.

            15   Q    Professor, I understand you are a professor of sociology,

            16  but in layman's terms can you describe what it means to explain

            17  twenty-seven percent of the variance in graded performance?

            18   A    Well, I'll do my best.  It's not exactly a lay concept.

            19  Suppose you were trying to predict what grade every student

            20  would get during their first year in law school.  This is after

            21  they've finished their first year. So you're sort of predicting

            22  backwards. You don't know so it's like a prediction, but you --

            23  you don't know. And you at the end of this time you're going to

            24  judge your success in predicting grades by each student.  You

            25  take your prediction and you subtract from it, what the actual








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     102

             1  grade point average was.  And then you square which gets rid of

             2  minus signs and some other statistical virtues.  And you get a

             3  prize, and you do your best.  The closest you came, the

             4  smallest of that sum of square was.  And you said, can you tell

             5  me anything to help predict.  And the person who is playing

             6  this game with you, well, I'll tell you what the average grade

             7  in the class was, 3.25.  Well, if you want to minimize that sum

             8  of squares, you would predict for every students that the

             9  person got a 3.25.

            10             Now, suppose you said tell me, that's not enough.

            11   And they said, well, I'll tell you what the GPA was, and I'll

            12   tell you what their undergraduate and LSAT score was.  I'll

            13   tell you the index score.  At that point you go to your

            14   computer and you run a regression analysis and rather than

            15   predicting the average for each student you predict an average

            16   based on your index score.  Well, you did twenty-seven percent

            17   better.  In other words, when you talk about explaining

            18   variance, you're going to explain twenty-seven percent of the

            19   difference between what they actually and what you predicted

            20   than you would if you just use the average.  About

            21   seventy-five percent, or three quarters, of course, would be

            22   completely unexplained, being no help in doing that.

            23             I hope you got that.

            24   Q    So -- well, maybe you can help in this way.  How good a

            25  prediction in lay terms is a prediction that explains








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     103

             1  twenty-seven percent of the variance?

             2   A    How good a prediction?  As predictions of this sort go,

             3  it's not bad.  In other words, as socio-scientists try to

             4  predict things for tests, you know, that's the kind of a test

             5  that one would use in the admissions process if only what you

             6  wanted to do was predict first-year grades.  But in terms of

             7  what you might want as a lay person which is to really know you

             8  don't know an awful more than you do in using that as your sole

             9  measure.

            10   Q    Okay.  The policy goes on and I think we'll save the

            11  line-by-line recitation.  It goes on to describe that graded

            12  test scores are relied upon and it sets out reasons why one

            13  needs to look beyond just this index score?

            14   A    Yes.

            15   Q    Are you familiar with the first of the two reasons given

            16  for looking beyond the index score, just in general terms?

            17   A    What page are you now?

            18   Q    Let's turn to --

            19   A    Would that be page 8?

            20   Q    Yes, at the bottom of page 8.

            21   A    Okay.

            22   Q    It says, "

            23              "As we have noted, some students will qualify for

            24              admission despite index scores that place them

            25              relatively far form the upper right corner of the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     104

             1              grid."

             2   A    Right.

             3   Q    "There are two principal reasons for such admissions."

             4   A    Yes.

             5   Q    Describe it in general terms.

             6   A    Right.  The first is that we say there's a reason to be

             7  skeptical of an index score based predictions.  Some people can

             8  have a history as the example that follows illustrates of

             9  really out-performing what their index predicts.  And if

            10  somebody, for example, did much better in undergraduate school,

            11  they would have predicted on the basis of SAT since there's

            12  this test-taking correlation you would expect them to do much

            13  better in law school than you might predict on the basis of

            14  their LSAT.  So these are other aspects if the undergraduate

            15  record suggested.

            16   Q    And this is just in the most general terms, there's also

            17  a second reason given in the policy?

            18   A    Yes, there is.

            19   Q    And what's that?

            20   A    Well, the second reason -- let me see if I can get the

            21  exact language so I can -- this is on page 9.  It says,

            22             "The second sort of justification for admitting

            23              students with indices relatively far from the

            24              upper right corner is that this may help achieve

            25              that diversity which has the potential to








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     105

             1              enrich everyone's education and thus make a law

             2              school class stronger than the sum of its parts."

             3              And this is what I was alluding earlier when I was

             4   talking about admitting a class as an entity, as a whole in

             5   which you're looking for people with reenforcing strengths.

             6   You're looking for people with different backgrounds, and the

             7   like.

             8   Q    Okay  I apologize for jumping around here in the policy,

             9  but would you just turn back to page 6 for just a second?

            10   A    Yes.

            11   Q    It says here,

            12             "The preceding paragraph corresponds to the way

            13              admissions decisions seem to have been made for

            14              some time" ....

            15   A    Yes.

            16   Q    And without really going through the preceding paragraph,

            17  does it describe more or less the point you just made?

            18   A    Yes and no.  This talks about this other policy which I

            19  said I also chaired when we wrote it.  And this was the pool.

            20  The pool system as I recollect was an effort to get away from

            21  sort of reliance on just index scores, not that we ever did

            22  that, but I think it was the sense of the faculty in the '70s

            23  we might be doing to much of that.  And the point of the pool

            24  system was that we would sort of admit half of its number of

            25  admittees we needed to get our class based on their index








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     106

             1  scores.  So if we had a yield rate of fifty percent, or -- we

             2  might admit twice one eighty.  And do that on the basis of

             3  index scores and then we would admit the other half, we would

             4  create a pool which was twice as large of the number of

             5  admissions we needed to make.  And we would tell our dean of

             6  admissions forget about index scores, don't even look at them,

             7  just look at the other factors that makes this person

             8  interesting.

             9             So in that sense is what we were doing and we were

            10   trying to really bring into our admissions system a neglect,

            11   if you will, of the numbers, a blindness, in favor of

            12   diversity interest and the like.

            13             But, in fact, the current policy even gets away from

            14   that. It is a much more whole person.  We don't say even at

            15   the top you should be admitting people automatically.

            16   Q    Okay.

            17   A    So it's doing what we always did in the sense, what we

            18  were concerned about so I think it's really important --

            19   Q    So is there a sense in which this policy as you

            20  understand it, it represented change from the pool system from

            21  the 1970s that you had earlier drafted?

            22   A    It represents a major change.  It abolished the pool

            23  system.  This is a real break here.

            24   Q    If we could turn to page 7 of the policy.  In the bottom

            25  here it says,








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     107

             1             "In the recent past, up until about two year ago,

             2   this discretion" -- I think the discretion they're talking

             3   about is the discretion to look at individual files?

             4   A    Right.

             5   Q    "This discretion was exercised almost entirely by the

             6  Dean of Admissions and his staff with little formal input from

             7  the faculty."

             8   A    Let me just correct what you said, and I disagree to.

             9             The discretion of looking at individual files, we

            10   were trusting this person to read the file and decide who got

            11   in on the basis of this file.

            12   Q    Okay.  So this reference here where it says,

            13             "Up until about two years ago, this discretion was

            14              exercised almost entirely by the Dean of

            15              Admissions" ....

            16   A    Yes.

            17   Q    Who's referred to there?

            18   A    That's Allan Stillwagon.

            19   Q    And it goes on to say,

            20             "This sometimes led to faculty complaints about

            21              admissions decision making and led our previous.

            22              Dean of Admissions to complain that he often felt

            23              that he did not know exactly what kinds of

            24              applicants the faculty wanted to attract."

            25   A    Yes.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     108

             1   Q    And it says, "during the last two years" ...

             2   A    Yes.

             3   Q    Can you describe, just to put this in time, what are

             4  those two years that are being described here?

             5   A    That would be I believe, 1990-91, and '91-92.

             6   Q    Okay.  And during 1991 again, who was running the

             7  Admissions Office?

             8   A    Sue Eckland.

             9   Q    And then during the '91-92 year who was running the

            10  office that year?

            11   A    That is Dennis Shields' first year.

            12   Q    That year you were considering this policy?

            13   A    That was the year we were considering this policy.

            14   Q    It goes on to say, on the bottom of page 7, the top of

            15  page 8

            16             "During the last two years, the Dean of Admissions

            17              has consulted with the faculty on a portion of the

            18              admissions decisions."

            19   A    Right.

            20   Q    "This has allowed the faculty as represented by its

            21  admissions committee to tell its Dean of Admissions how a mix

            22  of faculty evaluate the different kinds of strengths and

            23  weaknesses that are found in applicant files."

            24   A    Yes.

            25   Q    Is faculty involvement in the admissions process in your








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     109

             1  view something that's important?

             2   A    As I said when I was talking about why I was so impressed

             3  with Dennis, I think it's very important.  I think it really

             4  has a major effect in sort of keeping our admissions process in

             5  line with faculty, the faculty sense of the kind of students we

             6  want.  And I think it also helps the faculty to get a better

             7  sense of what's going on in that area.  And I -- yeah, I think

             8  it's very healthy.

             9   Q    And as you understand the way the law school operated

            10  since the adoption of this policy has that, in fact, taken

            11  place?

            12   A    My understanding of the faculty does regularly read a

            13  selection of files.

            14   Q    Now, I'd like to turn the point that I jumped to earlier

            15  which is the reasons the policy describes.  I think you

            16  described the first reason.  Let's just turn to the second.

            17  It's at the bottom of page 9.

            18             "The second sort of justification for admitting

            19              students with indices relatively far from the

            20              upper right corner is that this may help

            21              achieve that diversity which has the potential

            22              to enrich everyone's education and thus make a law

            23              school class stronger than the sum of its parts."

            24   A    Yes, that's right.

            25   Q    "In particular we seek to admit students with distinctive








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     110

             1  perspectives and experiences as well as students who are

             2  particularly likely to assume the kinds of leadership roles in

             3  the bar and make the kinds of contributions to society

             4  discussed in the in the introduction to this report."

             5   A    Yes.

             6   Q    What part of the report is being referred to here?

             7   A    The very introduction paragraph which I think we went

             8  over as I recall.

             9   Q    Is that the point that's being made here?

            10   A    Yeah, it's I think reiterating again -- several parts of

            11  the policy it's reiterating.  One is the -- what we said

            12  earlier about our alumni, we want to continue to turn out

            13  distinguished alumni from the people we bring in.  And also the

            14  general value of a mix of students that you get form a

            15  distribution respective than people who all come form the same

            16  background or the same beliefs.

            17   Q    It says, "we seek to admit students with distinctive

            18  perspectives and experiences..."

            19   A    Yes.

            20   Q    What kinds of perspective and experiences?

            21   A    Lots of different perspectives and experiences.  It's

            22  hard, you know -- as a general rule you're always surprised I

            23  think by the next files that you receive.  We've had people --

            24  I remember one class had a Gold Medal diver from the Olympics.

            25  We've had people who run their own businesses.  We've had








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     111

             1  people -- I remember one -- actually I should tell you a store

             2  to illustrate this.

             3              I was teaching a sociology of law class some years

             4   ago.  And it was only twenty students.  And we were getting to

             5   the point we were going to talk about dispute resolutions.

             6   And I thought the best way to do this was for everybody to

             7   talk about, you know, some of their own experiences.  So I

             8   began by giving a trivial funny example of a bill dispute I

             9   had running over six months.  And I threw it open to the

            10   class, saying now what kind of disputes have you been in?  And

            11   I thought, you know, I had some older students I might get a

            12   divorce or something like that as a dispute.

            13             Well, this one student raised his hand.  He's around

            14   fifty.  I knew he was an M. D. at Michigan State.  And he

            15   said, strange you should ask.  He said but I was subpoenaed.

            16   I received a subpoena last week.  I'm being sued for two

            17   hundred and fifty million dollars.  I said, well what

            18   happened?  He said -- turned out he was the chair of the AMA

            19   Committee that had disaccredited the Puerto Rican medical

            20   school.  And the Commonwealth of Puerto Rico was suing the AMA

            21   and him personally for two hundred and fifty million dollars.

            22   I said, okay, this could happen.

            23              Then another student raised his hand and he said,

            24   you know, I have this long-running battle, it's been going on

            25   four or five years now with the FBI on a flight issue. And I








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     112

             1   said what's your flight issue?  And he said, well, I'm trying

             2   to get them to correct -- to change my file.  I said what

             3   file?  He said well they have me listed as a Communist.  I

             4   said, oh, that's wrong?  He said, well not exactly. I said

             5   what do you mean, not exactly?  He said well I really was a

             6   Communist then.  I said then well then what's the issue.  He

             7   said well they have me listed in the violent fashion and I was

             8   in the non-violent fashion of the party.

             9             So you can imagine just how this class just took off

            10   with those experiences among students in their class.  It was

            11   just terrific.  And that's the kind of thing you can do when

            12   you look beyond -- neither of this was in terms of grades as a

            13   student.  But when you bring in people with diverse

            14   backgrounds.

            15   Q    The policy actually goes on to give examples of students

            16  with particular backgrounds that the committee thought might

            17  enrich the law school?

            18   A    For examples, yes.

            19   Q    Are you familiar with these examples?

            20   A    Very familiar.  They are all cases that arose within

            21  probably the first three or four months of the committee

            22  reviewing files during that first year I chaired it.

            23   Q    How did these files come to your attention?

            24   A    Dennis said here's some issues.  I'd like to get a feel

            25  of the faculty's view on them on how to resolve these issues.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     113

             1   Q    Were they all real applicants?

             2   A    Very real.

             3   Q    Did you say they all happened in one year, they were not

             4  saved up over a number of years?

             5   A    They were in the first few months because I used them as

             6  examples and this was written long before the first term was

             7  out as I recall.

             8   Q    Can you describe for the Court what your thought

             9  processes were on Applicant X here?

            10   A    Applicant X is a very interesting applicant.  He was

            11  someone who came from Bangladesh.  He completed all his

            12  pre-college work there, and then gone to Harvard.

            13             THE COURT:  You don't have to go through it.  We've

            14   been through it many, many times.  I probably have it

            15   memorized.

