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




                                                                    1



        1                         UNITED STATES OF AMERICA

        2                   IN THE UNITED STATES DISTRICT COURT

        3                  FOR THE EASTERN DISTRICT OF MICHIGAN

        4                           SOUTHERN DIVISION

        5   BARBARA GRUTTER,

        6   for herself and all others

        7   similarly situated,

        8                Plaintiff,

        9             -vs-                                 Case Number:

       10                                                  97-CV-75928

       11   LEE BOLLINGER, JEFFREY LEHMAN,

       12   DENNIS SHIELDS, and REGENTS OF

       13   THE UNIVERSITY OF MICHIGAN,

       14                Defendants.

       15             -and-

       16   KIMBERLY JAMES, et. al.,

       17                Intervening Defendants.

       18   ______________________________________/         VOLUME IV

       19                              BENCH TRIAL
                         BEFORE THE HONORABLE BERNARD A. FRIEDMAN
       20                      United States District Judge
                           238 U.S. Courthouse & Federal Building
       21                     231 Lafayette Boulevard West
                               Detroit, Michigan   48226
       22                       Friday, January 19, 2001

       23       APPEARANCES:

       24       FOR PLAINTIFF:            Kirk O. Kolbo, Esq.

       25                                 R. Lawrence Purdy, Esq.




                                                                    2



        1       APPEARANCES (CONTINUING)

        2       FOR DEFENDANTS:           John Payton, Esq.

        3                                 Craig Goldblatt, Esq.

        4                                 Stuart Delery, Esq.

        5                                 On behalf of the Defendants

        6                                 Bollinger, et. al.

        7

        8                                 George B. Washington, Esq..

        9                                 Miranda K.S. Massie, Esq.

       10                                 On behalf of Intervening Defendants.

       11

       12       COURT REPORTER:           MARY F. WISNESKI, CSR-0231

       13                                 Official Court Reporter

       14

       15

       16              Proceedings recorded by mechanical stenography.

       17                Transcript produced by computer-assisted

       18                            transcription

       19

       20

       21

       22

       23

       24

       25




                                                                    3



        1                         I    N     D    E    X

        2      WITNESS                                                PAGE

        3        STEPHEN W. RAUDENBUSH

        4           Direct Examination by Mr. Delery                    5

        5           Cross-Examination by Ms. Massie                   118

        6           Cross-Examination by Mr. Kolbo                    121
      
        7           Redirect Examination by Mr. Delery                160

        7        DENNIS SHIELDS 

        8            Direct Examination by Mr. Payton                 162

        9            Cross-Examination by Mr. Purdy                   193

       10            Redirect Examination by Mr. Payton               215

       11            Recross-Examination by Mr. Purdy                 218
        
       12                     E    X    H    I    B    I    T    S

       13 

       14     NUMBER              IDENTIFICATION                  ADMITTED

       15      145      Expert Witness Report of S. Raudenbush          12

       16    146-150    Supp. Expert Witness Rep. of S. Raudenbush      12

       17      151      Raudenbush Curriculum Vitae                      9

       18    184-194     Charts of S. Raudenbush                       108
     
       19       5       Gospel According to Dennis                     188

       20

       21
       
       22      

       23

       24
       
       25
       
       

       

       





                                                                    4

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1                                                 Detroit, Michigan

        2                                                 January  19, 2001

        3    *                              *                             *

        4               THE COURT:  Good morning, everyone.  On the

        5      motions, I have nothing else on the agenda this case, why

        6      don't we start the case and when we take it a break

        7      sometime we'll argue those motions.

        8               MS. MASSIE:  That sounds great.

        9               THE COURT:  Is that good for everybody?  I'm all

       10      prepared, but I just don't want to waste your time this

       11      morning.  I know you have a witness.  This is yours?

       12               MR. DELERY:  Yes.  Good morning, Your Honor,

       13      Stewart Delery, Your Honor, again for the university and

       14      the individual defendants.

       15               THE COURT:  How are you.

       16               MR. DELERY:  If you're ready to proceed.

       17               THE COURT:  I'm ready.  If you're ready, I'm

       18      ready.  We call.

       19               MR. DELERY:  We call as our next witness, Stephen

       20      Raudenbush.

       21               THE COURT:  For evidence?

       22               MR. DELERY:  Thank you, Your Honor.

       23             S T E P H E N    W.   R A U D E N B U S H

       24             was called as a witness and after having been

       25             sworn was examined and testified as follows:





                                                                    5

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1                          DIRECT EXAMINATION

        2           BY MR. DELERY:

        3      Q.   Could you please state your name and address for the

        4      record.

        5      A.   Stephen W. Raudenbush, 7 Harvard Place, Ann Arbor,

        6      Michigan.

        7      Q.   And where do you work?

        8      A.   I work at the University of Michigan.

        9      Q.   What's your job there?

       10      A.   I'm a professor in the School of Education and the

       11      Department of Statistics, and I also have a joint

       12      appointment as a Senior Research Scientific at the Survey

       13      Research Center.

       14      Q.   How long have you been at the University of Michigan?

       15      A.   I've been at Michigan since January 1 of 1998.

       16      Q.   And where were you before that?

       17      A.   For fourteen years before that I was at Michigan State

       18      University.

       19      Q.   Well, Professor Raudenbush, could you please, please

       20      briefly describe your education, or educational background

       21      for the Court.

       22      A.   Sure.  I received my bachelor's degree from Harvard

       23      College in 1968 and my doctoral degree from Harvard

       24      University in 1984.

       25      Q.   Has your work at the University of Michigan and before





                                                                    6

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      that at Michigan State focused on any particular areas?

        2      A.   Yes, it has.  It's, primarily my work is involved

        3      applications of statistics in education, studying student

        4      learning, studying student transitions into college,

        5      studying how schools and classrooms effect academic

        6      achievement.  And also looking at other aspects of human

        7      development.

        8      Q.   Okay.  And have you published in these fields?

        9      A.   Yes, I have.

       10      Q.   About how many publications have you had?

       11      A.   Well, I guess if you count the second edition of our

       12      book on Hierharchical Linear Models, if you count the

       13      second edition of our book on Hierarchical Linear Models.

       14               THE COURT:  Do you want it spelled?

       15               (Whereupon an off-the-record

       16               discussion was had.)

       17      A.   H-i-e-r-h-a-r-c-h-i-c-a-l.  Okay.  There would be, if

       18      you count that one, there would be four books and quite a

       19      large number of referee journal articles and book chapters

       20      that I've published over the years.  I'm not sure exactly

       21      how many but I publish about four to six articles and

       22      chapters a year.

       23      Q.   Okay.  This may be a relative question, but are any of

       24      those publications particularly widely known?

       25      A.   Well, the book I mentioned, I won't mention the title





                                                                    7

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      again, has become very, very widely used in education

        2      because it deals with the problem of students being nested

        3      within classrooms, classrooms within schools.  Those kinds

        4      of problems become very widely used.  And other aspects of

        5      social science where we have people in neighborhoods, or we

        6      have small groupings of people, basically, which has some

        7      relevance to this case.

        8      Q.   Are you a member of any professional organizations?

        9      A.   I am.  I'm a member of the American Statistical

       10      Association, the American Educational Research Association.

       11      I'm a member of the National Academy of Education.

       12      Q.   What's the National Academy of Education?

       13      A.   Well, the National Academy of Education is an honorary

       14      association limited to 125 people in the United States who

       15      are involved in education and educational research.

       16      Q.   Have you held any editorial positions for journals or

       17      other publications in your field?

       18      A.   I have.  I've been an Associate Editor of the Journal

       19      of Educational and Behavioral Statistics for quite a large

       20      number of years.  I was the Chair of the Management

       21      Committee of that journal for six years.  I have served on

       22      the Publications Management Committee of the American

       23      Statistical Association.  I'm also the Associate Editor for

       24      the American Journal of Sociology, Educational Evaluation

       25      and Policy Analysis and actually several other journals.  I





                                                                    8

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      won't list them all.

        2      Q.   Okay.  Have you received any teaching or other honors

        3      in your field?

        4      A.   I have.  I received, while I was at Michigan State, I

        5      received three teaching awards.  I've also received several

        6      awards for outstanding publications in education and

        7      sociology.

        8      Q.   Okay.  Are there any awards or honors that you think

        9      are particularly significant?

       10      A.   I think perhaps the one that I'm, maybe most proud of

       11      is that in 1993 I received the Early Career Award for the

       12      American, from the American Educational Research

       13      Association, which is a very large group of educators and

       14      educational researchers around the country.

       15      Q.   What about national panels or symposia?  Have you

       16      participated in any of those?

       17      A.   Yes.  In the last, within the last three years, I

       18      served on the National Academy of Sciences' panel on the

       19      assessment of children in conjunction, basically testing,

       20      in conjunction with the Title I Program, which is a

       21      compensatory education program.  I also served on the

       22      National Academy of Science panel on early childhood

       23      science, which has just distributed a new book on childhood

       24      science with implications for policy and practice.

       25      Q.   Okay.  Professor Raudenbush, I'd like to ask you to





                                                                    9

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      look at Exhibit 151, which is, I think in binder six, Your

        2      Honor.

        3      A.   Okay.  I see it.

        4      Q.   Okay.  Is that a current copy of your CV?

        5      A.   It does indeed appear to be that, yes, a current copy.

        6      Q.   And does it include a current list of your

        7      publications and honors and professional experiences?

        8      A.   Yes, it does.

        9               MR. DELERY:  Your Honor, at this time, we'd offer

       10      Exhibit 151 into evidence?

       11               THE COURT:  Received.

       12      Q.   Now, Professor Raudenbush, how would you come to be

       13      involved in this case?

