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.
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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
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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
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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
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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
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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,
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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.
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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;
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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?
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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.
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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.
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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
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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.
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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
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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
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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.
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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?
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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:
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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?
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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
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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
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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
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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
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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
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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.
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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
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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?
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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
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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
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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?
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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
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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,
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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.
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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
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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?
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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
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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
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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.
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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?
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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.
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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?
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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
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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.
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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,
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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
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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
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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
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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
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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?
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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
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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
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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.
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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
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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
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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
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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
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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.
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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?
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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.
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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.
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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?
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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
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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
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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
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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.
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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?
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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?
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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.
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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
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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
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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
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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
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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.
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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
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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?
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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
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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."
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
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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
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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
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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.
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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
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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?
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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
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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
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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.
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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
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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
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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
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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
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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
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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,
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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
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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
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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.
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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
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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
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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.
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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
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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?
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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.
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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 --
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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?
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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
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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,
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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
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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
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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.
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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.
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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.
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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
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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.
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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
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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.
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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.
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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
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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
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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?
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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.
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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
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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.
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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.
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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
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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
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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
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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.)
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