            16             THE WITNESS:  You're quite familiar.

            17   A    Let me just tell you my thought process --

            18             THE COURT:  I think that's what he's asking.

            19   A    My thought process was here was somebody who had by my

            20  standards -- and I think the committee shared this -- a very

            21  low undergraduate gradepoint average.  So low it almost be

            22  disqualified.  And a not very good LSAT score.

            23             Now, our policy even though we value diversity

            24   highly, has as a bedrock that we do not intend our Admissions

            25   Officer or the faculty to admit anybody who does not have a








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     114

             1   very high chance of successfully competing and completing our

             2   program.  And these test scores at this level raised some

             3   issues about that.

             4             So the question faced here was not was this person

             5   interesting and diverse, it was can we admit this person

             6   consistent with our policy and we really struggled about what

             7   the meaning of these test scores was.  Eventually we decided

             8   to admit him because he had some other things in the file.

             9   First of all, although his academic average was low, this had

            10   been achieved while doing an extraordinary amount of energy

            11   and extracurricular activities.  But beyond that he had

            12   references from people like Ken Prewitt who is the current

            13   director of census, Derek Bok, former president of Harvard,

            14   which said things about his intellectual capacity.  And we

            15   were convinced that despite his testing he was someone who did

            16   have just the "smarts" if you will, to succeed at Michigan.

            17   Q    As you understand this policy is the Director of

            18  Admissions authorized to offer admission to someone who he or

            19  she believe is incapable of succeeding academically at the law

            20  school?

            21   A    Absolutely not.  I think that would violate our policy.

            22   Q    Does that say that in the policy?

            23   A    I think it does.

            24   Q    If you could turn to page 2.

            25   A    Where I think it says it?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     115

             1   Q    Yes.

             2   A    I believe we talk on page 2 of a minimal criterion.  And

             3  that is,

             4             "No applicant should be admitted unless we expect

             5              that applicant to do well enough to graduate with

             6              no serious academic problems."

             7             And we absolutely mean that.

             8   Q    Professor Lempert, you said that Applicant X's grades

             9  were -- I think you said so low that it would almost be

            10  disqualifying?

            11   A    Yes.

            12   Q    Is there, in fact, some numerical cut-off under this

            13  policy below which an applicant can't be admitted?

            14   A    I think Applicant X tells us the answer is no.

            15   Q    So how is it that one determines whether someone is

            16  likely to do well enough to graduate with no serious academic

            17  problems?

            18   A    Well, the same way that we turn to Applicant X. If you

            19  read the whole file you consider seriously everything that's in

            20  it.  If you have extremely low index scores obviously you pay a

            21  good deal attention.  And this is the kind of issue that, you

            22  know, I think it was quite appropriate for Dennis to have

            23  brought to our committee. And it ultimately is the judgment

            24  call that's required of a wise exercise of discretion.  But

            25  that's what you do.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     116

             1   Q    Do you know if Applicant X ultimately enrolled in the law

             2  school?

             3   A    He did.  He -- as far as I know he had no serious

             4  academic difficulty.  He was an extraordinary asset to the

             5  school.

             6             There was a major conference as I recall in his

             7   third year which we had people brought in from the UN, other

             8   places that we probably couldn't have gotten but for his

             9   presence in the school.

            10   Q    If you could just turn to Applicant Z.

            11   A    Yes.

            12   Q    And, again, I think the Court is familiar with the

            13  example.  But if you could just again briefly describe what the

            14  thought process was that led you to include Applicant Z in this

            15  policy, and to believe that Applicant Z was someone who ought

            16  to be admitted to the law school.

            17   A    Okay.  Applicant Z, there was no real question about

            18  whether she had the capacity to succeed and get through law

            19  school with no serious academic difficulty.  However, her LSAT

            20  while quite good was not, you know, one of the really truly

            21  outstanding ones that we get.  And her GPA was outstanding at

            22  3.99 was at the University of Florida.  I think as a committee

            23  member I read this and looked differently and say had it been

            24  at Princeton or Emhurst or some school of that sort.  And it's

            25  not that -- you know, we might have decided not to admit her








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     117

             1  anyway, but she appeared to be a much easier case for us,

             2  certainly for me, because of the other things that she brought.

             3              Most significantly she was of a daughter of two

             4   Greek immigrants who was closely connected to this kind of

             5   ethnic community and would bring this prospective with most of

             6   us couldn't still bring to the law school.

             7             She was fluent in several languages.  And when you

             8   looked at her studies these were very broad ranging studies

             9   that showed different kinds of interest and strengths.  So she

            10   went from being an applicant in my mind who, yes, we might

            11   admit her or we might admit her or we might now.  We admit a

            12   number of people with these credentials and we don't admit a

            13   number of people with these credentials.  But this is somebody

            14   who could give the conception of the kind of class we want, is

            15   a very strong candidate for admission.

            16   Q    Professor Lempert, I'd like to turn now if I could to one

            17  particular aspect of this policy, the one that I think is most

            18  directly at issue here in this case.  That's the role of race

            19  in the admissions process.

            20   A    Yes.

            21   Q    Turn to page 12.

            22   A    Yes.

            23   Q    It says,

            24             "There is, however, a commitment to one particular

            25              type of diversity that the school has long had and








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     118

             1              which should continue" ...

             2   A    Yes.

             3   Q    "This is a commitment to racial and ethnic diversity with

             4  special reference to the inclusion of students from groups

             5  which have been historically discriminated against, like

             6  African-Americans, Hispanics and Native Americans, who without

             7  this commitment might not be represented in our student body in

             8  meaningful numbers."

             9   A    Yes.

            10   Q    As you understand this policy, and the drafter of this

            11  policy, is this concern for racial diversity something that's

            12  connected with up the broader sense of diversity you were

            13  describing a moment ago?

            14   A    Yes, it is.  I think it's part and parcel of that broad

            15  sense we want a diverse class.

            16   Q    How so?

            17   A    Well, that a very important form of diversity is what I

            18  call prospective diversity.  I think historically

            19  discrimination against minorities often bring to the law school

            20  a prospective and experiences and connections that are

            21  different from the whites who form the bulk of our admitted

            22  students.  They use -- if I can use an example form my evidence

            23  class.

            24             Minorities, for example, may be more suspicious when

            25   we talk about problems that involve cross-examining police








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     119

             1   officers, of the honesty of police, much more than whites

             2   would be.  So we would have a discussion about that.  And in a

             3   discussion people --  someone might say, you know, my uncle is

             4   a police officer, he would never do that.  And someone else

             5   might say, you know, my uncle had this happened to him or

             6   something of that sort.

             7             Also there are a lot courses that we teach because

             8   of the nature of American law in which race is a terribly

             9   important issue. Fourteenth Amendment, for example.  Sometimes

            10   in employment discrimination.  And other kinds of courses.

            11   And people who come from historically disadvantaged groups not

            12   only have a different perspective but they are for

            13   understandable reasons more likely to have read widely in

            14   literatures that relate to the situation of that group.

            15   They're more likely to be sensitive to issues.  And, you know,

            16   race is a legal topic that pervades in the law school. And I

            17   tink it's tremendously, not just helpful, but important that

            18   we have real racial diversity.

            19   Q    Does the importance of this concept as you've described

            20  here today, depend on the assumption that people hold some

            21  particular set of views because of their race?

            22   A    Absolutely not.  I mean one of the interesting things

            23  about achieving what I think we probably have achieved which I

            24  call critical mass is because of the difference of views.  And

            25  differences of views are important because I think they help








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     120

             1  break down stereotypes.  And they showed that race is not a

             2  master status, but is a status that is probably -- you know,

             3  people could argue with each other and no one becomes the

             4  spokesperson I tink for the race when you have a critical mass.

             5   Q    You mentioned that this concept is important because

             6  there are a number of areas of the law that touch directly on

             7  the questions of race.  But does the concept of racial

             8  diversity matter to legal education and areas of the law where

             9  race isn't the expressed subject at hand?

            10   A    I think it definitely does.  That I think that people

            11  approach the law from different backgrounds.  And what they

            12  prone to believe or argue or, indeed, what they know about

            13  things reflect the backgrounds that they come from.

            14             And when -- where race is not a particular focus of

            15   inquiry, getting people who are diverse in this sense of race

            16   can have, you know, surprising implications.

            17             I gave my example of evidence where race is not a

            18   focus of what I teach, the rules of evidence don't talk about

            19   race in it at all, but there are a number of places where race

            20   or gender or other categories of diversity affect the

            21   prospective students bring.

            22             Or even something like commercial transactions, or

            23   bankruptcy.  You know, someone who is one perspective may

            24   think of bankruptcy is what happens to the little guy who owns

            25   the grocery store, where someone may think of bankruptcy as








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     121

             1   what happens to the large corporation that sells power to

             2   California Consumers.  And those are both perspectives that I

             3   think is important to have.  When you think of a bankruptcy

             4   rule I think that it has to be tested against everybody it

             5   applies to.

             6             So I do think that race -- racial diversity -- I

             7   shouldn't say race.  It's race that matters.  It's diversity

             8   which reflects racial background.

             9   Q    Professor Lempert, the policy here says in this paragraph

            10  that we've just been talking about that the,

            11             "Commitment to racial and ethnic diversity with

            12              special reference to the inclusion of students

            13              from groups which has been historically

            14              discriminated against" ....

            15   A    Yes.

            16

            17

            18

            19

            20

            21

            22

            23

            24

            25






                                                                   126




         1   Q.    Is a purpose of the consideration of race in the

         2         admissions process under this policy, to remedy or

         3         make up for, compensate for, this history of past

         4         discrimination?

         5   A.    This is nowhere said in our policy.  And to the best

         6         of my recollection never suggested as a reason by

         7         anybody on the committee.

         8   Q.    And what is the relevance of this historical

         9         discrimination?

        10   A.    The relevance of the historical discrimination it

        11         is, I think, that the groups that we identified this

        12         morning have a special experience.

        13                        I think having been through that

        14         process, and also the fact that a lot of this

        15         historical discrimination still lingers in society.

        16         It affects, as I say, where people are coming from

        17         and what prospectives they have.

        18   Q.    The policy identifies these three groups expressly?

        19   A.    Yes.

        20   Q.    Are there other groups in American society that the

        21         committee sought and have been subjected to

        22         discrimination in this country?

        23   A.    At this point it's so distant that I don't want to

        24         say the committee, but let me just speak for myself.

        25   Q.    Fair enough.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   127




         1   A.    I think we share as humans, yes, it's obvious.  I

         2         mean what immediately comes to my own mind here are

         3         Jews, Asians and other groups.

         4   Q.    Well, why aren't those groups listed here?

         5   A.    Well, one reason they're not listed and probably the

         6         major reason that our admissions processes admit

         7         relatively large numbers of people from these

         8         groups.

         9                        And there was no need to mention as a

        10         group that we sort of--that diversity, we're getting

        11         diversity of a sort, let's put it that way.

        12   Q.    Without conscientiously considering that status?

        13   A.    Yes, without considering that status.  But I should

        14         also note that this idea of conscious consideration,

        15         people come and I think our Admissions Office and I

        16         know really looks at people as whole people and

        17         reads the files.

        18                        And, you know, you read a file of an

        19         Asian American, you may not be conscientiously

        20         considering it, but you know even from the name that

        21         you're dealing with an Asian American in the

        22         interview.

        23                        And that file may talk about some

        24         aspect, or even a Jew.  I mean I remember one

        25         student or whatever I had, but I remember hearing





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   128




         1         about a dyslexic rabbi who we admitted.

         2                        But clearly the Admissions officer

         3         knew they were dealing with that, so, yes, in a

         4         certain sense, not conscientiously considering.  But

         5         another sense talking about the whole person you're

         6         shaping a class as you go along.

         7   Q.    The next paragraph here says that, "Over the past

         8         few decades the law school has made special efforts

         9         to increase the numbers of such students in this

        10         school.

        11                        We believe that the racial ethnic

        12         diversity as a result has made the University of

        13         Michigan Law School a better law school then it

        14         could possibly have been otherwise."

        15   A.    Yes.

        16   Q.    "By enrolling the critical mass of minority

        17         students, we ensure there is a unique contribution

        18         to the character of the school."

        19   A.    Yes.

        20   Q.    I want to ask you about the term critical mass, I

        21         think you mentioned it a moment ago?

        22   A.    Yes.

        23   Q.    As you understand the term critical mass, is that

        24         another word for quota?

        25   A.    No, it's not.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   129




         1   Q.    How not?

         2   A.    In some ways it's almost the opposite of a quota.  A

         3         quota is a hard number and says no more, or can say

         4         no less.  Critical mass is a concept, an idea that

         5         we want enough students to bring this diversity to

         6         the school, to individual classes.

         7                        And we want enough students so that

         8         every minority student doesn't feel that they are

         9         speaking out for their--you know, some of their race

        10         is being evaluated everytime they speak.

        11                        We want enough students so that there

        12         are differences of opinion, and that people realize

        13         that not everybody, you know, that there's a range

        14         of people in different areas.  But there's no hard

        15         and fast number on what that is.

        16   Q.    Do you believe that, as a teacher, do you believe

        17         the enrollment at the law school now approximates

        18         critical mass of minority students?

        19   A.    I think we have a critical mass of minority

        20         students.  And I think it's really healthy for the

        21         law school.  Let me just give you an example of what

        22         one gets out of the critical mass, and what evidence

        23         that one has.

        24                        As I mentioned that we have a series

        25         of journals in the law school, a number of which are





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   130




         1         student initiated.  Well, one of our most successful

         2         of these recently created journals in the last five

         3         to ten years, is a journal on race and law.

         4                        And this was something which students

         5         came to us with the idea to initiate.  And it wasn't

         6         that the students that came were all minority, they

         7         weren't.  There were white students, as well as

         8         minority students, who were part of this effort and

         9         remain part of the effort.