       14      A.   Actually, you asked me if I'd be willing to serve as

       15      an expert in this case.  Can you hear me?

       16      Q.   Yes, I can.

       17               THE COURT:  If anybody can't, let us know.

       18      A.   Yeah.  I had to move this because I can't turn the

       19      page.

       20               THE COURT:  Yeah, that's correct.

       21      Q.   And what was the purpose of your involvement in the

       22      case?

       23      A.   Well, I started by looking at some of the expert

       24      reports written by Professor Kinley Larntz and I then got

       25      involved in looking at the database myself, in trying to





                                                                   10

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      understand some of the issues involved in this controversy.

        2      Q.   Okay.  Were you present here in court for Dr. Larntz'

        3      testimony on Wednesday?

        4      A.   Yes, I was.

        5      Q.   And you were here for the entire day for all the

        6      testimony?

        7      A.   I was.

        8      Q.   And what about on Thursday morning, yesterday morning

        9      when he returned?

       10      A.   I was here then too, yes, correct.

       11      Q.   Dr. Larntz at one or two points said that he was

       12      responding to some criticism of his work.  Do you recall

       13      that?

       14      A.   I do.

       15      Q.   Were you the author of that criticism?

       16      A.   I'm quite sure that I was.

       17      Q.   And before this week, had you ever met Dr. Larntz?

       18      A.   No.

       19      Q.   Are you being compensated for your work in this case?

       20      A.   No, I'm not.

       21      Q.   And have you ever served as an expert witness before?

       22      A.   No, I have not.

       23      Q.   Have you prepared expert reports, based on your work

       24      in this case?

       25      A.   Yes, I have.





                                                                   11

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      Q.   Okay.  If you could look in the same binder there,

        2      binder six, I'd like for you to look at Exhibit 145 to 150

        3      and tell the court whether those are the expert reports

        4      that you submitted in this case?

        5      A.   Yes, these are, these are the expert reports.

        6      Q.   What information did you consider in preparing your

        7      expert reports?

        8      A.   Well, I read the law school admission policy, which

        9      was dated 1992.  And I examined data from the database made

       10      available by the law school.

       11      Q.   Did you review the expert reports of Dr. Larntz?

       12      A.   Yes, I read also each, each expert report that Dr.

       13      Larntz wrote.

       14      Q.   Okay.  And what about any deposition testimony in the

       15      case, did you review any of that?

       16      A.   Yes.  I read Dr. Larntz' deposition.  Of course I read

       17      my own.

       18      Q.   Did anybody help you with your work in this matter?

       19      A.   Yes.  Julia Smith, who was at that time a

       20      post-doctoral fellow at Michigan, helped me.  She's now an

       21      assistant professor.  And in certain aspects of the work

       22      the, basically the diversity of context for learning part,

       23      I received some help from two graduate students at the

       24      University of Michigan.

       25               MR. DELERY:  Your Honor, at this point we'd offer





                                                                   12

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      Exhibit 145 through 150 into evidence.

        2               THE COURT:  Any objection?  Received.

        3               MR. DELERY:  We'd also at this point offer

        4      Professor Raudenbush as an expert in the application of

        5      statistical methods to education.

        6               THE COURT:  Any objection?

        7               MR. PAYTON:  No.

        8               THE COURT:  Okay.

        9      Q.   All right, Professor Raudenbush.  I believe you

       10      mentioned that you reviewed Dr. Larntz' work in this

       11      matter.

       12      A.   That's correct.

       13      Q.   Do you have an opinion concerning, now just as a

       14      summary matter, we'll get into it in more detail.  But do

       15      you have an opinion concerning the reasonableness of the

       16      approach that Dr. Larntz took and his results?

       17      A.   I do.

       18      Q.   And what is that opinion?

       19      A.   I'm actually quite skeptical for two reasons.  Dr.

       20      Larntz attempted to construct a statistical model that

       21      could tell us the extent to which race is taken into

       22      account in admissions.  And I'm convinced that it's not

       23      logically possible to answer that question with such a

       24      statistical model.

       25               Moreover, certain methodological decisions made by





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                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      Dr. Larntz, I believe, have led to a misleading impression

        2      about the strength of association between minority status

        3      and admissions at the law school.

        4      Q.   Okay.  Now, you indicated that in addition to

        5      reviewing Dr. Larntz' work, you did some things of your

        6      own.  What did you do in your analysis?

        7      A.   Well, as I implied, I think it's, it's not possible,

        8      given the data at hand, to organize a statistical analysis

        9      that's going to tell us the extent to which race is taken

       10      into account in admissions.  What we can do, however, and

       11      what I think is very useful, is to do a causal analysis of

       12      the impact of using race in admissions on those who apply

       13      to the university or to the law school.

       14      Q.   Okay.  And what are the basic conclusions again, as a

       15      summary matter that you draw from your work in that

       16      context?

       17      A.   What we did, and we'll go into some detail on this, is

       18      we compared the current policy, which does use race as a

       19      factor in admissions to an alternative policy that would

       20      not use race as a factor.  And we estimated how that

       21      difference in policies would effect the average probability

       22      of admission of various people who apply, various

       23      sub-groups of people who apply at the University of

       24      Michigan.

       25               And essentially what we found, first, of course,





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                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      is that a change in the policy would effect people

        2      differently, depending on grades and test scores.  It would

        3      also effect people differently, depending on ethnic

        4      minority status.  A switch from the current policy to a

        5      so-called race-blind policy would have a fairly substantial

        6      effect, negative effect, on the probability of admission on

        7      minority candidates.

        8               On the other hand, such a change from, again the

        9      current policy to a race-blind policy, would have a

       10      comparatively modest effect on the positive effect, that

       11      is, on the average probability of admission of majority

       12      students.

       13      Q.   And from your work, do you draw any conclusions about

       14      the likely effect on the diversity of the law school class

       15      of moving to a race-blind admissions policy?

       16      A.   Yes.  We can then take the admissions probabilities

       17      under the current policy, as compared to an alternative

       18      policy.  And from that data, we're able to project the

       19      number of applicants, not only who will be admitted, but

       20      then using yield statistics, how many would then, in fact,

       21      attend the law school.  And then we can have an estimate of

       22      how the class composition would look of the first-year

       23      students at the law school.  And so we're then able to make

       24      some statements about the likely diversity with that class.

       25      Q.   And what do you conclude?





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                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      A.   And what we conclude is that switch from the current

        2      policy to a so-called race-blind policy would, would quite

        3      dramatically reduce the fraction of students who are from

        4      underrepresented minority backgrounds, and we'll define

        5      that as we go, and to try to understand the practical

        6      implications of that, we then took a look at how that would

        7      translate into the composition of various contexts for

        8      learning that occur in the law school.  And, again, the,

        9      how different classrooms and other context for learning

       10      would look under the current policy versus an alternative

       11      policy is really quite different.

       12      Q.   Well, with that sort of basic overview in mind, let's

       13      go back and talk in more detail about how you arrived at

       14      these conclusions.

       15      A.   Okay.

       16      Q.   What was, basically, the first thing that you did when

       17      you approached these data?

       18      A.   Well, the first thing we did, and we did this for each

       19      year between 1995 and 2000, was just to take a look at the

       20      basic data; who applied at the law school, who was

       21      admitted, who, how many people who were admitted decided to

       22      come to the law school, and then what was the composition

       23      of the first year class for each of those years.

       24      Q.   Okay.  And I think we've prepared a chart of an

       25      illustration of that, is that right?





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                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      A.   Yes.

        2      Q.   Is that right?  And I'd like to put up, if I could,

        3      Your Honor, Exhibit 184, the series of exhibits, I think,

        4      is in the supplemental exhibit file.  And the lights on

        5      would be fine, because they're just words today, no screen.

        6      A.   Your Honor, may I stand up and explain what's on the

        7      screen?

        8               THE COURT:  You may absolutely stand up and

        9      explain, yes, or we can move it closer to you so you can

       10      sit.

       11      A.   Yeah.

       12               THE COURT:  You're a professor, you're used to

       13      standing and talking.

       14      A.   That's right.  Either that or I'll have to get new

       15      bifocals.

       16               THE COURT:  Yeah, whatever.

       17      A.   That's fine, thank you.

       18               THE COURT:  I've got a pointer here if you'd like

       19      one, too, however you got to promise to give it back.

       20      A.   Right.

       21               THE COURT:  Because the government, again, we can

       22      get almost anything we want, but pointers.  They're hard to

       23      come by these days.

       24      A.   It will be hard to walk away with this.

       25               THE COURT:  Yeah.





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                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      Q.   All right.  So this chart is of the 2000 admissions

        2      data, is that right?

        3      A.   That's right.

        4      Q.   Why don't you explain what's here and what you find

        5      significant about these numbers?

        6      A.   Well, the basic idea behind this chart is that it

        7      shows quantitatively how a pool of applicants gets

        8      translated into people who actually attend the law school.

        9               And the thing to illustrate that, I'll just use

       10      the top row of the chart in 2000.  And we break this down

       11      by ethnic groups.  So just to take the first group here in

       12      2000, there were 262 African-American applicants and that

       13      constituted about 7.4 percent of the applicant pool.

       14               And of those 262 people, 36.3 percent were

       15      admitted.  And that led to 95 offers of admission for that

       16      group.  Now, of those people who were offered admission,

       17      only a minority, 40 percent, decided to come to the law

       18      school.  So if you multiple 40 percent times the 95 who

       19      were admitted, then you get the number of African-Americans

       20      who actually were attending the law school in 19, in 2000,

       21      and that turns out to be 38.