        10                        But I'm absolutely confident without

        11         a critical mass of minority students, we would not

        12         have that journal.  They were the driving people,

        13         they got whites who were interested in these issues

        14         to join them.

        15                        And so all the students, and the

        16         school's itself, I think, reputation lies benefits

        17         from having a critical mass.  And we have enough

        18         students so that those kinds of things happen today.

        19   Q.    Professor Lempert, is race as you understand it,

        20         what the Admissions Office thought of this policy

        21         now, is race conscientiously considered in the

        22         admissions process?

        23   A.    I believe it is an element.  Yes, it is an element

        24         in the decision to admit students.

        25   Q.    Is there a point that, as you understand it, when it





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   131




         1         would no longer be appropriate to consider race

         2         conscientiously in making admission decisions?

         3   A.    Yes, we consider race to the extent it's needed to

         4         get a critical mass and not further.  Some students

         5         we admit today who are of minority races and who

         6         lend this kind of racial diversity that we seek in

         7         the school, and it could be that it doesn't--the

         8         Admissions Office doesn't even think about race

         9         issues.

        10                        You just kind of look at the file and

        11         before you consider what race it is, gee, what a

        12         strong applicant.

        13                        And then reads about activities or

        14         something, and this person is also a black or

        15         Hispanic or Native American when it happens.  And in

        16         that person, even today, race plays no role in the

        17         decision.

        18                        And for other people they may be like

        19         this Greek student who in the range where we admit,

        20         some people don't admit some people and that tips

        21         the ballots towards admission.

        22                        And other students who were confident

        23         or quite capable and will succeed in law school, we

        24         feel we don't quite have a critical mass and there

        25         race plays a little bit more of a role.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   132




         1   Q.    Professor Lempert, is there some mechanism set forth

         2         in this policy to ensure or to provide that race--to

         3         provide that the extent to which race is considered

         4         is no more than necessary than to achieve a critical

         5         mass of minority students?

         6   A.    Yes.  One break that this policy made with our prior

         7         policies as I have emphasized is this degree of

         8         faculty involvement.  That we believe the faculty

         9         should be in dialogue with the Dean of Admissions.

        10                        And as you'll note on page 13, the

        11         policy provides, "In the course of regular

        12         consultation as the admissions year progresses, the

        13         Dean of Admissions should keep the Admissions

        14         Committee informed of the profile of offers and

        15         acceptances to date and of the evolving make-up of

        16         the class."

        17   Q.    I'm sorry, Professor Lempert, you're reading from

        18         the bottom paragraph here?

        19   A.    Of page 13, yes, I am.

        20   Q.    Okay.

        21   A.    And I think that's a mechanism in which if the

        22         faculty Admissions Committee if the Dean of

        23         Admissions say, I'm thinking that we might add, you

        24         know, Jones to this class as opposed to Smith.

        25                        And the Admissions Committee say, why





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   133




         1         do you prefer Jones to Smith, and the person says,

         2         well, and give a whole series of reasons, one of

         3         which was race.

         4                        The Admissions Committee might say,

         5         well, you know, we think Smith is a smidgen stronger

         6         if we put race aside.  We also have a critical mass,

         7         so we're not going to give any benefit to race in

         8         the case of Jones versus Smith, we'll admit Smith.

         9         So, yes, I think there is this mechanism.

        10   Q.    As you understand the operation admissions at the

        11         law school, does the Admissions Office, in fact,

        12         carry out this policy?

        13   A.    To the best of my knowledge the Admissions

        14         Office--we have an excellent Dean of Admissions, and

        15         I'm sure she faithfully tries to carry out this

        16         policy.

        17   Q.    Have you ever had the sense that the minority

        18         enrollment at the law school is something that

        19         exceeds a critical mass of minority students?

        20   A.    No.  It's sort of the opposite.  For a long time I

        21         felt maybe we didn't have a critical mass, but I

        22         think we do now.

        23   Q.    The policy goes on on page twelve, it says, "While

        24         one of our goals is to have substantial and

        25         meaningful racial and ethnic diversity."





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   134




         1   A.    Yes.

         2   Q.    "We do not, as we have already indicated, mean to

         3         define diversity solely in terms of racial and

         4         ethnic status".

         5   A.    Yes.

         6   Q.    What does that mean?

         7   A.    What it means is there are many kinds of diversity

         8         and that every student competes with every other

         9         student as a whole person has a file.

        10                        Just to give a specific example.

        11         Suppose that that Pakistani that we used as an

        12         example, were competing for the last lot with a

        13         member of a historically discriminated against

        14         minority.

        15                        I, at least, a member of the

        16         faculty's Admissions Committee would almost

        17         certainly vote to admit the Pakistani, even though

        18         the member of the minority probably would have

        19         better credentials in terms of index scores than the

        20         Pakistani.  Because this person is so unique in what

        21         he brought.

        22                        So, there is this competition there

        23         and race is a factor.  And a fact of the matter it's

        24         by no means trump.

        25   Q.    The next sentence here in the same paragraph it





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   135




         1         says, "Nor are we insensitive to the competition

         2         among all students for admission to the law school."

         3   A.    Yes.

         4   Q.    As you understand the policy, do all applicants, in

         5         fact, have the opportunity to compete for admission?

         6   A.    As I understand our policy, our Dean of Admissions

         7         or Admissions staff literally reads every file.

         8         That no file, no matter what they present, is

         9         dismissed without attention to what it looks like.

        10                        And then I assume there's a

        11         preliminary screening, people just don't seem like

        12         they're going to make it.

        13                        And, yes, every student has an

        14         opportunity to have their case considered along with

        15         every other student.

        16   Q.    Would it surprise you if under a policy that

        17         operated like this one, it turned out that in the

        18         aggregate there are some groups who say grades and

        19         test scores on average were high or lower than other

        20         groups?

        21   A.    No, actually the contrary.  It would surprise me if

        22         there were no--if that was not the case.

        23   Q.    Why is that, Professor Lempert?

        24   A.    Can I use the board here, I can probably illustrate

        25         it probably than just talk.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   136




         1   Q.    Sure.

         2                        THE COURT:  We'll move it on that

         3         side.

         4   A.    The reason is that if we're talking about index

         5         scores and we're talking about how to divide by race

         6         in any other grouping, that's a function of the pool

         7         which we have to choose from.

         8                        Let me just try to illustrate this.

         9         Let's put index score along this line, or this axis,

        10         and this will be numbers of applicants.  And I'll

        11         just select one as a basis, I'll select blacks as an

        12         illustrated example.

        13                        That the black applicant pool we have

        14         would be distributed somewhat like this.  And now

        15         let's look at the white applicant pool.  White

        16         applicant pool might be distributed somewhat like

        17         this.

        18                        Now, this is just schematic, they

        19         would be much closer than this, but I'm illustrating

        20         it for illustrating purposes.  And this reflects we

        21         have many more white applicants than black

        22         applicants.

        23                        But it also reflects in our applicant

        24         pool, the average of our white applicants is higher

        25         than our black applicants.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   137




         1                        Now, let's suppose just for fun that

         2         we were to admit students without any attention of

         3         race at all.  We did not consider race in all the

         4         admissions, and we did not consider the LSAT,

         5         undergraduate grade point.

         6                        We just said, we're going to only

         7         look at other factors and let's make it real simple.

         8         All we're concerned about is leadership ability.

         9                        And your leadership ability is

        10         probably distributed similarly with the two races,

        11         blacks and whites, as far as lots of opportunities

        12         arise intra-racial contents.

        13                        So what would we find?  We find that

        14         we would be admitting people down here, you know,

        15         from all over this place.  More or less randomly,

        16         assuming that there's no correlation for the moment.

        17         And then we would be admitting whites similarly.

        18                        So, without any attention of race,

        19         the average index score of our black admittees would

        20         be right here.  The average index score of our white

        21         admittees would be right here.

        22                        So, we have what is a very

        23         substantial difference in index scores, in an

        24         admission system that was completely color blind and

        25         completely LSAT index score blind.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   138




         1                        Now, we can go beyond that and we can

         2         say, suppose that this characteristic or set of

         3         characteristics we were admitting on, was in some

         4         way correlating with index scores.  Not race, but a

         5         list of index scores.

         6                        Let's suppose that people who intend

         7         to be leaders within groups, are people who are

         8         making it pretty well academically, so they have

         9         time to be leaders.

        10                        So then you get a somewhat different

        11         pattern.  But you have many more people within both

        12         groups who would be skewed towards the top index

        13         scores of the distribution for their group.

        14                        Now, at this point what this would

        15         do, is over the random kind of sample it would raise

        16         the average score.  But it would raise them both,

        17         and again you would get this huge difference.

        18                        And then finally, suppose that we

        19         were going to consider LSAT scores, again forget--go

        20         back to the original if you can in your mind.

        21                        We're going to consider the LSAT

        22         score and we're only going to give that a very, very

        23         small weight.  I going to make that kind of a tie

        24         breaker, meaning people would otherwise look as

        25         good.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   139




         1                        And we look within these groups and

         2         we see lots of leadership--and now I'm getting back

         3         where we're also concerned with diversity.

         4                        So, at this point we're bringing back

         5         in race and LSAT as factors that we're to consider,

         6         but we're not giving great weight to index scores.

         7         But we're going to make it a tie breaker.

         8                        We have all of these people who look

         9         like they're equivalent leaders here, and if it's a

        10         tie breaker we're going to admit the people at the

        11         top end.

        12                        So again we get this large disparity

        13         in index scores.  It would look like that we were

        14         focusing tremendously within each group on LSAT and

        15         index scores and have the difference.  When, in

        16         fact, we just need to use the tie breakers.

        17                        So, it's the statistics that simply

        18         show differences in index scores and odds of

        19         admission and what have you.

        20                        You can't on that basis alone figure

        21         out to what extent race and index score plays to

        22         role, you have to understand the process by which

        23         people are admitted and how files are considered.

        24   Q.    Professor Lempert, I would like to take you back to

        25         the policy, not to detract from your art work here.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   140




         1   A.    Okay.

         2   Q.    Professor Lempert, the top of page 13 of the policy?

         3   A.    Yes.

         4   Q.    Says, "Our object in this memorandum is therefore as

         5         much to ratify what has been done and to reaffirm

         6         our goals, as it is to announce new policies."

         7                        Do you see that?

         8   A.    Yes.

         9   Q.    What's meant there?

        10   A.    What's meant there, I think, is that we had, at

        11         least in my view when I wrote this, we've longed

        12         valued diversity.  And we also longed recognizes the

        13         special kind of diversity we valued was diversity

        14         with respect to having representation by

        15         historically discriminated minorities.

        16                        And I think that's the sense, that is

        17         when I wrote it, that is the sense in which I meant

        18         this.  That we wanted to ratify our attention in the

        19         past to race for purposes of establishing a diverse

        20         law school class.

        21   Q.    I'd like to turn just for a relatively brief place.

        22   A.    Yes.

        23   Q.    To the process that led to the adoption of this

        24         final policy that's Exhibit 4?

        25   A.    Yes.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   141




         1   Q.    And you mentioned that there were various drafts

         2         that had been circulated among the committee members

         3         along the way?

         4   A.    Right.

         5   Q.    I'd just like to turn to those for the purpose of

         6         seeing some of the decisions that were made by the

         7         committee in the course of coming up with this

         8         policy?

         9   A.    Yes.

        10   Q.    You can actually turn to Exhibit 34, which Robin

        11         will hand you the binder.

        12                        THE COURT:  What exhibit?

        13                        MR. GOLDBLATT:  It's Exhibit 34, your

        14         Honor.

        15   BY MR. GOLDBLATT:

        16   Q.    Do you recognize this document?

        17   A.    This would be an earlier draft.  Maybe even the

        18         first draft of the Admissions policy in its earlier

        19         process.

        20   Q.    Do you recognize the handwriting that's actually on

        21         this?

        22   A.    I don't.

        23   Q.    Do you know how it come to be that enter would be a

        24         marked up version of the draft like this?

        25   A.    I am reasonably certain that this was, no doubt, was





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   142




         1         a copy of the policy that one of the members of the

         2         committee had, and that that committee member marked

         3         up for purpose of discussion in committee.  I don't

         4         believe it was circulated to any of us before the

         5         meeting.

         6   Q.    So, the typewritten portion would be the draft that

         7         you may have circulated, do I understand you

         8         correctly to be saying that?

         9   A.    Yes.

        10                        MR. GOLDBLATT:  At this point if I

        11         could offer Exhibit 34, your Honor.

        12                        MR. PURDY:  No objection, your Honor.

        13                        THE COURT:  Okay.  Proceed.

        14   BY MR. GOLDBLATT:

        15   Q.    Okay.  If you can turn to page nine, here.

        16   A.    Okay.

        17   Q.    And I would like to point you more to the underlined

        18         typewritten portion of this, the original draft, and

        19         essentially not to be distracted by the handwritten

        20         marks?

        21   A.    Yes.

        22   Q.    There's this heading here on page nine that says,

        23         "Non-Grid Applicants", do you see that?

        24   A.    Yes.

        25   Q.    And it says, "Bearing in mind the relationship





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   143




         1         between index scores and law school performance,

         2         particularly when students represent a large range

         3         of scores.

         4                        We propose that admissions offers be

         5         extended in such a way that about 80 percent of the

         6         matriculants are likely to have scores that appear

         7         in the upper right quadrant of the grid as defined

         8         by the previous year's grid admittees."

         9   A.    Yes.

        10   Q.    "We will call such students like their predecessors

        11         grid admittees."

        12   A.    Yes.

        13   Q.    And actually if we turn to page eleven in the carry

        14         over paragraph, it's sort of the last two lines of

        15         the carry over paragraph it says, "Non-grid

        16         admittees admitted for diversity purposes shall not

        17         exceed 20 percent of the expected matriculant in a

        18         class."

        19   A.    Yes.

        20   Q.    And does the final policy that was proposed by the

        21         committee to the full faculty, have this distinction

        22         between grid admittees that make up some percentage,

        23         and non-grid admittees that made up some different

        24         percentage?

        25   A.    No, it doesn't.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   144




         1   Q.    Do you recall how it came to be that the final

         2         policy would not have language that was here in this

         3         Exhibit 34?

         4   A.    After discussion we agreed to take it out.  I may

         5         have been the one that took the initiative on this,

         6         though I can't be a hundred percent certain at this

         7         point.

         8   Q.    And what's the reason for that?

         9   A.    I think there were a couple of reasons that we took

        10         it out.  Generally speaking, I think we did not

        11         think that putting numbers in was a good idea

        12         because of some of the suggest quotas.

        13                        And it might lead to an Admissions

        14         officer who applied it that way, and we did not want

        15         to have anything like a quota in this policy.

        16         Because the more we talked about it, the more we

        17         realized there was no magic number on one side or

        18         the other.

        19                        Beyond this, if I can talk about my

        20         own philosophy which I think changed in the course

        21         of our discussions.

        22                        We were, as I noted reading files as

        23         part of this same process that we were writing the

        24         proposal.  And when you read files, you get the

        25         feeling for the complexity of students.  And you get





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   145




         1         a feeling for the whole students and like.

         2                        And it sort of is what can I say,

         3         denumberfying, I'll have to make up a word.  You get

         4         away from this sense of rigid numbers, that you

         5         really aren't going to speak precisely to what the

         6         numbers are.

         7                        So, I think we felt that the spirit

         8         of what we were doing is much better captured than

         9         accounts for critical mass, and it could be by any

        10         numbers.

        11   Q.    If you can turn to page twelve here, I know that

        12         pages twelve and 13 may be out of order.

        13   A.    I have it.

        14   Q.    Page twelve?

        15   A.    Yes.

        16   Q.    And it's the paragraph at the bottom of this page.

        17   A.    Yes.

        18   Q.    Where it's referring to a commitment to racial

        19         diversity, do you see that?

        20   A.    Yes.

        21   Q.    And then--actually, I'm sorry, Professor Lempert.

        22         On this paragraph page twelve the sixth and seventh

        23         lines where it says it's referring to minorities

        24         that would be unable attend Michigan in numbers that

        25         are meaningful given their presence in both the





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   146




         1         nation's population and the population of Michigan

         2         in particular?

         3   A.    Yes.

         4   Q.    Now, I don't recall any reference to the nation's

         5         population, or the state's population in this

         6         Exhibit 4, the final policy?

         7   A.    That's right.

         8   Q.    Why is that?

         9   A.    We took it out, I think, for several reasons.  One,

        10         as I said, we wanted to be sure that we had a policy

        11         that was constitutional.  And we thought that we did

        12         not want to prescribe my number which was relative

        13         to the population that they were focusing.

        14                        Certainly as we discussed this more

        15         and more on education and diversity as what we were

        16         designed to promote in this policy.

        17                        The second reason again, was that we

        18         didn't want any hard and fast lines.  We really were

        19         embracing the concept of everybody competing with

        20         everybody else.

        21                        In some years it might give you

        22         representation of the proportion of the years.  It

        23         might give you something that disproportionate in

        24         one way or the other.

        25   Q.    Okay.  This version here goes on.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   147




         1   A.    Yes.

         2   Q.    In the lower end, it says, we value this commitment,

         3         you see that?  Halfway down this paragraph on the

         4         bottom of page twelve, we value this commitment both

         5         because?

         6   A.    Right.

         7   Q.    And if you read down a little bit, there's a

         8         reference to the delivery of legal services to

         9         minority populations?

        10   A.    Right.

        11   Q.    Now, I don't recall any reference to delivery of

        12         legal services to minority populations in this final

        13         policy?

        14   A.    Yes, that's right.

        15   Q.    You can just describe why it is that that's not in

        16         the final policy?

        17   A.    Yes.  Let me begin with why it is in the draft

        18         policy.  See, I wrote the draft policy.  I

        19         personally believe that one of the really happy

        20         results of our admitting as many minorities as we

        21         have over the years, is the service they do to

        22         minority communities.

        23                        And when I wrote this, I was kind of

        24         thinking of what are some virtues of the policy.

        25         But in discussion we talked about what reasons we





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   148




         1         had for the policy.  My own mind distinction between

         2         results, if you will, and reasons.

         3                        And that this was a sort of an

         4         incidental result of diversity, and not a reason for

         5         admitting minority students.  So we took it out to

         6         emphasize--again we're trying to set policy for the

         7         future type of committees and the Dean of

         8         Admissions, that whatever one feels about these

         9         issues, whether they're like me or the opposite

        10         view, that's not something that you should consider

        11         the admissions process.

        12                        In the admissions process what should

        13         be considered is the implication to race for

        14         diversity, and we don't want any confusion about

        15         that.

        16                        And that relates also I think again,

        17         to what you asked me earlier about why we took out

        18         the language about populations proportions, because

        19         again, that's not something that should be

        20         considered in the admissions process.

        21   Q.    When the policy was actually adopted by the full

        22         faculty, I think Exhibit 4 says on April 24, 1992?

        23   A.    Right.

        24   Q.    Did the full faculty have before it the earlier

        25         drafts?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   149




         1   A.    No, they did not.  The full faculty was only voting

         2         and discussing the policy as we presented it after

         3         all the refinements which occurred.

         4   Q.    Page 13 of this Exhibit 34.

         5   A.    Yes.

         6   Q.    There is this sort of handwritten in the left

         7         bracket on the paragraph in the middle of the page

         8         that begins, thus while we set no floors or

         9         ceilings?

        10   A.    Yes.

        11   Q.    And if you go down it's the last sentence here says,

        12         "Also it is important to note that in the past we

        13         seem to have achieved the kinds of benefits that we

        14         associate with racial and ethnic diversity from

        15         classes in which the proportion of African American,

        16         Hispanic and Native Americans members has been

        17         between about eleven percent and 17 percent of total

        18         enrollees."

        19   A.    Yes.

        20   Q.    I also don't recall their being numbers like that in

        21         the final policy?

        22   A.    No, there is not.

        23   Q.    Again, you just described the thought process that

        24         led to that change?

        25   A.    Again I think there are several reasons for the





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   150




         1         change.  One was the sense that numbers might be

         2         misconstrued as floors or ceilings are quoted and

         3         the like.

         4                        A second was to avoid rigidity.  I

         5         mean these numbers are here, I'm almost certain as I

         6         recall.  Because when we just look back at our last

         7         four or five years, that was the range in which

         8         admissions had existed.

         9                        Now, you know even from that there's

        10         a huge fluctuation, 17 percent is more than 50

        11         percent greater than eleven percent.  And I think

        12         that we after discussion recognized that.

        13         Recognized again we did not want any firm numbers.

        14                        And it's simply like a differential

        15         reference, we might be misleading people as to what

        16         the policy was.

        17   Q.    Professor Lempert, do you know if there were any

        18         written memoranda exchanged among committee members

        19         commenting on earlier drafts?

        20   A.    There was one that my colleague Don Regan wrote.  I

        21         don't recall any other written memoranda that were

        22         distributed, as opposed to the copies like this

        23         which we're talking points, that were brought up in

        24         discussion.

        25   Q.    You can turn to Exhibit 32.  You have that document





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   151




         1         in front of you?

         2   A.    Yes, I do.

         3   Q.    Is this the memoranda that you referred to a moment

         4         ago written by your colleague Don Regan?

         5   A.    Yes, it is.

         6   Q.    And it's addressed to a number of people?

         7   A.    Yes.

         8   Q.    Are the other members of the committee listed among

         9         the addressees?

        10   A.    Yes.

        11   Q.    If you can turn to the single spaced paragraph

        12         that's in bracket right below the Re line?

        13   A.    Yes.

        14   Q.    It says, "Rick has suggested an emendation of his

        15         memo, which removes all numbers on the target

        16         range."

        17   A.    Yes.

        18   Q.    First of all, are you the Rick who's referred to

        19         here?

        20   A.    Yes, I am.

        21   Q.    The memoranda here goes on to say, "For a variety of

        22         reasons including candor, I incline to prefer

        23         keeping the numbers and trying to explain what they

        24         really signify."

        25   A.    Yes.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   152




         1   Q.    First of all, do you know what Professor Regan--let

         2         me put it another way.  What did you understand

         3         Professor Regan to be referring to when he says that

         4         you had suggested removing the numbers on a target

         5         range?

         6                        MR. PURDY:  Your Honor, at this point

         7         I just have to object, it's going to call for

         8         hearsay.  Professor Regan is a member of the

         9         faculty, that they can call him as a witness.

        10                        Now, I believe it's calling for his

        11         testimony would be calling for hearsay.

        12                        MR. GOLDBLATT:  I thought the

        13         question was, what is your understanding as a member

        14         of the committee.

        15                        THE COURT:  Well, two things.  Number

        16         one, it doesn't make any difference what his

        17         understanding was, we can all read it.  But I think

        18         he can testify, since he was the chairman.

        19   A.    Yes, if you can repeat the question.

        20   BY MR. GOLDBLATT:

        21   Q.    My question is, was there a point at which you

        22         circulated a version of the policy that removed

        23         numbers?

        24   A.    Yes.

        25   Q.    Does that relate to the testimony you were giving





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   153




         1         earlier?

         2   A.    Yes, it does.

         3   Q.    Now, this document goes on to say, "For a variety of

         4         reasons, including candor, I incline to prefer

         5         keeping the numbers and trying to explain what they

         6         really diagnose signify."

         7   A.    Yes.

         8   Q.    You recall a discussion about this subject?

         9   A.    I have vague recollection, I believe, of the

        10         discussion.  I remember my own views as I thought

        11         about it.  I can tell you how I interpreted this, I

        12         think.

        13                        MR. PURDY:  Well--

        14                        THE COURT:  (Interposing)  Sustained.

        15                        MR. GOLDBLATT:  That's fine.  Fair

        16         enough, your Honor.

        17   BY MR. GOLDBLATT:

        18   Q.    Let me just ask you this.  The final policy in the

        19         end does not include numbers, is that correct?

        20   A.    Does not include numbers.

        21   Q.    Do you believe the final policy to be less candid as

        22         a result of the absence of their being numbers?

        23   A.    No, I think the final policy actually is more

        24         candid.  As I said, our policy, our thinking,

        25         evolved as we wrote this, and I think it's less





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   154




         1         candid.

         2                        In that should there be a year when

         3         our Dean of Admissions admits more than 70 percent

         4         minority, if that's the way things fall compared to

         5         everybody else, that is according to the policy.

         6                        Should there be a year when it's less

         7         than eleven percent, and I think putting numbers on

         8         it, in fact, would be less candid.

         9                        THE COURT:  However, you're also

        10         aware of the Bakke decision?

        11   A.    We are.  We are very aware of the Bakke decision.

        12         And one of the reasons why we did not want to put

        13         numbers on these, again I can speak personally.

        14                        THE COURT:  I understand why.

        15   A.    Is because we wanted to comply with the decision.

        16                        THE COURT:  Right.

        17   BY MR. GOLDBLATT:

        18   Q.    Professor Lempert, if you look at the last sentence

        19         of this bracketed paragraph.  Does that relate to

        20         the same point that you were making response to

        21         those questions?

        22   A.    Yes, in the sense--let me just elaborate very

        23         briefly.  We're a law faculty, we have two real

        24         experts on our committee, Ted Shaw and Don, on the

        25         constitution of law, and this is an area that all of





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   155




         1         us, I think, are very concerned in.

         2                        And we also were operating in

         3         completely good faith.  Like I said, we wanted a

         4         decision, a policy, which would be compliant with

         5         the law as we understood it.

         6                        It may well be that other people like

         7         me saw virtues in bringing diversity that were not

         8         sanctioned by Bakke.

         9                        But I think we all as we wrote this

        10         and as we discussed it, were going from the position

        11         that we had to develop a policy which was based

        12         solely on diversity, that did not give extra points

        13         for matching some proportion of the community.  Did

        14         not give extra point for turning out minority

        15         lawyers.

        16                        That a lot of people to compete with

        17         each other solely on the basis of what they would

        18         bring to the law school class, and of their own

        19         capabilities.

        20                        And so it's a little bit like a judge

        21         who might have values, if you will.  When it comes

        22         to apply the law, the judge tries to separate

        23         himself or herself from those values, and say what

        24         is compliant.

        25                        And what we were trying to do here is





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   156




         1         say, okay, we have to in good faith talk about what

         2         does diversity bring to the law school.  What do we

         3         want in the way of diversity, how does race figure

         4         in.  And I believe very much that's what we did.

         5   Q.    Professor Lempert, since the policy was adopted,

         6         have you continued to teach at the law school?

         7   A.    Yes, I have.

         8   Q.    In your experience, has this policy as its been

         9         administered succeeded in enrolling diverse classes?

        10   A.    Yes, it has.

        11   Q.    And when you say that, is that a reference only to

        12         racial diversity?

        13   A.    Our classes are diversed in many ways.  The most

        14         noticeable diversities since I began teaching was

        15         not racial diversity, but gender diversity.

        16                        There are classes with 40 or 50

        17         percent women in a class is a common experience.

        18         There is diversity of prospective in other ways.

        19                        Ironically, I believe today we have

        20         more rigorous conservatives than we've had at

        21         anytime in the law school's history, as well as the

        22         real committed liberals and maybe even a few

        23         radicals.  Probably radicals on both ends of the

        24         spectrum.

        25                        We have an active federal society at





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   157




         1         the bridge of the other end.  So, yes, there is, I

         2         think, substantial diversity of various sorts in the

         3         law school today.

         4   Q.    And has this improved the education of law school

         5         for its students?

         6   A.    I think it's done immeasurably compared to my own

         7         time in law school in the early years.  If I can

         8         give just one example of how diversity works in the

         9         law school.

        10                        Several years ago I was teaching a

        11         large evidence class in the fall term when the

        12         O.J. Simpson trial was ongoing.  And, you know, it

        13         was a God sent evidence teaching.