       22               So what you, basically, see is that this number on

       23      the left which is 262, ultimately becomes 38, through whose

       24      admitted and whether they decide to attend.  That's the

       25      basic idea on the chart.





                                                                   18

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1               Now, what we've done is, is to, to make this

        2      clear, and I think in conformity with the law school policy

        3      of admissions, is we've taken three groups;

        4      African-Americans, Hispanics and Native Americans and

        5      combined their data in the lower panel here to the data, to

        6      a group that we label those of underrepresented minority

        7      status.  So that --

        8      Q.   That's UMS?

        9      A.   And that's called UMS in this table.  And then we have

       10      taken data from the Caucasian group, Caucasian American,

       11      and those, those whose ethnicity is unknown, and again,

       12      that's in accord with our understanding of the how the

       13      policy works.  And we've taken their data and combined them

       14      into another group that we call them non-UMS.  They are the

       15      ones who are not in the underrepresented minority status.

       16               Now, that leads one group that I haven't

       17      mentioned, and that's the other group, the non-citizen

       18      group, and that group, we do not include in this table.  We

       19      could have looked at underrepresented minority status, yes

       20      or no, and foreign or foreign students.  But the numbers,

       21      in fact, there were only three foreign students attending

       22      in 2000, are really too small to do much with.  And it

       23      seemed that whatever was happening with minority status and

       24      non-represented minority status was somewhat different

       25      because this group is ethically very diverse, the foreign





                                                                   19

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      group, and yet they're not in these categories so we didn't

        2      include that small number of applicants.

        3               So then down at the bottom what we, basically,

        4      have are underrepresented minority students and

        5      non-underrepresented minority students and then a total.

        6      Q.   Do you find anything significant about the pattern of

        7      the numbers here on the bottom half of the chart?

        8      A.   Yeah.  There's several significant features of this

        9      table.  One is we just start by just looking at the

       10      applicant pool.  So we see that there are 484 applicants

       11      who are minority.  I'm just going to use the word

       12      "minority" and "non", I think, because it gets hard in

       13      saying.

       14               THE COURT:  That would be great.  We all

       15      understand.

       16      A.   And I'll try, and I often may use the word "race", and

       17      I don't necessarily mean "race".  We know there's ethnicity

       18      and it's complex, but I'll use it because it gets hard to

       19      use so many words.

       20               But so 484 minority applicants, and in contrast to

       21      2,871, majority applicants, or non-majority applicants.

       22      And so the pool sizes are very different.  There's a much

       23      smaller number of minority applicants than non.  So that's

       24      one factor that we -- it's very important in

       25      understanding -- the dynamics of this whole system is just





                                                                   20

                           1/19/01 - BENCH TRIAL - VOLUME IV

        1      the different sizes of that applicant pool.

        2               The next feature that's very important to look at

        3      is just the percentage admitted, because that's a crucial

        4      factor in, who ends up being in law school.  And what we

        5      see is that 35.1 percent of the minority applicants and 40

        6      percent of the non-minority applicants are admitted.

        7               And these numbers are quite reflective of what

        8      happens year to year.  Only a minority of people, of the

        9      overall applicant pool is admitted.  The numbers are pretty

       10      similar.  In general, the fraction admitted is smaller for

       11      the minority group than for the non-minority group.

       12      Q.   And is that true in each of the years from 1995 to

       13      2000?

       14      A.   That is true.  The general pattern is true each year.

       15      These numbers will fluctuate but the general pattern is

       16      true.  And the, from the point of view of promoting

       17      diversity, ethnic diversity, which is one of the goals

       18      stated in the admissions policy, these two facts; there is

       19      the small pool size and the comparatively small fraction of

       20      those admitted has important implications for the diversity

       21      of the class.  Because if this number is lower much, the

       22      number of people who actually attend can get very small.

       23               Specifically, in this case, with 35.1 percent of

       24      the minority applicants admitted, and then with the yield

       25      of 34.1 percent out of the 484 applicants who are minority,





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        1      what we see as actually attending, 58.  So 484 goes down to

        2      58.

        3               And if you're, you know, if you're interested in

        4      diversity, the size of this applicant pool, the fraction

        5      admitted and the yield are going to strongly effect this

        6      number, and I guess this percentage admitted is under --

        7      obviously under the direct control of the law school.  And

        8      if we shadow where we're going with our analysis, if this

        9      number were reduced significantly, this number 58 would

       10      begin to go down.

       11               I mean, if this number were cut in half, then we'd

       12      have only 29 minority students, so, and that would assume

       13      that the number of applicants and the yield would remain

       14      constant.  Do you see my point?  That if we cut this number

       15      in half, hold everything else constant, we're down to 29.

       16               THE COURT:  Or double it and it may go up?

       17      A.   Or double it and it will be go up to 116 if we double

       18      it.  So whatever we do here has big effects on this number,

       19      but we also need to take into account the possibility that

       20      changing this number could change this number.  It could

       21      change the number of people who apply.  It could also

       22      change this number, the number of people once admitted who

       23      might then decide to attend.

       24               So in particular, if this number were lower, this

       25      number could, would likely -- it probably wouldn't stay the





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        1      same.  A more likely outcome, if you lowered the

        2      probability of admission of a group, it might encourage

        3      fewer people to apply.  That's, we don't know.  And our

        4      analysis won't assume that, but the law school would have

        5      to take that into account as a possibility.  And lowering

        6      this number might also end up lowering the yield because if

        7      you, if you reduce this number substantially you would be

        8      left with, under a race-blind policy, the people who would

        9      be here would be extreme.

       10      Q.   "Here" being the number admitted?

       11      A.   The number admitted would be an extremely highly

       12      qualified group, in terms of grades, test scores and so

       13      forth.  And the yield for such a group may be, may be lower

       14      because there may be significant competition, among law

       15      schools for those people.  So changing this number could

       16      impact these numbers.  And with, with large effects on

       17      this, this relatively small number, 58, so that's, that's

       18      the key thing that's happening.

       19      Q.   Right.  So this chart is of the 2000 data.  Does your

       20      report include similar information for the other years?

       21      A.   It does.

       22      Q.   For the various reports?

       23      A.   We have a similar flow chart for each year from 1995

       24      to 2000.

       25      Q.   And is the 2000 data unusual, compared to the other





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        1      years?

        2      A.   The 2000 data are pretty similar in virtually all

        3      regards.  There's one slight difference here.  The yield

        4      for African-Americans candidates in 2000 was 40 percent,

        5      which is, which is higher than it had generally been in the

        6      other years.  So that number is a little higher than

        7      average, but other than that it looks.

        8      Q.   If we compared the, this data, including the number of

        9      applicants to some similar charts in Dr. Larntz' reports, I

       10      think there may be some slight differences, is that right?

       11      A.   I looked at those numbers.  The, the exact numbers are

       12      not identical and I don't really know why.

       13      Q.   You worked from the same database?

       14      A.   We worked from the same database.

       15               THE COURT:  Are they significantly different?

       16      A.   They're not significantly different.

       17      Q.   Okay.

       18      A.   The patterns that I'm describing are very similar, I

       19      mean, they're virtually identical in the two sets of

       20      figures.

       21      Q.   Now, in addition to your point about how, how the

       22      various percentages, in particular, can effect the number

       23      attending in each year, do you take any other basic

       24      conclusions away from looking at this basic descriptive

       25      data?





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        1      A.   There are a couple of other conclusions.  While,

        2      remember, I mentioned that a change in this percentage

        3      would lead to, perhaps, fairly large changes in this

        4      number; that is, the number admitted and also this number,

        5      the number attending, and that's for minority applicants.

        6               If changes in this number that are small would

        7      have comparatively modest effects, if, let's say, half of

        8      these people were rejected instead of, let's say, that

        9      would be, that would be, we have 170.  That would be 85

       10      people.  If those 85 places became available to the

       11      majority students and then these 2,871 would compete for

       12      those 85 places, and so that change, which is big here,

       13      that is in the minority row, would have a comparatively

       14      modest chain effect on the majority role, so that's one

       15      additional piece of evidence from this.

       16      Q.   And the comparison or the percentage admitted of the

       17      two groups, I think, what also might be called the average

       18      probability of admission, is that right?

       19      A.   Yes.

       20      Q.   Does that comparison tell you anything about the

       21      impact of considering race in admissions?

       22      A.   Well, this, we call it a, yeah, we call this bivariate

       23      association.  There are two variables.  There's the race of

       24      the candidate, and then there's the admission decision, and

       25      when we look at these two proportions, that gives us





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        1      evidence about that bivariate association.  Is there an

        2      association between race and admissions?  And we see a very

        3      small bivariate association, actually which favors the

        4      majority applicants.

        5               Now, we use, in statistics, we tend to look at

        6      these bivariate associations as a first take on what's

        7      going on, just simple data, there's no model, just look at

        8      the data.  And so we see this relationship.  And in

        9      conjunction with other bivariate relationships, my

       10      conclusion from this was that it, it leads one to be

       11      skeptical of a claim that race is a powerful predictor of

       12      the admissions decision.

       13      Q.   Not the end of the analysis but a starting point?

       14      A.   It's not the end of the analysis, but, let me expand a

       15      little bit.  If we look at, let's say, just the association

       16      between grades and admissions, there's a very strong

       17      relationship, even with higher grades are more likely to be

       18      admitted.  If we look, and we don't have to control for

       19      race to see that.  We just see that relationship.  If we

       20      look at the relationship between test scores, LSAT and the

       21      probability of being admitted, we see a very strong

       22      relationship, we don't have to control for anything else to

       23      see that.  We look at the relationship between race and the

       24      probability of being admitted, we see very little

       25      relationship.