        14                        Not only did it raise all sorts of

        15         issues, but the students were incredibly interested,

        16         so the evidence was this very relevant topic.

        17                        So, I tried to the extent possible,

        18         if you will, sort of to teach the course, or at

        19         least large aspects of the course the basis of

        20         issues that were being raised.

        21                        And I had women and I had men, I had

        22         blacks, I had whites.  And these people all came at

        23         the issues from different ways.

        24                        As you would expect, there were many,

        25         you know, to be verbalizing women more then men,





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   158




         1         were prone to think that this was what happened was

         2         clear guilt, because it was a continuation of spouse

         3         abuse that O.J. had obviously engaged in.

         4                        And I think my male students on the

         5         whole were skeptical about making that link.  And as

         6         you might also suppose my black students were more

         7         sympathetic to O.J. than my white students.

         8                        But I had black students who thought

         9         O.J. was guilty.  I had white women who thought

        10         there really was not much a link.

        11                        And I had a real clash of opinion,

        12         people felt free to say what they felt.  I think it

        13         affected the way we analyzed the evidence rules that

        14         we were dealing with, and it just made for a

        15         terrific month of discussion.  They just resolved

        16         the case too quickly in my view.

        17                        MR. GOLDBLATT:  On that not,

        18         Professor, I have nothing further.

        19                        THE COURT:  Why don't we take our

        20         afternoon break and take about 15 minutes.

        21                             (A brief recess was taken.)

        22                         -     -     -

        23

        24

        25




                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     155

             1             (Witness resumed stand.)

             2             MR. PURDY:  May it please the Court, Larry Purdy,

             3   for the plaintiff, your Honor.

             4             THE COURT:  Thank you.

             5             MS. MASSIE:  And, Judge Friedman, I'm assuming we're

             6   going in the same order, the Inventors don't have any

             7   questions for Professor Lempert.

             8             THE COURT:  Oh, I forgot.  Thank you.

             9             MR. PURDY:  And I'm sorry.

            10             THE COURT:  And I'm sorry, too.

            11             MS. MASSIE:  Okay.

            12             MR. PURDY:  I believe that counsel referenced

            13   Exhibit 32, but didn't offer it.  So Plaintiff is going to

            14   offer Exhibit 32 at this time, your Honor.

            15             THE COURT:  Any objection?

            16             MR. GOLDBLATT:  No objection.

            17             THE COURT:  All right.  Received.

            18                  (Trial Exhibit Number 32 received into

            19                  evidence.)

            20                       CROSS-EXAMINATION

            21  BY MR. PURDY:

            22   Q    Professor Lempert, I want to -- you went over quite a bit

            23  of material this afternoon, so I'm going to jump around a

            24  little bit and I apologize, but I want to jump first to, you

            25  talked about a hypothetical Jones v Smith, and you talked about








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     156

             1  faculty involvement.  An example you gave us was one where race

             2  wasn't given ay credits after looking at the materials that the

             3  faculty would periodically use to determine they had a good

             4  critical mass so in that instance race didn't matter; do you

             5  recall that?

             6   A    Yes.

             7   Q    And, in fact, that's specifically what the policy

             8  presently says does it not on pages 12 and 13?  Let me just put

             9  it up here for you.

            10             It certainly talks about the interest that the

            11   school has, the importance interest that the school places on

            12   achieving a critical mass of under-represented minority

            13   students on page 12; you recall that.

            14   A    Yes.

            15   Q    And, in fact, critical mass is a phrase that you're

            16  responsible for; correct?

            17   A    I think so, yes.

            18   Q    All right.

            19             THE COURT:  Well tell me, is that your --

            20             THE WITNESS:  I'm pretty sure.  But as I say it

            21   follows discussion.  I don't want to --

            22  BY MR. PURDY:

            23   Q    I'll tell you what, we'll give you a chance later in the

            24  testimony to explain where that phrase comes from.  We'll get

            25  back to that.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     157

             1             THE COURT:  It's one of my notes.

             2             MR. PURDY:  We'll get to it, your Honor.

             3  BY MR. PURDY:

             4   Q    In any event, the school clearly has an interest, an

             5  abiding interest as stated in the policy of enrolling a

             6  critical mass of under-represented minority students; does it

             7  not?

             8   A    That is one goal of the policy, yes, sir.

             9   Q    And the example you used I found fascinating because

            10  Jones v Smith was an example where you said the faculty was

            11  looking at files and maybe you had -- and, of course, you never

            12  ignore someone's race or ethnicity, it's just part of the

            13  materials; correct?  You see it, and it's reflective in a lot

            14  of the things that comes with the file; correct?

            15   A    As I think I said earlier when you consider the whole

            16  applicant, very often one of the things that you know about the

            17  applicant is race.  In a psychological sense, it's pointless.

            18  But if you mean whether or not this plays a conscious role, it

            19  may not play a conscious role.

            20   Q    I didn't mean that.  I was saying it was part of the

            21  information that's in front of you and you never ignore it;

            22  isn't that true?

            23   A    Well, you -- I agree it's part of the information that's

            24  in front of you.  Never ignore, I'm not certain.

            25   Q    Fair enough, fair enough.  In any event, this was an








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     158

             1  example the Jones v Smith example that you gave us was an

             2  example where race didn't matter because at the time the

             3  faculty was reviewing these particular files, these two

             4  competing files they had already determined were not lacking --

             5  I wrote this down -- were not lacking in critical mass, so

             6  we're not going to give any credit for race; do you recall

             7  that?

             8   A    Yes.

             9   Q    And that's precisely, in fact, what the policy on page 13

            10  talks about.  Let me read it because I think this is important.

            11   A    Okay.

            12   Q    It says, "It is also worth noting, in connection with

            13  those goals" -- one of them being diversity and one in

            14  particular being the role in the critical mass of

            15  under-represented minorities; correct?

            16   A    Yes.

            17   Q    "...which concern the overall composition of the class,

            18  such as adequate representation of Michigan residents, or

            19  diversity, that the more people we admit without reference to

            20  residency or diversity-relevant characteristics who nonetheless

            21  are Michigan residents or have particular diversity-relevant

            22  characteristics, the few other people will be aided

            23  significantly in the admissions process by residency or by

            24  those same diversity-relevant characteristics.  This is

            25  obviously not a ceiling on the admission of residents or








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     159

             1  members of any other group.  It merely reflects the fact that

             2  at some point the relevance of residency as such, or of the

             3  possession of various diversity-relevant characteristics as

             4  such may be greatly diminished or exhausted."

             5              Did I read that correctly?

             6   A    I think so.

             7   Q    And this is an example, is it not where the relevance of

             8  whether it be Jones or Smith because you didn't designate so I

             9  won't presume, but their diversity-relevant characteristics had

            10  been exhausted at this point; correct?  You didn't need them to

            11  enroll a critical mass of under-represented minorities.

            12   A    Right.

            13   Q    But, Professor, Lempert, if you hadn't gotten to that

            14  point in the process and the faculty was concerned that

            15  critical mass was lacking isn't it true race would have played

            16  role in that decision?

            17   A    Yes and no.  Let me try to explain in the sense that I

            18  mean that.

            19   Q    You bet.

            20   A    That the intention of the policy is first of all before

            21  race any play any role we have to be convinced that the student

            22  -- or both students actually, it doesn't matter which race they

            23  are -- would be people would do well at Michigan.

            24   Q    May I stop you just a bit?

            25   A    Yes.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     160

             1   Q    I apologize and I'll let you finish.  I'm glad you raised

             2  that, too, because let's talk about that.  That's set out twice

             3  in the policy.  It's set out once on page 2 --

             4   A    Right.

             5   Q    Let's read it.

             6             "The minimal criterion is that no applicant should

             7              be admitted unless we expect that applicant to do

             8              well enough to graduate with no serious academic

             9              problems."

            10             And I'll just let you know it's repeated almost

            11   verbatim on page 10; you recall that; do you not?

            12   A    I would have to re-read page 10, but I trust you.

            13   Q    Okay.  So we'll all agree that the law school would never

            14  consciously, regardless of anyone's race, admit someone they

            15  didn't believe could complete the program; correct?

            16   A    That is in the policy -- the intent they won't do that.

            17  And I don't believe we would do that.

            18   Q    I think you used the term it was a robust principle or

            19  something --

            20   A    I've never used that term, I don't think.

            21   Q    Well, I'm sorry.

            22   A    It's fine if you want to use it.

            23   Q    Now, I didn't mean to interrupt you, but just so we

            24  understand, that's the fundamental threshold is that you want

            25  these students, Jones and Smith must be able to finish the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     161

             1  program to your satisfaction.

             2   A    Right.

             3   Q    Without serious academic problems.

             4   A    Now, as I said yes and no, if we can go back and let me

             5  see if we can reconstruct why I said it.

             6   Q    Sure.

             7   A    The reason I said is because I also said in my testimony

             8  that we also intend every student to compete against every

             9  other student.  Critical mass is a goal with minorities, but is

            10  diversity in ways that extend beyond race.  Race would play a

            11  role in -- let me put myself in the role of I think an

            12  Admissions Officer trying to follow the policy that we wrote

            13  and adopted, the way a good Admissions Officer would do that.

            14             If we have reached a level in which we did not have

            15   a critical mass of minorities I think race would play a

            16   significant role in her mind and should.  And she compared

            17   this student to some other students.  But, again, it would not

            18   be trunk.

            19             I can imagine a situation in which even letting race

            20   play that role, this other student who is competing for the

            21   last place had so much more going for him or her that that

            22   would be more important in constructing the class.

            23   Q    Can you imagine that, Professor Lempert if it was the

            24  faculty's impression at the time the decision had to be made

            25  that critical mass of under-represented minorities was lacking?








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     162

             1   A    I can imagine this being brought to a faculty committee

             2  with myself as a member.  And I can imagine saying, you know,

             3  we really would like to have more minority here because we

             4  don't think there's enough to maintain the journal, do

             5  whatever.  On the other hand, this other applicant has such

             6  great strengths when you compare that applicant to this

             7  applicant, we're going to go for the white.

             8   Q    Let me ask you this:  Have you ever an occasion since

             9  1992, where the faculty has determined that a critical mass of

            10  under-represented minorities was not present in the class that

            11  had been admitted and you were confronted with a situation of

            12  enrolling someone else who might fill that but opted not to in

            13  favor of someone who didn't meet the under-represented minority

            14  characteristics?

            15   A    I have not been on the admissions committee since 197 --

            16  1992.  Did you say '72, or '92?

            17   Q    1992.

            18   A    I have not been on the admissions committee since then so

            19  I've never had any personal experience.

            20   Q    Has anyone at the university ever said we gave up, we

            21  gave up critical mass of under-represented minorities because

            22  these other applicants just were so much highly qualified?

            23   A    I have no idea if anybody said that.  I know no one said

            24  it to me.

            25   Q    Professor Lempert, if in the midst -- strike that.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     163

             1             Do you recall how often reports are printed that

             2   gives the faculty that you are looking at these files, the

             3   opportunity to see what the makeup of the class, you know, the

             4   coming year class would look like?

             5   A    I don't.  I was only on this committee again in 1991-92

             6  when we were enunciating this policy so I don't -- I can't help

             7  you there.

             8   Q    Well, I want you to assume that at some point, mid

             9  process, let's just use this as a hypothetical, mid process,

            10  the reports are coming back.  I don't know what critical mass

            11  is.  We're going to talk about that in a little bit.  But let's

            12  just say that it appears to the satisfaction of the faculty

            13  that critical mass is nowhere being achieved with regard to

            14  under-represented minority students.  Are you with me?

            15   A    That it's not being achieved?

            16   Q    It's not being achieved.

            17   A    Okay.

            18   Q    Isn't it true that what this policy contemplates is that

            19  so long as there are qualified under-represented minority

            20  applicants still in the applicant pool, those are the only

            21  applicants that can compete for the spots necessary to bring

            22  the class to a critical mass?

            23   A    No.  As I just said and I thought I said by way of

            24  example, that at least the policy contemplates every applicant

            25  competing with every other applicant.  Now, it's true in the








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     164

             1  situation that you give that that would be a very heavy weight

             2  in terms of the particular applicant or at least it might be if

             3  it seemed that this was -- that not only was the situation you

             4  described the things we're not going to change.  That would --

             5  race would get a lot of consideration.  But it's not true that

             6  we trumped.  It's not true that someone would automatically be

             7  admitted simply because we thought they would pass their law

             8  school courses with little problems, and they were a wrongfully

             9  historically discriminated against minority.

            10   Q    If the admissions office, the admissions dean, in the

            11  past I believe that's been Ms. Munzel --

            12   A    Yes.

            13   Q    And I don't mean to put her on the spot.  She's testified

            14  about what she does.  She's trying to find the policy --

            15   A    Yes.

            16   Q    At some point she is only halfway toward what appears to

            17  be the necessary critical mass of under-represented minority

            18  students, is she following the policy?  Assuming there were --

            19  I want you to assume that there are qualified under-represented

            20  minority applicants still in the pool that hadn't been an offer

            21  --

            22   A    If she had been giving offers to people who because of

            23  their overall admissions profile are more attractive than

            24  minority applicants even given the faculty interest in the

            25  critical mass, yes, she is following the policy.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     165

             1   Q    So you would be -- if that were the case, if that were

             2  the case, in the applicant pool there was just so many of these

             3  attractive applicants and unfortunately also having the

             4  under-represented minority group, you would be prepared to give

             5  up a critical mass in order to get in the very top students

             6  that you've just described for us?

             7   A    Well, if one is getting, you know -- you're talking

             8  hypothetically and I think rather in an unreal world.  So if

             9  you want an unreal answer, I can probably give you that and my

            10  basis of my own perspective.  But imagining that I believe the

            11  principal that we have to look at all students and we have to

            12  compare all students is a very important one.  I think and I

            13  think historically it's right that we do that, we give some

            14  weight to what is an important faculty policy which is having a

            15  critical mass of minorities.  That we have an applicant pool

            16  that we receive and have received certainly to my knowledge for

            17  years, we will achieve a critical mass though what the number

            18  is can vary and indeed vary substantially.

            19              But if you want me to go into your hypothetical

            20   where as I look at every applicant I see these absolutely

            21   extraordinary things that are going to bring to everyone's

            22   education.  And so extraordinary that will outweigh the many

            23   virtues of a given year of having critical mass of minorities.

            24   I think we have to live with the policy that tells our

            25   Admissions Dean to let everybody compete against everybody








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     166

             1   else.

             2   Q    I think we agree on this:  You don't believe that

             3  diversity characteristics in the sense of life experiences and

             4  all of the things that are described and, in fact, by the

             5  examples that you included in the policy, those aren't defined

             6  by race; are they?

             7   A    Some of them are highly associated with race; many of

             8  them are not.

             9   Q    Were any of the three -- put aside the Brown student who

            10  is the example where you should be skeptical of a LSAT score.

            11   A    Okay.

            12   Q    As a matter of fact, I think Mr. Payton told us in the

            13  opening statement on Tuesday, that's a white student; do you

            14  recall that?

            15   A    I did not hear the opening statement so I don't know.

            16   Q    Well, Mr. Payton represented actually an example of the

            17  person you were skeptical of concerning the LSAT was a white

            18  student.

            19   A    We have an admissions policy for all students.

            20   Q    That's good.  But X, Y and Z under diversity, do you know

            21  the race -- well you call him Pakistan. I believe he was from

            22  Bangladesh.

            23   A    You're right.  When I grew up, they were both part of the

            24  same country.

            25   Q    That student -- in fact, he was foreign national; was he








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     167

             1  not?

             2   A    Yes.

             3   Q    He wasn't a U. S. resident; correct?

             4   A    He resided in Massachusetts for four years studying at

             5  Harvard, but -- I can't tell you personally whether he had

             6  residency status. I may have known at one time, I certainly

             7  don't know now.

             8   Q    In fact, he's South Asian?

             9   A    Yes.

            10   Q    And you're aware that Asians are not considered, on page

            11  12, one of the groups which are included within the critical

            12  mass; correct?

            13   A    They are not one of the historically discriminating

            14  against minorities which that part of the policy is referring

            15  to.

            16   Q    But he brought a great diversity characteristic to the

            17  school.

            18   A    Yes, he did.

            19   Q    Do you know the race of Y, the woman from Argentina; do

            20  you know her race?

            21   A    I don't know her race.

            22   Q    And it didn't matter because if you just look at the

            23  characteristics that was a woman that brought tremendous life

            24  experience, overcame tremendous obstacles.  And those abilities

            25  to overcome life experiences and obstacles are not confined by








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     168

             1  race; are they?

             2   A    No, I don't think so.  I assume she was white, but I

             3  don't think I searched her out to find out.

             4   Q    Fair enough.  And then the last one the woman who was the

             5  daughter of Greek immigrants, do you know her race?

             6   A    Well, I am sure she was white, but what was salient there

             7  was -- while part of our policy are white, but it's the ethnic

             8  status that focuses on there.

             9   Q    But her ethnic status is not part of what's included in

            10  the critical mass?

            11   A    It's not part of what's included in the critical mass,

            12  but it is the diversity characteristic which is very important,

            13  included or not.

            14   Q    Sure.  And those diversity characteristics come in all

            15  races and ethnicities; correct, you would agree with that?

            16   A    Yeah.

            17   Q    Now, let's talk about the development of the phrase

            18  "critical mass."

            19   A    Yes.

            20   Q    As I understand it going back to Exhibit 34, which

            21  counsel put up on the board, do you believe that was the first

            22  draft?

            23   A    I think it was; I can't be certain.

            24   Q    All right.  And, in fact, you were responsible for

            25  preparing it.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     169

             1   A    I was responsible for writing it, yes.

             2   Q    And so the numbers that we see in that policy were

             3  numbers that you included in your first draft of the policy;

             4  correct?

             5   A    Yes.

             6   Q    For example, if you can go to page 10 of Exhibit 34,

             7  where it makes reference to a decision should be made that at

             8  least eighty percent of likely matriculants should come in the

             9  upper quadrant of the grid?  Was that a number you selected?

            10   A    Well, I assume it was.  It was probably something after

            11  discussion with the committee because we discussed it several

            12  times before I wrote this draft.

            13   Q    I also noted that you put in -- at least in the typed

            14  draft that you prepared when you were talking about meaningful

            15  numbers of under-represented minorities, at least it was your

            16  responsible for defining that as given their presence in both

            17  the nation's population and the population of Michigan in

            18  particular; is that true?

            19   A    I'm sure I was responsible for that language.

            20   Q    Why did you select that at the time?

            21   A    Why did I select that at the time?

            22             I think that it reflected my belief which is not

            23   reflected in the final policy that in a sense we were a state

            24   school, and we also are a very important play at the national

            25   front in a sense that as such we wanted our student body to








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     170

             1   look like the world around us.

             2   Q    That's the best you can -- I mean, that's your

             3  recollection of why you came up with that particular --

             4   A    It's a long time since I came up with that language.

             5  What I'm really trying to do actually here now is kind of

             6  reconstruct what may have been my motive given my own personal

             7  views rather than what were the committee's views.

             8   Q    But you were the chair of the committee?

             9   A    Yes.

            10   Q    You were responsible for preparing the original draft and

            11  then the subsequent draft?

            12   A    Absolutely.  I'll take responsibility for everything in

            13  it.

            14   Q    Page 11, you -- I just want to go to some of your

            15  language and you were talking about "the given predictive

            16  validity of index scores" --

            17   A    Yes.

            18   Q    "Non-grid admittees admitted for diversity purposes shall

            19  not exceed 20% of the expected matriculants in a class."

            20  Again, that's just the remainder from the 80 percent; correct?

            21   A    Yes.

            22   Q    And then if we go to -- let's go to page 13.  I'd like to

            23  read what you originally drafted.

            24   A    Yes.

            25   Q    The first full paragraph, and I'm going to quote this.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     171

             1  Your first draft of this policy says,

             2             "Our goal is to have substantial and meaningful

             3              racial and ethnic diversity, but we do not wish to

             4              exhaust the positions that are open to non-grid

             5              diversity admittees in promoting racial and ethnic

             6              diversity."

             7             Did I read that correctly?

             8   A    Yes.

             9   Q    And I assume what you meant is that you were drawing a

            10  distinction between the diversity represented by, for example,

            11  Students X, Y, and Z, and those that would come largely because

            12  they were members of under-represented minorities; correct?

            13   A    Yes, I think.

            14   Q    And at the bottom, we have this.  It says,

            15             "Also it is important to note that in the past we

            16              seem to have achieved the kinds of benefits that

            17              we associate with racial and ethnic diversity from

            18              classes in which the proportion of African-

            19              American, Hispanic, and Native American members.

            20              has been about 11% and 17% of total enrollees."

            21              Did I read that correctly?

            22   A    Yes.

            23   Q    Okay.  And, again, that's your language when you first

            24  put this policy together; correct?

            25   A    Yes.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     172

             1   Q    And I believe you told us earlier this afternoon that you

             2  believe that number came because it may have been the

             3  historical pattern of admissions over the prior years?

             4   A    I'm pretty sure that was experiential.

             5   Q    And you consider that to be critical mass; do you not?

             6   A    That on the one hand, I think as we thought back we could

             7  not identify any class in which we thought we could not have a

             8  critical mass collectively.  On the other hand, I don't think

             9  identified any class which we thought the critical mass had

            10  clearly been exceeded.

            11   Q    I understand.

            12   A    But that is the range.

            13   Q    Sure.  And you believe that range -- at least an average

            14  -- let's just assume forever it stays in that range, you

            15  believe that represents critical mass?

            16   A    I can't really speak about forever.

            17   Q    Okay. I withdraw it. That's a poor question.

            18             At least the history leading up to the adoption of

            19   the policy, under-represented minority percentages that varied

            20   between eleven and seventeen percent, you believe constituted

            21   critical mass; did you not?

            22   A    When I wrote that policy I believe these were -- I

            23  believe -- let me put it this way: I believed that the classes

            24  we admitted over the past few years all had what I would

            25  consider critical mass of minority students. In a sense that --








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     173

             1  in my own teaching experience.  I would not necessarily -- I

             2  don't equate critical mass with those numbers. Let me put it

             3  that way.

             4   Q    But that critical mass you said is not a number --

             5   A    That's right.  That's part of the reason I don't equate

             6  them.

             7   Q    But it's a meaningful number; is it not?

             8   A    It's a meaningful term.  It's not a meaningful number.

             9   Q    Well don't you define it as "meaningful number" in the

            10  policy?

            11   A    Oh, I'm sorry.  I thought you meant critical mass as a

            12  meaningful number.

            13   Q    I did.  Critical mass is a meaningful number.  It means a

            14  meaningful number of under-presented minority students; does it

            15  not?

            16   A    It is -- you can't have a critical mass I think without

            17  having a meaningful number of minority students.

            18   Q    Okay.  Let me just ask you this question:  Since 1992, to

            19  your knowledge, have you ever had less than eleven percent

            20  under-represented minority enrollment in the first year class?

            21   A    I have never looked at the figures.  So I have no

            22  first-hand knowledge of that.  My expectation is we have not,

            23  but I do not know.

            24   Q    That you have not been below that.

            25   A    Right.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     174

             1   Q    In fact, do you recall at what point in the drafting

             2  process the phrase "critical mass" actually appeared?

             3   A    As I said there were a number of iterations.  I don't

             4  recall at what point it appeared. But it may well have been the

             5  next draft.  It's kind of hard to remember, but the more I've

             6  thought this the more I've gotten to think somewhat of a better

             7  feel than I had.

             8              As I recall, as we discussed this, I personally was

             9   troubled by the numbers that we put in.  Not when I wrote it I

            10   think but as I thought about it.  And I was troubled for a

            11   couple of reasons which I think I have alluded to.  One reason

            12   I was troubled was as I said we wanted to avoid any suggestion

            13   of quotas or ceilings or floors.  We did not think it would be

            14   constitution to have those.

            15              The other reason that I recall being troubled had

            16   to do with my reading the files.  That the more this

            17   progressed, the more we were on this dual track, the more the

            18   spirit of what we were doing seemed to be apathetical to

            19   putting numbers on it.  The kind of deep -- we definitely were

            20   -- going to put numbers, index scores that magically seemed to

            21   me to be inconsistent with the spirit of the kind of policy

            22   that I and I think the committee wanted to write for the law

            23   school.

            24   Q    But when you drafted this policy, it was clearly not with

            25  the intention of reducing -- doing anything that would reduce








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     175

             1  the numbers of under-represented minority students in your

             2  student body; correct?

             3   A    This policy was not written with an intent of necessarily

             4  reducing or increasing the number of minority students in the

             5  student body.

             6   Q    Well, let me just back up.  Professor Lempert, isn't it

             7  fair to say that nothing in this policy was written with even

             8  the thought that it would reduce the under-represented minority

             9  students below the critical mass?

            10   A    We certainly do not expect -- I certainly do not expect

            11  that it would reduce the number of under-represented minority

            12  students below a critical mass.

            13   Q    And as a matter of fact, you didn't expect that the

            14  numbers of minority students coming into the school would

            15  change from what the previous policy had been; did you?

            16   A    The reason I'm hesitating answering that question is

            17  simply my understanding of the prior policy was that we had no

            18  firm numbers.  And this is the time -- and that we -- the

            19  numbers fluctuated.  In fact, depending on the strength of the

            20  applicant pool, that sometimes we had, you know, maybe ten

            21  percent, sometimes thirteen percent, what have you.

            22   Q    But you certainly didn't believe, did you, that the

            23  numbers were going to fluctuate under this new policy?

            24   A    That's exactly what I believed, the numbers would

            25  fluctuate and probably more so than they had in the old policy.








                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     176

             1   Q    You did say that and I apologize.

             2             You did not have a belief and you certainly had the

             3   hope or -- strike that.

             4             You didn't have any intention when you drafted this

             5   policy to do anything different that would result in the

             6   numbers dropping; did you?

             7   A    It was not my intention to write a policy that said we

             8  should sink below our critical mass.

             9   Q    Do you recall whether or not the phrase "critical mass"

            10  actually appeared or happened just days before the policy was

            11  adopted?

            12   A    I don't.

            13   Q    Do you recall whether it was a last-minute insertion that

            14  -- strike that.

            15             You don't recall at what point the numbers --

            16   A    I don't recall at what point that went in.

            17                           -- --- --

            18

            19

            20

            21

            22

            23

            24

            25



                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   177




         1   Q.    Do you recall that in discussion with the faculty,

         2         the committee, I should say, not the faculty, but

         3         the members of your committee, that the eleven to 17

         4         percent represented what they considered to be a

         5         range of a critical mass of minorities, would that

         6         be a fair statement?

         7   A.    Again, I think what it represented are a historical

         8         over recent history in terms of fluctuations.  And

         9         that our recent history struck us at both ends as

        10         big enough to achieve, but not in the same--in

        11         critical mass.

        12   Q.    Do you recall, and I'll just ask you this and if you

        13         don't know, I'll show you the deposition.

        14                        Do you recall being asked about where

        15         the number came from, and I'm going to give you the

        16         question.

        17   A.    I'd like to see the deposition.

        18   Q.    Sure, you can have the deposition.  Page 137.  Now,

        19         page 137, Professor Lempert, I just want to be

        20         clear, and as a matter of fact I think maybe what we

        21         should do, let's go over to page 136.

        22                        And you make reference that there was

        23         an early graph that said something like eleven to 17

        24         percent, that's at line twelve.

        25   A.    Okay.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   178




         1   Q.    At line twelve.  And then the question,

         2             "Q.    From minority members?