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        1               So that, that tells us that race is unlikely to be

        2      a powerful predictor of the outcome.  It doesn't mean that

        3      race and admissions are not related controlling for other

        4      factors, but it does suggest that race will not be a

        5      powerful predictor for the admissions decision.

        6      Q.   Okay.  I think at this point you can probably take

        7      your seat again.

        8      A.   Thank you.  Your Honor.

        9               THE COURT:  No, just hold on to it.

       10      A.   Yeah, I need it again.

       11               MR. DELERY:  I think we may need it again.

       12               THE COURT:  Maybe you can move the chart just so

       13      the folks in the audience can see.

       14               MR. DELERY:  Sure.

       15               THE COURT:  Great.  Thank you.

       16               MR. DELERY:  I apologize.

       17      Q.   Now, in addition to the examination of the basic

       18      descriptive data, what did you do as part of your analysis

       19      in the case?

       20      A.   Well, as I mentioned, I'm convinced, and I think will

       21      explain why a little later.  But I'm convinced that we

       22      can't develop a statistical model that's going to tell us

       23      the extent to which race is taken into account in

       24      admissions.  What we can do and what I think is useful to

       25      do is to do a causal analysis.  What's the impact of the





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        1      policy that the university has of using race in admissions

        2      on the people who apply.  And that causal analysis is

        3      something that we can do with a minimum of assumptions.

        4      And so that's what I decided to do, and I thought that that

        5      would be informative.

        6      Q.   Okay.  Have you prepared a chart to sort of explain

        7      that causal connection?

        8      A.   Yes, I have.

        9      Q.   Okay.  I think for this one, you can probably just

       10      stay where you are with the easel where it is.

       11      A.   Especially with this.

       12      Q.   This is Exhibit 185, right, exactly with the long

       13      stick?

       14      A.   Right, with the long stick.  I don't have to get up.

       15      Q.   So this chart is called conception for causal link

       16      between race and admissions?

       17      A.   Right.

       18      Q.   What do you mean by that?

       19      A.   Well, in causal analysis and statistics, the way we

       20      think is that we've got, let's say, two alternative

       21      treatments.  We've got treatment A and treatment B.

       22               Now, for each person that we're interested in, we

       23      imagine the following, that that person has an outcome

       24      under treatment A and an outcome under treatment B, and the

       25      difference between the two outcomes is defined,





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        1      statistically, as the causal effect of the treatment.

        2               So if I, if one person has, let's say, I could

        3      randomly assign a person to have surgery for heart problem

        4      or I could randomly assign to have medicine, and the, and

        5      the person would have one outcome under the first

        6      treatment, another outcome under the second treatment.

        7      Causal effect is the difference between the two outcomes.

        8      So we applied that basic idea to the, to the scenario here.

        9      What we have on the left, what we have up here is, is a

       10      person, an applicant which and this person.

       11      Q.   You can tell we're not artistic.

       12      A.   Right.  I wouldn't want to be that person, but we have

       13      that person.  And this person is going to apply to the law

       14      school and that person might apply under policy A.  Policy

       15      A is the current policy, according to the admissions

       16      policy.

       17               And in that policy, it states a number of factors

       18      that are going to be taken into account, and I guess, I'll

       19      read them.  I don't know if you can see them all;

       20      undergraduate grades, the law school aptitude test,

       21      Michigan residency, minority status, gender is, could be

       22      considered, I assume as a force, a form of diversity.  The

       23      quality of the undergraduate school, the curriculum; that

       24      is the courses that the applicant took, trend in grades,

       25      not just are they how or were they going up, relationship





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        1      with family members who are alumni.  There are essays that

        2      are required, letters of recommendation and leadership

        3      experience.  A person may have displayed other unique

        4      experiences and talents and then unusual circumstances.  So

        5      this -- there's this list of factors that could be taken

        6      into account.

        7      Q.   And these are all things, if I could interrupt you for

        8      a second?

        9      A.   Yes.

       10      Q.   That are reflected in the policy, as you read it?

       11      A.   That's right.  I, I got these right out of the policy

       12      document itself.  And so our applicant comes and applies

       13      under policy A.  All of these characteristics are taken

       14      into account and the results is this person has a certain

       15      probability of admission.  We call it a probability because

       16      there's some uncertainty in what's actually going to happen

       17      here.  There's subjective judgments being made and there's

       18      some probability of admissions.  So we call that

       19      probability A.  So that's policy A.

       20               Now, if our same applicant were to apply under a

       21      different policy, and we're going to call that policy B,

       22      the result might different.  Policy B is, we label a

       23      race-blind admissions policy.  And the way we're, the way

       24      we're defining that is that all of the same factors that

       25      were taken into account under policy A would be also taken





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        1      into account under policy B with one exception, and that is

        2      underrepresented minority status.  That would not be

        3      considered.  So we call that a race-blind policy.

        4               So our applicant comes along now, low and behold,

        5      policy B is in effect.  These are taken into account, these

        6      factors, and the result is that our applicant has a

        7      probability of admission, a piece of B.

        8               And so with that scenario in mind, we can define

        9      the causal effect of policy A versus policy B as being the

       10      difference in the two probabilities of admission.  So if,

       11      let's say our applicant applied under policy A and got a

       12      piece of A, probability under B, a piece of B.

       13               Suppose those two probabilities were the same,

       14      identical, there would be no causal effect of a change in

       15      policy on that person.  Suppose, on the other hand, that

       16      these probabilities were very different.  A person was,

       17      let's say, you know, very unlikely to get in under policy A

       18      and very likely to get in under policy B, big causal effect

       19      of the policy.  So that's, basically, how we defined the

       20      causal effect.  And that was what set up our analysis.

       21      Q.   Now, why do you think it's important to look at this

       22      contrast between two policies in this case?

       23      A.   There are two reasons.  One is that a change from

       24      policy A to policy B could effect the diversity of the

       25      incoming class and that's one of the goals stated in the





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        1      admissions policy is to have an ethically diverse class,

        2      and so we can use this framework to assess the effect,

        3      causal effect on the change of policy on the diversity of

        4      the class.

        5               The other reason that it's important is that it,

        6      it's a way of gauging the causal effect of, on those who

        7      apply, I mean, I think that a person who applied to the

        8      university, or to the law school, would be very concerned

        9      about, are my probabilities going to be very different

       10      under these two, under these two policies.  If they were,

       11      that would have important effect on behavior of people who

       12      apply and it's just an important issue and it gauges the

       13      extent to which the current policy is strongly effecting

       14      the outcomes of people who apply.

       15      Q.   Okay.  And is this kind of comparison between

       16      alternative policies the standard way in your field to get

       17      at causal questions?

       18      A.   This has become the, essentially, the consensus in how

       19      we think about causation in statistics, two alternative

       20      policies, an outcome under each for each person and the

       21      causal effect being defined, as I mentioned.

       22      Q.   Now, how, if at all, does this conception, this

       23      approach, differ from what Dr. Larntz did?

       24      A.   Okay.  In Dr. Larntz' analysis, he's analyzing the

       25      data that were generated under policy A and computing





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        1      correlations or associations and trying to use those to

        2      make strong causal inferences.  And, as I mentioned, I'm

        3      convinced that that's not logically possible to do in this

        4      case.  This kind of analysis --

        5               THE COURT:  You say in this case, in any case?

        6      A.   With, well, I think part of the problem is the amount

        7      of available information.  With, if, with a great deal of

        8      information, one might be able to make a better, I think

        9      that's an important constraining piece, if there were

       10      enough information, but we really had very limited

       11      information about the people who apply, numerical

       12      information, so I think that's a key constraint on the, on

       13      a correlational approach.  Generally.

       14               THE COURT:  Well, you say.

       15      A.   Sure.

       16               THE COURT:  Limited numerical information.  What

       17      other, on your list, there's only certain things that can

       18      be equated to numbers.

       19      A.   Right.  And that's one of the difficulties in drawing

       20      a causal inference from numerical data is the --

       21               THE COURT:  Oh, I see.

       22      A.   If the important, if many of the important factors are

       23      not co-indentifiable.

       24               THE COURT:  I see.  Thank.

       25      A.   That would be a good reason why we didn't have that





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        1      information.

        2      Q.   Now, with this conception for the causal analysis in

        3      mind, what did you do next in your analysis?

        4      A.   What we tried to do then was to compare policy A and

        5      B, and I think we have an exhibit that displays how we

        6      approach that.

        7      Q.   Okay.  Let's put up Exhibit 186 now, the next chart.

        8      Does this chart illustrate how you approached your

        9      analysis?

       10      A.   It does.  Simulating would happen under policy A was

       11      very easy because we actually didn't have to simulate it.

       12      We have the data from the years '95 to 2000.  So we just

       13      actually used, we used the actual reported admissions

       14      results to compute probabilities of admission, average

       15      probabilities, of admission for various sub-groups who

       16      applied, and those were just based strictly on the data.

       17               Policy B posed us with a more challenging problem.

       18      We don't know what the effect will be on the probability of

       19      admission under policy B, because it's never been

       20      implemented.  So we have to make some assumptions.

       21               Essentially what we did was we had data on grades,

       22      on test scores, Michigan residency and gender.  And we can

       23      develop, based on past data a prediction equation that

       24      would predict the probability of admission, based on past

       25      data.  And then from that we can simulate what's happening





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        1      under policy B.  The problem we face is the same problem

        2      that Professor Larntz faced.  There's a lot of information

        3      that we don't have.  We don't know anything about the

        4      undergrad school curriculum, etc., essays, recommendations,

        5      all these other things, these long list of factors.  We

        6      don't have any numerical data.

        7      Q.   When you say "we don't know about those things", you

        8      mean that, as a statistician looking at the data you don't

        9      know?

       10      A.   Exactly.  As a statistician analyzing the numerical

       11      database, I only have access to a small fraction of the

       12      relevant information used in make admissions decisions, so.

       13      Q.   The admissions officers have more information than you

       14      have?

       15      A.   Exactly.  And that's why, that's one of the reasons

       16      why it's difficult to model those decisions.  They know a

       17      lot more than we do.  And we have to make assumptions about

       18      what we don't know.  In order to do this simulation, we

       19      have to assume, essentially, that all of these factors that

       20      we don't know anything about are not associated with the

       21      factors that are in our model.

       22               THE COURT:  So you have quite a few there?

       23      A.   That's right.

       24               THE COURT:  And Dr. Larntz testified that the

       25      fewer assumptions you make, and I'm not saying you have to





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        1      agree or not agree, but I'd like your opinion on it.  He

        2      testified that the fewer assumptions you make, the better

        3      your results are.  That when you start making assumptions,

        4      that it may skew it to subject -- I don't think you used

        5      the word, subjective, but at least it's more extensive.  In

        6      your model you're making assumptions, at least, as to one,

        7      two, three, four, five, six, seven, eight, nine, ten areas?

        8      A.   That's right, exactly.

        9               THE COURT:  So do you disagree with him?

       10      A.   Oh, I agree with him on that, absolutely, yes.  We're

       11      very concerned about the impact of the possible falsehood

       12      of these assumptions.  And there are almost certain to be

       13      some falsehoods here.  The question is the falseness of

       14      these assumptions, the question is to what extent does that

       15      effect the result.

       16               We know we're not going to really have the model

       17      right, but to the extent we have it wrong, to what extent

       18      does that have some effect on our results.  And that's what

       19      we then had to do in this was to, what we actually did was

       20      we did this simulation.

       21               We looked at the results.  We repeated the

       22      simulation a couple of other ways, but actually, this is,

       23      in some ways that I believe the great strength of the

       24      causal analysis.  We can put bounds on the errors of your

       25      our estimates that require virtually no assumptions, so we





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        1      can actually assess the extent to which errors in our

        2      assumptions effect our results in a very sure-minded way,

        3      and I'll try to explain how we did that as we go.

        4               So the way, the way it works is, is you do an

        5      analysis, based on assumptions, you look at the results,

        6      you try another analysis, generally, that's based on maybe

        7      some different, slightly different assumptions.  But then

        8      you try to bound the error in your results as a function of

        9      your assumptions, and we we'll show how we do that.

       10               MR. DELERY:  I think it will be easier to see

       11      that, Your Honor.

       12               THE COURT:  That's fine.

       13               MR. DELERY:  After we see the results.

       14      Q.   But before we leave this point, while we're on

       15      assumptions and just so we're clear, what, what is, or what

       16      are the assumptions about the factors below the line on the

       17      chart, as related to the factors above the line, just so we

       18      have that in mind?

       19      A.   Right.  Basically the assumption is that if any of the

       20      factors below the line are correlated with, with the

       21      factors above the line, then our estimate of the effects of

       22      the factors above the line will be biased.

       23      Q.   So --

       24      A.   And if they're biased, the predictions, the predicted

       25      probabilities will be potentially biased as well.





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        1      Q.   I think we'll come back to that as to how you dealt

        2      with that, is that right?

        3      A.   Yes.

        4      Q.   All right.  But before we go to look at the results,

        5      let me just ask you a couple questions about exactly what

        6      you did.  Did you, just as a general matter, did you use

        7      any particular kind of, of analysis to undertake the

        8      simulation?

        9      A.   We did.  We used -- the first method we used was

       10      called, logistic regression.  And I think we've had a

       11      discussion of that.  You have a binary outcome which is

       12      admitted, yes or no, and then you have a number of what we

       13      call explanatory variables, which are the ones here above

       14      the line.  And you are able to estimate an equation that,

       15      that estimates the relative weights of these factors on the

       16      probability, the log odds of admission, and ultimately we

       17      can translate like that into the probability of admission.

       18      Q.   So -

       19      A.   We've talked about that in court.  And I assume we

       20      don't need to necessarily say much more about it.  I think

       21      Professor Larntz explained what that was.

       22      Q.   And so Dr. Larntz also used logistic regression, of

       23      course, as part of his analysis?

       24      A.   Yes.

       25      Q.   And we'll get back to Dr. Larntz' regression models.





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        1      But are there general things that you can say about how

        2      your regression analysis differed from, in addition to the

        3      conception from what Dr. Larntz did?

        4      A.   We, yes.  We actually estimated our models separately

        5      for minority and majority applicants.  And the reason we

        6      did that was that we found that the association between

        7      minority status and admissions was strongly dependent on

        8      grades and test scores; that is, we found that, for

        9      example, applicants who had very high grades and test

       10      scores, for those applicants minority status has a very

       11      small effect, or very small association.  And for

       12      applicants in other cells the association is considerably

       13      stronger.  So because the association between minority

       14      status and these factors varied, what statisticians then do

       15      is, they say we can't estimate one model for everybody, we

       16      then do the models separately.

       17      Q.   Did you exclude any of the applicants for which you

       18      had data from your analysis?

       19      A.   No.  We used -- oh, I should say, we did exclude

       20      people, a very small number of people have have no grades.

       21      There's just, they don't have grades in the database.  It's

       22      a tiny fraction, or they don't have LSATs, so those people

       23      we excluded.  But we excluded no cases based on their

       24      outcomes.

       25               And this is a very important point.  When you





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        1      start excluding cases from an analysis based on the outcome

        2      of the admissions decision, you get into some significant

        3      biases and we did not do that.

        4               (Whereupon an off-the-record

        5               discussion was had.)

        6      Q.   All right.  So with the simulation model or regression

        7      model, how did you conduct your simulation?

        8      A.   So what we did was we actually, for each year, we did

        9      the analysis I mentioned, we did it separately for majority

       10      and minority applicants.  We actually used the majority

       11      equation in predicting the probabilities of admission under

       12      the race-blind policy.  We assumed that under the so-called

       13      race-blind policy that the majority equation, which has

       14      more cases involved in the estimation would be more like, I

       15      mean, the average equation would be more like that.  So we

       16      used that equation.

       17      Q.   Okay.  And with that equation, what did you do?

       18      A.   Well, based on that equasion we could compute the

       19      predicted probability of admission under policy B for any

       20      applicant, and then we could combine those within ethnic

       21      groups to predict the average probability of admission for

       22      any sub-group of applicants in this case, as a function of

       23      ethnicity.

       24      Q.   And so from that you can estimate how, what the

       25      percentages admitted would look like?





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        1      A.   Exactly.  From that we're able to compute the average

        2      probability of admissions for ethnic, for minority and

        3      majority applicants, and compare it to the observed

        4      probability of admission under the current policy.

        5      Q.   All right.  I'm going to ask just one other thing

        6      about the simulations.  Are you able to, are you able to

        7      say, based on the simulation, what would happen to any

        8      particular applicant under the alternative policy?

        9      A.   No, we're not.  And this is one of the ironies of

       10      causal inference and causal modeling.  For any person,

       11      we'll never know the two probabilities.  In order to do

       12      that -- we can't even imagine how to do it.  We'd have to

       13      have both policies in operation and we'd have to have them

       14      implied under both policies and see all the results.  But

       15      we can't do that.  And that's generally true in causal

       16      inference.  We can't compute the causal effect for any

       17      specific case.  What we can compute is called the average

       18      causal effect.  In this case, it would be the average

       19      probability of admission under policy A, minus the average

       20      under policy B for sub-groups of applicants.

       21      Q.   Now, let's look at, if we could what happened in your

       22      simulations.  I think the next Exhibit is 187 in the same

       23      category.

       24      A.   Now, mind you --

       25      Q.   Yeah, why don't you first tell us what the columns





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        1      are.

        2      A.   Right.

        3      Q.   And then --

        4      A.   Yeah.

        5      Q.   Explain what the results are?

        6      A.   Let me just preface it by saying that the results of

        7      policy B are going to be those based on the model I just

        8      described, but we also replicated this analysis using

        9      another, actually a couple of different regression models

       10      we tried.  But we also used another method, which we can

       11      describe a little bit later.  But under the method that I

       12      just described --

       13      Q.   Can I, let me just ask you --

       14      A.   Yeah.

       15      Q.   Are the results under the other methods substantially

       16      different?

       17      A.   They're not substantially different.  They're somewhat

       18      different but in the main, they're very, very similar.

       19      Q.   All right.  So why don't you explain what you have on

       20      the chart and then what the results showed.

       21      A.   Okay.  What we have on the chart are two columns,

       22      policy A, again, that's the current policy; policy B, this

       23      is the so-called race-blind policy that I mentioned.

       24      Q.   And just so we're clear, the number in policy A is the

       25      actual observed data?





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        1      A.   Right.  And so we have for minority and non-minority

        2      applicants, and for each year, the predicted -- well, in

        3      this case under policy A, the actual observed average

        4      probability of admissions.  And then under policy B, the

        5      average probability of admission for that same group.

        6      A.   So again looking at 2000, we've been looking at 2000.

        7      The average probability of admission in 2000 for minority

        8      applicants was .35.  We project that under policy B the

        9      average probability of admissions would be .10, which is,

       10      which is quite a large difference.  And that type of result

       11      occurs in each year.  They're pretty similar.  There's some

       12      exceptions.

       13               It turns out that 1995 is a bit extreme in terms

       14      of the change in the probabilities for the minority group.