         3              A.    As a target, I think for minorities.

         4              Q.    And, in fact, at the bottom of this

         5                    page," and this is referring to

         6         Professor Regan's memo to you.  At the bottom of

         7         this page, it's not necessary to read the rest of it

         8         but it says, "the 17 percent figure mentioned

         9         above."

        10                        I don't see that anywhere in this

        11         document.  That suggest to me at one point this

        12         policy, a draft of the policy called for 17 percent

        13         target range for minority admissions.

        14                        Your answer is 17 percent was the top

        15         of the target range.

        16             "Q.    Who was the author of that range in the

        17                    policy?

        18              A.    I assume I was."

        19                        And then we jump down, if we can, to

        20         line 15.

        21             "Q.    We talked earlier in the deposition about

        22                    how a substantial number of minorities in

        23                    the policy ultimately talked about

        24                    critical mass minorities.

        25                    The eleven to 17 percent, does that





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   179




         1                    reflect a range that would define those

         2                    terms?

         3              A.    I don't know, I think at the time when I

         4                    wrote the first graph that it seem to me

         5                    based on committee discussion, that that

         6                    sort of captured a sense of what one

         7                    needed at a minimum for critical mass.

         8                    Or we would like to have at a minimum, I

         9                    should say."

        10                        Do you recall that?

        11   A.    I don't recall it, but since it's here I probably

        12         said it.

        13   Q.    Is that an accurate reflection of where that phrase

        14         came from, in addition to being a historical pattern

        15         at the school at hand?

        16   A.    I'm not sure what you mean by is that an accurate

        17         reflection?

        18   Q.    The discussions with the faculty you just described,

        19         you said it seem to me based on committee

        20         discussion, that that sort of captured a sense of

        21         what one needed at a minimum.

        22                        And I'm just saying, does that help

        23         refresh your recollection as you had discussions

        24         with the committee where those were the numbers?

        25   A.    I had discussion with the committee, yes.  But





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   180




         1         whether that discussion was focused on numbers is

         2         something different.  I think I go on in this

         3         deposition to say something about it.  Yes, right

         4         here.

         5   Q.    Sure.

         6   A.    It says, where was the source of these numbers, I

         7         said I can't tell you now the precise source, but I

         8         can say probably would have reflected discussions of

         9         the committee, and might have reflected historical

        10         patterns of admissions.

        11                        As I thought about it I have become

        12         much more confident, it did reflect historical

        13         patterns of admission.

        14                        Now, when it says discussions with

        15         the committee, it doesn't necessarily mean

        16         discussions with the committee when someone said

        17         eleven to 17 percent.

        18                        It could just as easily have been I'm

        19         afraid I can't clarify at this point.  Discussions

        20         which people said, well, are we satisfied with the

        21         kind of classes we've been admitting over the past

        22         three or four years, and then we got these numbers

        23         about what they were.  I said, okay, I'll put in the

        24         historic numbers.

        25   Q.    Was concern about keeping the numbers in, was one of





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   181




         1         the concerns that you might have run afoul of Bakke?

         2   A.    Was one of the concerns about having numbers in is

         3         that we might have run afoul with Bakke?

         4   Q.    Yes, sir.

         5   A.    I think a concern was that it might be

         6         misinterpreted as running afoul of Bakke.  I think

         7         that we never intended these to be hard and fast.

         8         So, in fact, I think that--but they're still open to

         9         that kind of interpretation.

        10   Q.    Doesn't Professor Regan deal with your very concern

        11         in his memo?  You have Exhibit 32 in front of you?

        12   A.    I have to reread the whole memo.

        13   Q.    Sure.  Exhibit 32, why don't we go with that.

        14   A.    And if you can call my attention where you think

        15         dealing with that.

        16   Q.    I'm going to probably read the first page here to

        17         you, but let's go back because we have the bracketed

        18         portion.  This is from Professor Regan to you and

        19         others on your committee, correct?

        20   A.    Yes, this is a memo that he wrote and circulated to

        21         the members.

        22   Q.    Sure.  And this is where he wanted to try to give

        23         you his input on how we--we'll let's just read it.

        24         It says, "Rick has suggested an emendation--".

        25         Professor Lempert, can I ask you, is that a word?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   182



         1   A.    If Don used it, I'm sure it is a word.

         2   Q.    I apologize, because I just looked at it and I

         3         assume it was.  "Rick had suggested an emendation of

         4         his memo which removes all numbers on the target

         5         range.  For a variety of reasons, including candor,

         6         I incline to prefer keeping the numbers and trying

         7         to explain what they really signify.  So here is a

         8         draft attempt at that project.

         9                        These paragraphs are a suggestion for

        10         inclusion in the middle of a memo like Rick's

        11         overall.  I do assume in effect that our only

        12         (permissible) diversity goal is the Bakke approved

        13         classroom diversity."

        14                        And I don't want to read this whole

        15         thing, but doesn't what Professor Regan write is to

        16         make clear that these numbers are not intended to be

        17         either a minimum, because certainly you're not going

        18         to admit students who aren't qualified.

        19                        Nor a maximum which would keep

        20         out--if 50 percent of next year's students were

        21         underrepresented minorities, the school would be

        22         happy to have them there, correct?

        23                        MR. GOLDBLATT:  Your Honor, I have

        24         the same hearsay objection.

        25                        THE COURT:  Sustained.  The document





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   183




         1         speaks for itself.

         2   BY MR. PURDY:

         3   Q.    The document does speak for itself, let me just ask

         4         you.  Let's read it then, because it's worth noting.

         5         Professor Regan suggested, "Mentioning any

         6         percentages at all, even a broad target range, will

         7         suggest to some people that we are talking about

         8         minimum quotas for, or maximum ceilings on minority

         9         admissions.

        10                        It is therefore worth emphasizing

        11         that what we are talking about is neither a quota

        12         nor a ceiling.  It is not a quota, because there's

        13         no minimum number of minorities we are committed to

        14         admit regardless of other qualifications."

        15                        That's consistent with your policy,

        16         correct?

        17   A.    Yes.

        18   Q.    It is also not a ceiling, because there's no maximum

        19         number we will admit given appropriate other

        20         qualifications, correct?

        21   A.    That's correct.

        22   Q.    What would those other qualifications be, Professor?

        23   A.    It would be a whole range of other qualifications.

        24         It would be other life experiences, it would be

        25         letters of recommendation, it would be index scores,





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   184




         1         it would be essays.  Just everything that we

         2         consider when we consider applicants.

         3   Q.    And Professor Regan finishes on his first paragraph

         4         there by saying, "If the applicant pool in some

         5         future year were such that an admissions process

         6         which paid no attention at all to minority

         7         membership, would produce a class which was 25

         8         percent minorities, we would admit 25 percent

         9         minorities.

        10                        Indeed, we would do so with delight

        11         at what such numbers indicated about changes in

        12         society at large."

        13                        Am I reading that correctly?

        14   A.    Yes.

        15   Q.    Do you agree that you could have left numbers in,

        16         for example, and not, in your opinion, could you

        17         have left numbers in, use the language that

        18         Professor Regan had instilled on, placed a ceiling

        19         on minority enrollment?

        20   A.    Only if there is extensive other writing.  We could

        21         have done it, because it would have meant that.  But

        22         I think it would have been very unclear and prone to

        23         misinterpretation.

        24                        And also it might have a behavior

        25         function that someone can reply about, where the





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                    185




         1         numbers would stick in their head rather than the

         2         purpose.

         3   Q.    Professor Regan goes on and talks about, as a matter

         4         of fact, he draws the analogy between residents and

         5         diversity--people admitted for residency reasons and

         6         diversity reasons, correct?

         7   A.    You'll have to show me where it is.

         8   Q.    Sure, just if you go on through the memo, page three

         9         talks about residency.  And, in fact, that includes

        10         this specific percentage, it's 35 percent at page

        11         three at the top, you see that?

        12   A.    Yes.

        13   Q.    And, of course, we know that that is a very

        14         important part of the policy.  I probably can't find

        15         it on counsel's blow up, so I won't try.

        16                        But that specifically, Michigan

        17         residency is specifically referenced in the policy

        18         is a very important goal to enroll a certain

        19         percentage of Michigan students, correct?

        20                        MR. GOLDBLATT:  Objection.  I think

        21         that misstates the document to a certain percentage.

        22   BY MR. PURDY:

        23   Q.    A reasonable proportion, I'm sorry?

        24   A.    With whatever the language is, I think you and the

        25         judge have it in your heads better than I do at this





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   186



         1         point.

         2   Q.    We have been reading this for the last couple of

         3         days, Professor Lempert and I apologize.

         4                        It's true, is it not, that

         5         approximately a third of every year's class is made

         6         up of Michigan residents?

         7   A.    That's my understanding.

         8   Q.    And has that been a historical pattern more or less?

         9   A.    I think that may have fluctuated a bit, but it's

        10         within a ball park.

        11   Q.    And as the policy says, that's to honor the special

        12         claims of Michigan residence to a Michigan law

        13         school education?

        14   A.    Yes.

        15   Q.    And that's an important goal, because you're a

        16         public institution, right?

        17   A.    Yes.

        18   Q.    Would you agree that Michigan residents get some

        19         preference in the admissions process?

        20   A.    They get some preference.  Can you explain what you

        21         mean by that?

        22   Q.    There's an advantage to being a Michigan resident?

        23   A.    For some, yes, for some no.  There's a lot of

        24         Michigan residents who were not accepted, and

        25         whatever the vantage they had wasn't enough.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   187



         1   Q.    But there is Michigan residents who, but for

         2         residency, would not be admitted, would you agree?

         3   A.    I think that, again, in comparing students, there

         4         are some Michigan residents who get an advantage

         5         from that.  Which could be what swings the balance.

         6   Q.    It could be dispositive, in other words, it could

         7         make the difference?

         8   A.    Well, dispositive is--

         9   Q.    (Interposing)  I'll withdraw it.  It could make the

        10         difference?

        11   A.    Yes, it could be an added strength which makes a

        12         difference in the decision.

        13   Q.    Just like race could be an added strength, it could

        14         make a difference?

        15   A.    Yes.

        16   Q.    Do you have any feel for the comparative weight

        17         given to race versus residency in your process, in

        18         the law school's process?

        19   A.    I'm not sure I can even begin, it's a hard question

        20         to answer, because these are parts of complicated

        21         people.  And these are parts of reading whole files.

        22                        And it's not as if there's kind

        23         of--we're going to put in the balance two pounds for

        24         residency, or three pounds or one pound for race and

        25         everybody gets it.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                    188




         1                        Different people may benefit in

         2         different ways from it.  Some won't benefit at all,

         3         some might benefit a great deal, some might

         4         moderately benefit.  So I don't think I can really

         5         answer that.

         6   Q.    Well, certainly students, regardless of race, were

         7         not--don't get promised to being able to complete

         8         the program, it doesn't matter what your race is or

         9         your residency, you're not getting it?

        10   A.    They're not getting it, yes.

        11   Q.    But if you're a resident, do you have any feel, and

        12         if you don't tell us, I don't mean to put you on the

        13         spot if you don't know.

        14                        But do you have any feel, you're the

        15         drafter of the policy, you were part of the team

        16         that put this together?

        17   A.    Yes.

        18   Q.    Was residency which is expressly mentioned in this

        19         advantage, if you will, was that intended to carry

        20         more weight or less weight then it would race?

        21   A.    We never even discussed things in those terms.

        22   Q.    Okay.  I'm going to show you Exhibit 139.

        23                        MR. PURDY:  Your Honor, may I

        24         approach the witness, your Honor?

        25                        THE COURT:  Yes, please.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                    189




         1   BY MR. PURDY:

         2   Q.    Professor Lempert, I just want to show you two

         3         sheets which was taken from charts made up by

         4         Dr. Kinley Larntz.  This is from data provided by

         5         the University of Michigan.  And I am just taking

         6         the year 1999 and I have given you two sheets.

         7                        And the first sheet is what is

         8         described as an admissions grid of LSAT and GPA for

         9         majority and non-selected minority applicants, 1999

        10         Michigan residents.

        11                        The second grid sheet is the similar

        12         grid for selected minority applicants who are

        13         non-residents for the same year, do you see that?

        14         Just look at the heading.

        15   A.    Yes.

        16   Q.    And all I want to do, and I'm sorry I don't have a

        17         power point to throw this up or some way to make it

        18         fancy, but I just handed you the sheets.

        19                        And let's just go, for example, and

        20         look if we take under 161 through 163 at the very

        21         top, let's just take that column, 375 and above.

        22                        You see for Michigan residents who

        23         are majority, that would include Caucasian

        24         Americans, Asian Americans, Arab Americans, certain

        25         Hispanic groups who are not included in selected





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                    190




         1         minorities.

         2                        You have 18 applicants, nine were

         3         admitted, do you see that?

         4   A.    Yes.

         5   Q.    And look at the corresponding box for non-residents

         6         selected minorities?

         7   A.    Yes.

         8   Q.    Four out of four?

         9   A.    Yes.

        10   Q.    Let's go down to the next grid level.  Twenty

        11         Michigan majority residents applied, five were

        12         admitted.

        13                        And if you compare with the

        14         non-resident underrepresented minorities, eight out

        15         of ten, do you see that?

        16   A.    Uh-huh.

        17   Q.    All right.  Let's go down in another column, the

        18         three to five and 35.  The majority of residents of

        19         Michigan, 23 applicants, three admittees,

        20         non-resident minorities, nine applicants, seven

        21         admittees.

        22                        And then let's just go over to the

        23         column, let's move down the column where it's 159 to

        24         160.  Eleven majority residents apply, three got in,

        25         four non-resident minorities and four got in.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                    191




         1                        Dropping down one more.  Fifteen

         2         majority residents applied, one got in.  Seven out

         3         of seven non-resident minorities got in.  And the

         4         pattern goes on and on.