       15      But, but it follows the same pattern.  It's, and the other

       16      years are very similar to, to the year 2000.  So we see

       17      then in some, a quite sharp reduction in the average

       18      probability of admission of the minority applicants under

       19      policy A and policy B.

       20      A.   Now, if we move down to the bottom panel, we have the

       21      results for the non-minority applicants under each year.

       22      So, again let's just take a look at, for illustration of

       23      the year 2000 under policy A the average observed, average

       24      probability of admission was .40, 40 percent of those who

       25      applied were admitted.  We project that under policy B,





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        1      this is a race-blind policy, that would increase.  It would

        2      increase from .40 to .44.  So it would be rather marked,

        3      small or marginal increase in the average probability of

        4      admission, .40 to .44.

        5      Q.   And are the results similar for the other years?

        6      A.   And the results are very similar for other years.  It

        7      tends to be, .99 goes 41 to 45, again the difference being

        8      .04.  In some cases it's .05.  I think the actual biggest

        9      one we see is in '95, not surprisingly, which is .06, .28

       10      up to.34.

       11      Q.   Now, why is it, Professor Raudenbush, that the change

       12      in the average probability of admission is fairly large for

       13      the minority students and fairly small for the non-minority

       14      students?

       15      A.   It's a very straight-forward result of the difference

       16      in the sizes of the applicant pools.  There are relatively

       17      few minority applicants, a small -- a large change in the

       18      probability, a large reduction in the probability of

       19      admission of those candidates translates into a very small

       20      increase in the probability of admission of the majority

       21      group, because it has so many more applications; basically,

       22      any extra, sort of admission seats, if you will, or admits,

       23      could become available by reducing this probability, will

       24      be competed for by a large number of people.

       25      Q.   Now, as Judge Friedman alluded to earlier.





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        1      A.   Right.

        2      Q.   These simulation results are based on regression

        3      models which involve assumptions, correct?

        4      A.   Right.

        5      Q.   How can you be confident, given those assumptions

        6      about these results here?

        7      A.   Right.  Well, the first thing we did, as I mentioned,

        8      was we did use an alternative method to do the simulation,

        9      and as you asked me were the results similar and the answer

       10      was, yes, they were very similar.

       11      Q.   So the fact that you got similar results says what

       12      about these?

       13      A.   From an approach that did not use logistic regression

       14      at all, and I'll explain exactly what we did a little bit

       15      later.  But the most important way that we can bound our

       16      error, if you will, is much more straight forward and

       17      requires an absolute minimum of assumptions.  And I think I

       18      can maybe demonstrate that with a different exhibit.

       19      Q.   All right.  Why don't we go.

       20               THE COURT:  Let me ask you one question?

       21      A.   Sure.

       22               THE COURT:  You can also conclude from that chart

       23      that by having a race-blind policy that, looking at 2000,

       24      for example, that there's a 25, obviously a 25 percent

       25      difference, so that.





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        1      A.   Right.

        2               THE COURT:  That's right.  So you could also say,

        3      could you not, that the effect is, the effect having a

        4      policy that's not race blind is about 25 percent?

        5      A.   A difference in probabilities of .25, yes, right.  And

        6      people do this in different ways.  We talk about odds,

        7      ratios of probability.  Sometimes differences in

        8      probabilities are the most straight-forward way of

        9      interpreting the results.  It depends on the situation.

       10      Q.   Let me ask a related question.

       11               THE COURT:  Well, go on.

       12               MR. DELERY:  Please.

       13               THE COURT:  You ask, I'll get mine later.  He may

       14      answer.  If he doesn't.

       15      Q.   Before we look at the bounding point, in your view, do

       16      these numbers here, the results of your simulation analyses

       17      say anything about the extent to which race is considered

       18      by admissions officers in making their decisions?

       19      A.   They don't.

       20      Q.   And why is that?

       21      A.   Let me explain what could generate this difference in

       22      probabilities.  If you have a large, a much larger

       23      applicant pool than can be admitted, so you have many more

       24      people apply than you can accept; and if grades and test

       25      scores are very important, play an extremely important role





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        1      in the admissions decision, then a very small difference

        2      between two groups can lead to a large difference in the

        3      probability of being admitted.

        4               And so under this, under our simulation of the

        5      race-blind policy, grades and test scores are playing a

        6      very important, and extremely important role because we

        7      don't have any other data, basically.  We know that there

        8      are many more applicants than there are seats.  And we know

        9      that there's a small difference between minority and

       10      non-minority applicants.  And that explains why this

       11      difference turns out to be big.

       12      Q.   So.

       13      A.   And it doesn't.

       14               THE COURT:  Turns out to be big?

       15      A.   Big, yes, these numbers are quite different.  That

       16      doesn't depend on how heavily the admissions officer weigh

       17      race.  It's a function of the fact that you're heavily

       18      weighing a factor on which two groups have a different

       19      mean.

       20               THE COURT:  A different what?

       21      A.   A different mean, a different average.

       22               THE COURT:  Mean.

       23      A.   Right.

       24      Q.   Just so I have a sense of the terminology here, is it

       25      your view that there's a difference between measuring the





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        1      effect or impact of the policy on the one hand?

        2      A.   Right.

        3      Q.   And the extent to which a particular factor is

        4      considered in an admissions process on the other?

        5      A.   There's a great deal of difference.  And I might add,

        6      especially in this case, the causal impact of the policy is

        7      much more excessible to statistical investigation than is

        8      an attempt to discern how people who are making decisions

        9      about admissions are weighing one of many factors, when we

       10      don't have any information about most of the factors.  It's

       11      just a very difficult thing to do, statistically.  We

       12      basically can't do it.

       13               So, but we can assess the impact of what they do.

       14      We don't know why it has that impact.  You see, there's a

       15      big difference between finding a causal effect and

       16      explaining the causal effect, knowing why it happens.

       17               There are lots of things in social science,

       18      medical science, where we know there's an impact on

       19      something, but there's so many possible explanations.  And

       20      we don't have the information to explain the explanation.

       21      So this analysis can be conducted with a minimum of

       22      assumptions and with a considerable amount of confidence,

       23      whereas the more, the much more challenging task of trying

       24      to use statistical information to discern how people who

       25      have much more information than we do, how they think.





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        1      This is much more difficult.

        2      Q.   I think we'll come back to this question of extent a

        3      little bit with some additional illustrations, but let's

        4      return to the bounding point?

        5      A.   Right.

        6      Q.   That you were on, if we could.  And I think the next

        7      exhibit is 188.

        8               MS. MASSIE:  Judge Friedman, I don't know if this

        9      is, if we could take a quick break, that would be great.

       10               THE COURT:  Of course, how much do you want?

       11               MS. MASSIE:  Five minutes.

       12               THE COURT:  Okay.  We'll take a five-minute break.

       13               (Whereupon an off-the-record

       14               discussion was had.)

       15               THE COURT:  Okay.  You may be seated.  Thank you.

       16               MR. DELERY:  Thank you, Your Honor.

       17      Q.   Professor Raudenbush, I believe we had been talking

       18      about the simulation results for the minority students on

       19      the one hand and the non-minority students on the other

       20      hand and the bounding issue that you?

       21      A.   Yes.  Just to recreate where we were, the key result

       22      here was that the effect of going from policy A to policy B

       23      was quite big for the minority students.  Like in 19, in

       24      2000 it was 25 percentage points, whereas the effect going

       25      from policy A to policy B on the non-minority students was





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        1      quite small.

        2               So in 2000, going from forty, .40 to .44, so going

        3      up on four percentage points.  So that's where we were, and

        4      the question is the problems with this model.

        5               As we discussed, policy A, policy B is based on a

        6      simulation.  It's based on a model.  The model has to make

        7      assumptions.  The assumptions, not might be, but probably

        8      are wrong, and so how far off might we be, as a result of

        9      failure of those assumptions, and that was our next step.

       10      Q.   Okay.  And here, are you talking about the assumptions

       11      that the factors not in the model are unrelated to the

       12      factors in the model?

       13      A.   Correct.

       14      Q.   Did Dr. Larntz' model include the same assumptions?

       15      A.   Yes.

       16      Q.   Well, why don't you move to the next chart, actually,

       17      and tell us what you did.  The next chart will be 188.

       18      Tell us what you did to evaluate how reasonable your

       19      results were, in light of the assumptions.

       20      A.   What we did was we used an idea that has a fancy name

       21      but it's a real simple idea.  The fancy name is, these are

       22      non-parametric upper and lower bounds on causal effects.

       23      The simple idea is how, how small could the effect be and

       24      how big could it logically be.  And here's how simple it

       25      really is.





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        1               Again, let's just focus on 2000.  And we're

        2      looking at majority students here.  And we see that in 2000

        3      40 percent of them were admitted.  How small could the

        4      effect be of going to policy B?  Well, logically it seems

        5      that the smallest the effect could be would be there

        6      probability would stay the same.

        7               In other words, we go to a race-blind policy and

        8      there's no impact.  It goes from .40 to .40.  It logically,

        9      it logically can't really go down.  It's hard to imagine

       10      how eliminating race as a factor would make things worse

       11      for, for majority students.  So .40 is the lower bound for

       12      the effect.  So zero percentage points, .40 to .40.  The

       13      upper bound is, is constructed, again, very simply; how big

       14      could the effect be.  The biggest it possibly could be

       15      would be if every minority students were rejected under

       16      policy B.  If you eliminate race as a factor and every

       17      single minority students were rejected, then that means

       18      that's the biggest effect it could be.

       19               And under that scenario, the upper bound is .46,

       20      so that means the difference between the lower bound and

       21      the upper bound is .06.  That's six percentage points.  Our

       22      estimate, based on our simulation is .04.  It's kind of in

       23      between the lower bound and the upper bound.  So our .44 is

       24      undoubtedly wrong, to some degree, but to what degree can

       25      it be wrong, the upper and lower bound tell us, it can't





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        1      be -- the lower bound is a .04 error, the upper bound is a

        2      .02 error and those bounds don't require me to make any

        3      assumptions about what's in the model, what's not in the

        4      model.  Those are logical upper and lower bounds.

        5      Q.   So based on the bounds that you found and, as compared

        6      to the simulation results, do the bounds give you

        7      confidence in, in your models and in your analysis?

        8      A.   They give us confidence in the causal effect of the

        9      policy change on the majority students.

       10      Q.   And that's what this chart shows?

       11      A.   That's what this chart shows.  Now, I should add that

       12      the bounds on the causal effect for the minority students

       13      are wider because like when, I think in 19 -- in 2000 we

       14      went from, I think it was something like .34 to ten.  The

       15      extreme bound would be to zero.  So from .34 to zero.  So

       16      they were a little bit wider.

       17               There's a little more uncertainty as to how the

       18      switch in policy would effect the minority students.  But

       19      there's a great deal more -- I should say a great deal less

       20      uncertainty about how the change in policy would effect the

       21      majority students.

       22      Q.   Did Dr. Larntz do any kind of similar bounding

       23      analysis on the results of his regression model?

       24      A.   I didn't see any evidence of it in the reports.  And I

       25      didn't hear him put an upper and lower bounds or a





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        1      confidence interval on the odds ratios.

        2      A.   By the way, a confidence interval is a weaker bound,

        3      much weaker than a non-parametric up upper and lower bound

        4      because this bound has virtually no assumptions.  The only

        5      real assumption I'm making is that going from policy A to

        6      policy B wouldn't hurt the majority students, and that seem

        7      indisputable.

        8      Q.   So these results tell us what the expected

        9      probabilities of admission are for, on this chart, the

       10      majority students and on the earlier chart also, the

       11      minority students?

       12      A.   Correct.

       13      Q.   Did you take that analysis any further?

       14      A.   Yes, I did.  Once we have predicted probabilities of

       15      admission or average probabilities of admission for

       16      sub-groups, we can then develop a picture of what the

       17      composition of the first-year class would look like under

       18      policy B.  Of course we already know the composition of the

       19      class under policy A.  It's what we observed.

       20               And to do this is really very straight forward.

       21      We take the probabilities of admission under policy B.  We

       22      multiple that by the yield which is what fraction of people

       23      who were admitted decided to come to Michigan, the one that

       24      was actually observed.  And that can then give us the

       25      expected number of people in each, of each group for each





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        1      year.

        2      Q.   Okay.  I think we have a chart showing those results.

        3      A.   Yes.

        4      Q.   It's Exhibit 129.  Just so I'm clear about your last

        5      point, Professor Raudenbush, you're assuming in this part

        6      of the analysis that the yield rate would not change?

        7      A.   That's correct.

        8      Q.   If the university moved to a race-blind admissions

        9      policy?

       10      A.   Exactly.  We're, it could arguably go down if this

       11      change were made, in which case our results would

       12      understate the impact on diversity.

       13               We're also assuming, as years go by, that the size

       14      of the minority applicant pool would not be effected by a

       15      sharp reduction in the probability of admission, which is,

       16      which is another conservative assumption.  It seems

       17      reasonable that if the probability of admission goes down,

       18      the number of people who would take the time and effort and

       19      pay the price of climb might well go down, but we didn't

       20      assume that that would happen.

       21      Q.   Why don't you look at this chart, Exhibit 189, and

       22      tell us what it shows about this next step of your

       23      simulation analysis?

       24      A.   Okay.  Again, it's divided.  As we go down the, down

       25      the rows, we see the years.  We have under policy A and





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        1      under policy B and in each case what's in here is the is

        2      the composition of the class.  So for policy A it's going

        3      to be the actual composition that happened in that year.

        4      Under policy B, it's what we would predict, based on the

        5      simulation.

        6               And again, why don't we just, for illustration,

        7      stick with 2000.  Under the current policy, 170 minority

        8      students were admitted and based on the yield, 58 actually

        9      attended.  And that was, that turned out to be 14.5 percent

       10      of the class.

       11      Q.   Those numbers were taken from the first chart that we

       12      saw today?

       13      A.   That's right.  Those are just the actual observed

       14      numbers.  Under policy B, we, we would predict that only 46

       15      minority students would be admitted.  And then applying the

       16      yield, that would lead to 16 attending.  So only 16

       17      minority students, from 58 down to 16, and then that would

       18      be four percent of the class, so our, our analysis would,

       19      would predict a reduction in the fraction of students who

       20      are minority from 14.5 percent to 4.0 owe percent.

       21      Q.   So what, if anything, do these results, I guess I

       22      should back up and ask, is 2000 unusual in this respect,

       23      or?

       24      A.   The basic pattern of 2000 appears each year.  We see

       25      very similar results.  Again, there's a little more extreme





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        1      result in 1995, but it's basically in the same direction,

        2      same pattern, and the other years are very similar.

        3      Q.   So what did these results tell you, if anything, about

        4      the expected diversity of the law school class under a

        5      race-blind admissions system?

        6      A.   Right.  So we did see that under this simulation, that

        7      the overall composition of the class, which, in 2000 was

        8      14.5 percent minority, would be very substantially less

        9      diverse with only four percent of the students being from

       10      minority background.

       11      Q.   I think you indicated that there would be somewhat

       12      over a hundred fewer minority students admitted, your model

       13      predicts, under the alternative race-blind policy?

       14      A.   Right.

       15      Q.   What would happen to the spaces in the class that, I

       16      guess, those students had accounted for under the current

       17      policy.

       18      A.   Right. Well, --

       19               MR. KOLBO:  Object to the form, basis, Your Honor.

       20               THE COURT:  I think it's a pretty obvious answer,

       21      but why don't you rephrase it.

       22               MR. DELERY:  Okay.  I'll rephrase it.

       23      Q.   Can you tell us anything about what the model predicts

       24      about where the hundred-plus spaces that had been under the

       25      current policy given to admitted minority students?  What





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        1      would happen to those spaces under your alternative

        2      simulation?

        3      A.   Right.  Under our alternative simulation, those places

        4      which look to be approximately 134 places would be competed

        5      for by all of the non-minority students; that is,

        6      approximately three, 2,800, whatever the number was, of

        7      students that would compete for those places.  That's the

        8      way we've constructed the simulation.

        9      Q.   Okay.  Now, using these numbers, the predicted

       10      composition of the law school class as a whole under your

       11      alternative policy, did you do anything to look at how that

       12      would translate into the more day-to-day activities of the

       13      law school?

       14      A.   Yes, I did.  And I believe we have an exhibit that

       15      displays that.  Essentially, what we --

       16      Q.   Why don't we put the exhibit up, if we could.

       17      A.   What we did, while that's being put up --

       18      Q.   -- This is 190, by the way.

       19      A.   People at the law school supplied me with a list of

       20      some of the important contexts for learning that arise at a

       21      law school.  They're listed here and they range in size.

       22      The first-year section is the biggest one, 85 students are

       23      in the first-year section where students take many of

       24      their, several of their required classes.  The smallest is

       25      a moot court team which is just pairs of people in a moot





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        1      court, and, and there are other contexts.  Each one has a

        2      size.  And what we did next was to ask questions about the

        3      likely composition of these contexts for learning under

        4      policy A, which is the current policy again; and policy B.

        5      And that's essentially what we did.  And I think we have an

        6      exhibit that displays the results.

        7      Q.   Okay.  In your view, these, these contexts were

        8      representative?

        9      A.   I was told by the people that supplied these, actually

       10      through your office, that these were the representative

       11      contexts.  And they cover the range of sizes of various

       12      contexts.  And what's really important from the point of

       13      view of statistics here is the size of the context and how

       14      does that then look, in terms of its ethnic and

       15      composition.

       16      Q.   Why don't we put up the next chart, if we could.

       17      That's 191.  What does this chart represent, Professor

       18      Raudenbush?

       19      A.   Okay.  So what we've been done is asked questions

       20      about the expected composition of each learning context,

       21      from the standpoint of a majority student and from the

       22      standpoint of, we just picked African-American students  We

       23      wanted to have a definite type of person, rather than a

       24      minority student in mind when we thought about this.  And

       25      we didn't do it for all of the contexts.





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        1               We picked three represent -- three that were sort

        2      of across the range of sizes.  We picked the first-year

        3      section, which has 85, then the second row is the half

        4      section.  And then the residential dormitory entryway.

        5      This is an entryway of a dormitory and approximately 25

        6      students would be in that entryway.

        7      Q.   And the results for the other contexts are reflected

        8      in your report?

        9      A.   They're in my report, right.  And I think you, this

       10      basically captures what's going on here.  I don't think

       11      it's necessary to go through all these numbers.  I might

       12      just pick one of them and kind of explain.  The first-year

       13      section, the biggest context, let's take it from the point

       14      of view of the majority student.

       15               What's the probability that that would be

       16      segregated in the sense that that would be no minority

       17      students under policy A and policy B.  And the answer is

       18      it's a very small like likelihood.  Under either policy

       19      it's unlikely that there would be no minority students.

       20      It's actually .00 versus .03.

       21               But then let's ask another question, well, what's

       22      the probability that there would be at least, at least

       23      three minority students.  And it could be nearly certain,

       24      which is, approximately, pushing toward 1.0 under policy A,

       25      whereas under policy B that would only happen two thirds of





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        1      the time.  There would be a one-third chance of not having

        2      as many as three in that section.