         5                        Professor Lempert, I'll represent to

         6         you and I looked at this carefully, and if I make a

         7         mistake I apologize, no one did this but me.

         8   A.    Okay.

         9   Q.    There isn't a grid on this sheet where non-resident

        10         minorities don't have an equal or greater chance of

        11         being admitted than do Michigan residents who are

        12         majority students, does that surprise you?

        13   A.    I'll trust what you say.  I'm not particularly

        14         surprised for reasons I think I alluded to on direct

        15         examination.

        16   Q.    And what reasons would that be?

        17   A.    The characteristic of the pool from interested

        18         selected people.

        19   Q.    How would the characteristic of the pool affect what

        20         we just saw here?

        21   A.    They affect what we just saw there, as I said that

        22         even if one were to select without any regard to

        23         race, without any regard to grid position.

        24                        And then after you selected people

        25         and you had your group of non-resident minorities





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   192




         1         and resident Michigan students, and then you were to

         2         look at either the cells or look at the averages on

         3         LSAT or index score.

         4                        You would find that you admitted a

         5         class which scored higher, and perhaps substantially

         6         higher, and had a higher at virtually every point in

         7         the grid probability of being admitted without any

         8         attention to either of those features.

         9   Q.    The hypothetical that you drew, the little example

        10         that you used, you actually left out two of the most

        11         important factors, in fact the LSAT score and GPA,

        12         those two factors?

        13   A.    No, I didn't leave them out at all.  Along the base

        14         line is the index score.  And what I did say and I

        15         went through three different versions of that, what

        16         I did say was that you get a large difference if

        17         index score were left out and if race were left out.

        18                        But you would also get a large

        19         difference if index score were implicitly included,

        20         because there is a correlation between index score

        21         and what you admitted the basis on.

        22                        And then I concluded by saying you

        23         would also get a discrepancy if the index score was

        24         included, but played a small rather than a large

        25         role.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   193




         1   Q.    At anytime while you were serving on the Admissions

         2         Committee, did your committee consider alternatives

         3         to the policy which did not consider race?

         4   A.    It's conceivable that we had a brief discussion

         5         about whether we achieved the diversity we wanted

         6         without considering race.  I don't explicitly recall

         7         that discussion.

         8                        I know that as chair of the committee

         9         from things I did know from social science and

        10         elsewhere, I was completely convinced as I remain

        11         today, that one could not achieve anything close to

        12         a critical mass if one could not explicitly consider

        13         race.

        14   Q.    You say you don't recall specifically the

        15         discussions about that.  What can you tell us at all

        16         about the discussions of the possibility of adopting

        17         the policy that didn't require the use of race?

        18   A.    As I can say, I don't recall us discussing that, but

        19         it may well be in a preliminary matter that we

        20         talked about ways to achieve, among other things,

        21         racial and ethnic diversity.

        22                        Had we talked about that, I know that

        23         we would have quickly concluded that it is

        24         impossible to achieve a diversity wanted from any

        25         other means.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   194




         1   Q.    Why is the reason that you need to use race in order

         2         to achieve critical mass?

         3   A.    The reason is, let me over simplify perhaps.  The

         4         reason is because there's so many more whites in the

         5         country then there are minorities.

         6                        And that whatever proxy you might

         7         take in an effort to not look at race, but, in fact,

         8         get at race at the law school admissions level, you

         9         would be admitting many, many more whites.

        10                        Let me give you an example just so I

        11         make this clear.

        12   Q.    Social economics?

        13   A.    Let me give you an example.

        14   Q.    Sure.

        15   A.    UCLA Law School, when Proposition 209 was adopted,

        16         they tried to do exactly what you're suggesting.  I

        17         think that's one economics types, who I understand

        18         developed the regression analysis that look at where

        19         people live and their parents education and many

        20         other things.  And then they're admitted on the base

        21         of those scores.

        22                        What happened was they admitted

        23         something like a hundred more people to their class

        24         came then they thought they would have.  That they

        25         had very few underrepresented minorities, but they





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   195




         1         had an awful lot of Asian Americans.

         2                             So, when you try to consider

         3         other factors, in part, if minorities are real

         4         minorities, you can't achieve the critical mass,

         5         that's my belief.

         6                        That practical example is an example.

         7         I have a colleague Debra Mellon who has written a

         8         terrific law review article you may be familiar

         9         with, which, I think, goes in and shows there's

        10         other work if you look at--anyway.  That's where I

        11         come out.

        12                        That's where I wouldn't have had the

        13         other experience in, but I did know a lot of other

        14         things.

        15                        So, if we had such a discussion, and

        16         I say it may have been raised briefly by someone, I

        17         am sure that I could have carried the day on that

        18         discussion, because I know I'm correct on that.

        19   Q.    I'm sure you don't take the position that Asian

        20         Americans don't have diversity in the law school

        21         class?

        22   A.    They certainly do have diversity.

        23   Q.    And you mentioned UCLA, I'm glad you did.  In terms

        24         of the overall minority population between Michigan

        25         and UCLA, which school has the greater minority





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   196




         1         population in their law school?

         2   A.    I do know today since we're talking about

         3         historically underrepresented minorities, certainly

         4         if you talk about blacks and I think even Hispanics,

         5         Michigan has proportionately more.

         6                        If you talk about Asians and add them

         7         in, it could well be that UCLA has proportionately

         8         more, but I have not looked at those figures.

         9   Q.    Do you know what the proportion of what percentage

        10         of UCLA's classes is Hispanic or Mexican Americans

        11         as compared to Michigan?

        12   A.    I don't.

        13   Q.    You are aware of UCLA cannot consider race by law,

        14         correct?

        15   A.    I'm aware that they have Proposition 209 which

        16         prevents the consideration of race.

        17   Q.    Let me just ask you a question about all the law

        18         schools in California.  Boalt Hall, which is a very

        19         fine school?

        20   A.    Yes.

        21   Q.    Do you know whether or not--and it's bound by

        22         Proposition 209, is it not?

        23   A.    Yes.

        24   Q.    Do you know whether or not it has a total minority

        25         population greater than or less than in Michigan?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   197




         1   A.    Are you including Asians?

         2   Q.    Yes, I'm including everybody.  I'm including every

         3         person in the class, Professor?

         4   A.    Well, the answer is still the same that I don't

         5         know.  But I would not be surprised if you're being

         6         historically discriminated against minorities, then

         7         I would be very surprised if their population is

         8         greater than ours.

         9   Q.    Correct me if I'm wrong, I thought you told me when

        10         we met last August in Mr. Goldblatt's office, that

        11         you considered Asian Americans to be

        12         underrepresented?

        13   A.    I do.  And not only underrepresented--

        14   Q.    (Interposing)  I'm sorry, historically discriminated

        15         against?

        16   A.    Yes.  And we have a large number.  California, if

        17         you look at the California law schools, because so

        18         many Asian Americans live on the west coast.  They

        19         have proportionately higher Asian Americans in their

        20         population, and they have a proportionate higher

        21         numbers of Asian Americans in their law school.

        22                        But, if you compare us with, say,

        23         Chicago or University of Pennsylvania or Yale, or

        24         various other schools, my hunch is that we do

        25         similar with Asian Americans.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   198



         1                        But again, you know, that's

         2         speculation because I have not looked at the

         3         figures, per se.

         4   Q.    Well, you certainly wouldn't consider, in all

         5         fairness, you wouldn't consider the California law

         6         schools to be more segregated then Michigan law

         7         schools?

         8   A.    I certainly would.

         9                        MR. GOLDBLATT:  Your Honor, I object

        10         to the question on the grounds that it doesn't call

        11         for testimony that relates to first-hand knowledge.

        12   A.    Well, I do have some first-hand knowledge of it that

        13         maybe I should share.

        14                        MR. GOLDBLATT:  I withdraw my

        15         objection, your Honor.

        16                        THE COURT:  Okay.

        17   A.    In this story--

        18                        THE COURT:  (Interposing)  There's no

        19         question right now.

        20   BY MR. PURDY:

        21   Q.    And having been alerted to this, I will move on to

        22         another subject.  I'm sure counsel will come back to

        23         it.

        24                        Let me go back, I want to go through

        25         a couple of things that you testified to earlier





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   199



         1         this afternoon.

         2                        You talked about, obviously

         3         Dean Bollinger appointed you to chair this committee

         4         back in 1991?

         5   A.    Yes.

         6   Q.    And then who appointed the other members of the

         7         committee?

         8   A.    The Dean appointed them, but he consulted with me

         9         about who they should be.

        10   Q.    After Dean Bollinger appointed the committee, what

        11         role, if any, did he play in the committee?

        12   A.    As far as I recall, he played no role whatsoever.

        13   Q.    Did he ever attend any committee meetings that you

        14         can recall?

        15   A.    I do not recall and I'm almost certain he did not.

        16   Q.    Do you recall him providing any written input to the

        17         committee?

        18   A.    No, I think he just got input from us.

        19   Q.    Incidentally just for what it's worth, you went

        20         through the portions of the policy that talk about

        21         the Olympic gold medal diver.

        22                        There's no mention of race and, of

        23         course, there would gold medal winners of all races,

        24         correct?

        25   A.    You certainly could.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   200



         1   Q.    Junior chess champion, you thought that was someone

         2         who was interesting and brought some diversity and,

         3         of course, you didn't mention race.  And I'm not

         4         going to ask you to, because there could junior

         5         chess champions of all races, correct?

         6   A.    Yes.

         7   Q.    And you mentioned a 50--was that a 50 year old M.D.?

         8   A.    Yes.  I think he was about 50.  At that point he's

         9         older than I am.

        10   Q.    All right.  He's a young man at 50.  And again you

        11         made no mention of his race, correct?

        12   A.    Right.

        13                        MR. PURDY:  Your Honor, if I could

        14         just have one second.

        15                        THE COURT:  Of course, take your

        16         time.

        17   BY MR. PURDY:

        18   Q.    Professor Lempert, what is the pool size of Asian

        19         Americans applicants to the law school generally, do

        20         you know?

        21   A.    I do not know.

        22   Q.    Do you know how it compares with, say, African

        23         Americans?

        24   A.    No, I don't.

        25   Q.    Professor Lempert, I have just a few more questions.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   201



         1         I'm almost done, I just want to make sure.

         2                        I won't get into alternatives to the

         3         Admissions program, we'll probably touch on that

         4         when we get into the expert testimony with

         5         Ms. Massie.  But let me ask you this.

         6                        In 1991 and '92 when you were

         7         preparing the policy, it's true, is it not, that

         8         when you were drafting it, neither you nor the

         9         committee looked at any studies regarding the

        10         purported educational benefits of diversity,

        11         correct?

        12   A.    I don't recall whether we did, I don't think we did

        13         as a committee.  Whether some of us had personally

        14         read those studies, or were dealing with those

        15         studies at that point, I'm not certain.

        16   Q.    Do you recall any discussion about any specific

        17         studies about educational benefits?

        18   A.    I do recall discussions of the educational benefits

        19         of diversity in our classes, but I don't recall any

        20         discussions of studies.

        21   Q.    Professor Lempert, let me just ask you finally.  Do

        22         you believe that each year there are Asian and for

        23         white applicants who are rejected by the University

        24         of Michigan Law School, but who had their skin color

        25         or ethnicity been the only change in their





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   202




         1         application, they most certainly would have been

         2         admitted?

         3   A.    You know I don't read the files, so I don't know

         4         what the whole person looks like.  But it certainly

         5         would not surprise me that if in competition a

         6         person who did not have membership in ethnically and

         7         historically discriminated against ethnic group, had

         8         that as a characteristic, that that would have made

         9         a difference in how the application was treated.

        10   Q.    Well, in fact, do you recall that it was your view,

        11         that in your words, I think that there are people

        12         who, if their application had been strengthened by

        13         belonging to a historically discriminated minority

        14         neighborhood, they would have been admitted to the

        15         law school, would that be your opinion?

        16   A.    I don't recall that, but I think I just said the

        17         same thing in so many different words.

        18                        MR. PURDY:  That's all I have.

        19                        THE COURT:  Mr. Goldblatt.

        20                        MR. GOLDBLATT:  Your Honor, I have

        21         nothing further.

        22   A.    Can I say something before you commence?  Can I just

        23         speak to Craig.

        24                        THE COURT:  It's highly unusual.

        25         We're here to seek the truth, if you want to talk to





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   203




         1         him that's alright.

         2                        MR. PURDY:  I have nothing further.

         3                        MR. PAYTON:  Thank you, Professor.

         4                        THE COURT:  Thank you, very much,

         5         professor.  Mr. Payton?

         6                        MR. PAYTON:  On the schedule that I

         7         announced, we will call Professor Raudenbush

         8         tomorrow morning.

         9                        THE COURT:  That's fine.

        10                        MR. PAYTON:  But we don't have

        11         another witness this afternoon, but we're right on

        12         schedule.

        13                        THE COURT:  Things are working just

        14         perfectly, so there is no problem at all.  And I

        15         know a lot of you are from out of state, if you have

        16         any problems tomorrow afternoon if you've got planes

        17         out of here or anything?

        18                        MR. KOLBO:  We're here until the end

        19         of next week, your Honor.

        20                        THE COURT:  I know, I wasn't sure if

        21         you were going home for the weekend.

        22                        MR. PAYTON:  We're going back to nine

        23         o'clock?

        24                        THE COURT:  Yes, nine o'clock

        25         tomorrow.  And since it's Friday if you want to quit





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   204




         1         a little early, that's fine, if you want to work

         2         until five that fine also.

         3                        MR. KESSLER:  We're keeping the

         4         Michigan team here, your Honor.

         5                        THE COURT:  That's okay.

         6                             (Court adjourned at 4:15 p.m.)

         7                         -     -     -

         8

         9

        10

        11

        12

        13

        14

        15

        16

        17

        18

        19

        20

        21

        22

        23

        24

        25





                          GRUTTER -vs- BOLLINGER, ET AL
 



Transcripts – Table of Contents


Legal Documents – Table of Contents