        3               And then for, what's the probability that there

        4      would be, at least three African-American students and at

        5      least three Hispanic students in that group of 85.  Under

        6      policy A it's almost certain to occur.  Under policy B,

        7      approximately one time out of four.  So it's actually not

        8      likely to have that agree of diversity.  That's the biggest

        9      section.  The effects of the policy are more pronounced

       10      when we go to smaller-size sections.

       11               For example, for example, just take, take the, the

       12      residential dormitory, what's the probability of having at

       13      least three minority students, .75 in that residential

       14      dormitory, to picture, 25 people who live in the dormitory,

       15      .75 probability that at least three of those people would

       16      be minority under policy A.  Under policy B, .08, a very

       17      unlikely matter.  So that kind of demonstrates what's going

       18      on from the point of view of the majority student.

       19               Things are a little bit different from the point

       20      of view of an African-Americans student because, you know,

       21      the African-American has to be in the context before we can

       22      ask what's happening.  So given that there is an

       23      African-American, we ask questions, the following

       24      questions; what's the probability that you'd be the only

       25      African-American student in that context, or, you know





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        1      what's the probability of three or more of those.

        2               So just, we could say, again, take, take the

        3      residential dormitory example, under policy A, that's the

        4      current policy -- there's a pretty small chance that you'd

        5      be the only African-American student, .18, in this

        6      residential dormitory.  Under policy B, .69, it's very

        7      likely that you would be the only African-Americans student

        8      in the dormitory.  And the probability of at least three,

        9      at least two other African-American students would be,

       10      would be relatively high under policy A, .56, at least

       11      better than half, and very low, .07, under policy B.

       12               So I think this gives some flavor of our

       13      expectations about what would happen to the diversity of

       14      certain contexts for learning under a change in policies.

       15      Q.   All right.  Now, taking all of these simulation

       16      analyses together, the overall picture that you've

       17      presented here this morning, what conclusions, if any, do

       18      you draw about the impact of using race in law school

       19      admissions at the university?

       20      A.   I draw several conclusions.  The first is that the

       21      impact on the probability of admission of minority

       22      candidates would be quite substantial.  There would be

       23      quite a sharp reduction in the probability of admission.

       24      The second conclusion would be that the impact on majority

       25      applicants would be modest, by comparison.  There would be





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        1      a small increase in the average probability of admission

        2      for majority candidates.  And about that conclusion, I feel

        3      considerable confidence.

        4      Q.   And again, why do you think there is that difference?

        5      A.   And the reason that that's, that difference occurs,

        6      that is, you know, why does it effect minority students

        7      more than majority students, it's simply a result of the

        8      smaller pool of applicants of the underrepresented minority

        9      group than of the majority group.

       10      Q.   Now, so by giving these views and these estimates of

       11      the impact of considering race and admissions, are you

       12      saying anything about the extent to which the race of an

       13      applicant is considered by the admissions people?

       14      A.   No.  We're not making any inferences about how heavily

       15      this is being weighed by the people who are making the

       16      admissions decisions.  We don't have information about that

       17      question.  But we do have information about the impact.

       18      Q.   And are these impacts, estimates, telling anything

       19      about the relative weights of any of the factors in the

       20      admissions process?

       21      A.   No.  They're not quantifying the relative weights of

       22      anything in the process.

       23      Q.   Okay.  So as I think you indicated before, this

       24      simulation results, simulation analysis, I should say, is a

       25      different approach from the approach that Professor Larntz





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        1      took?

        2      A.   Correct.

        3      Q.   Is that your view?

        4      A.   Correct.

        5      Q.   Is that your view?

        6      A.   That's right.

        7      Q.   How does your simulation analysis bear on an

        8      evaluation of Dr. Larntz' work?

        9      A.   Well, I think that the simulation analysis gives a

       10      framework of a policy framework.  We've looking at policy

       11      options faced by the law school that we can use to

       12      understand the reasonableness of some of the results

       13      results of Professor Larntz' work.

       14      Q.   And in your opinion does Dr. Larntz' work provide an

       15      accurate or realistic picture of the role that race plays

       16      in law school admissions?

       17      A.   And of course the answer is, no.  As I stated at the

       18      outset, Professor Larntz attempted to construct a

       19      statistical model that could tell us the extent to which

       20      race played a role.  And I don't believe that we have

       21      information that can enable us to do that.

       22      Q.   And on its own terms, do you believe that Dr. Larntz'

       23      approach was appropriately executed?

       24      A.   Well, I believe that certain key methodological

       25      choices that Dr. Larntz made led to a, an exaggerated





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        1      impression about the association between minority status

        2      and admissions.

        3      Q.   And what were those?

        4      A.   Well, they're essentially --

        5      Q.   Just briefly and then we'll get into them a little

        6      more?

        7      A.   I'll give you three types, and I know we'll talk about

        8      some of the details.

        9               The first was that his analysis selectively

       10      attended to the data; that is, it discarded data based on

       11      the outcomes of the admission process.  And it discarded

       12      data that was, in fact, discrepant with the hypothesis that

       13      there is a strong correlation between race and admissions.

       14      That was the first.

       15               The second was that his analysis was based on

       16      strong assumptions, as our policy via regression, as I

       17      explained the same kinds of assumptions that we had.

       18               And that in one important case, I did an analysis

       19      that showed that a key assumption that he made and was an

       20      important one, was not true.  And in the second case, the

       21      other, another key assumption is like what I described

       22      before.  It's probably not true, almost certainly not true,

       23      the problem being we don't know the impact.  We can't gauge

       24      the impact of the falsehood of the assumption on the

       25      validity of the results.





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        1               And thirdly, the results of his analysis were

        2      extremely unstable.  They were very different from year to

        3      year, and the size of the differences from year to year

        4      really can't be explained by the process, or by the data at

        5      hand.  And so my conclusion is that there are aspects of

        6      the methodological approach that create the instability,

        7      not the admissions policy or the data.

        8      Q.   Before we talk about those problems that you found

        9      with Dr. Larntz' work in more detail, I'm wondering if you

       10      could give us a sense of, of how his overall approach, his

       11      conceptual framework differed from your's?

       12      A.   Right.  Well, his, his conceptual framework was,

       13      again, the idea of constructing a model that would tell us

       14      about the role of admissions, the extent to which they're

       15      taken into account by the admissions people, which I view

       16      as a very challenging thing.  You have to have tremendous

       17      amount of information to assess peoples' thinking and the

       18      extent to which they're weighing factors.  My question is

       19      actually a more limited one but one that I think we can

       20      approach with minimal assumptions through statistical

       21      inference and still get some very useful information.  It

       22      doesn't tell you, it doesn't give us the answer to that

       23      question, but it gives us extremely important information

       24      about the impact of taking race into account.

       25      Q.   Now, obviously you were here the other day when Dr.





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        1      Larntz testified, and there was a lot of discussion about

        2      odds ratios, yes.

        3      A.   Right.

        4      Q.   Obviously we all remember that.

        5      A.   Right.  I'm just glad I don't have to explain what

        6      they are.

        7      Q.   Is, well, I'm going to ask you to give some examples

        8      in a second.

        9      A.   Okay.  I couldn't get out of that one.

       10      Q.   No such luck.  I guess my first question, though,

       11      about this is, is computing odds ratios an accepted method

       12      of statistical analysis?

       13      A.   It is.  It's widely accepted.  It's widely used.

       14      Q.   And in what context is it appropriately used?

       15      A.   Well, the thing about odds ratios is that typically an

       16      odds ratio by itself doesn't tell us what we need to know.

       17      It's a piece of information.  But to interpret the meaning

       18      of the odds ratios, we, odds ratios, we really need to know

       19      something about the probabilities that went into computing

       20      the odds ratio because depending on what the probability,

       21      you know, an odds ratio controls a function of the

       22      probabilities for each group.  And depending on what those

       23      two probabilities are, the odds ratio could be very, very

       24      different things.  So my, my general rule of thumb is to

       25      always keep in mind the probabilities as well as the odds





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        1      ratios, for that reason.

        2      Q.   And you have used odds ratios in your work?

        3      A.   Oh, yes.

        4      Q.   Is that right?

        5      A.   Yes, I have.

        6      Q.   Okay.  In your opinion, do odds ratios provide an

        7      accurate or appropriate way to look at the role that ratios

        8      make in the law school admissions process?

        9      A.   There's some problems with using, there's some huge

       10      problems with using them alone, again, without, without

       11      accompanying them with other information.  Generally what

       12      happens to the odds ratio is that it becomes very unstable

       13      when one group or the other has a probability or, of either

       14      nearly one or nearly zero.

       15      Q.   Do you have some illustrations of that effect?

       16      A.   Well, I thought we might actually just revisit some of

       17      the odds ratios we looked at.  Was that, the day before

       18      yesterday I think it was, right.  The day before yesterday.

       19      And maybe we could even just quickly review those.  I don't

       20      know if we still have those charts or if we need to

       21      scribble down those things again.

       22      Q.   I think we do.  I think the page that we have before

       23      is gone.

       24      A.   May I.

       25               MR. DELERY:  I'll move the easel out a little bit





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        1      here.

        2      A.   Thank you.  I think what we had the other day was we

        3      had a group, some group.  Let's call this group one, that

        4      had a probability of admission of .99.  And then we had

        5      group two that had a probability of admission of .90, and

        6      the odds ratio turned out to be eleven.

        7               So, basically, this was saying group one had

        8      eleven times the odds of admission of group two.  And then

        9      we had another example where group one had a probability of

       10      admission of .999.  Group two still had a probability of

       11      .90.  And what happened to the odds ratio was that it

       12      became 111.  And then just, you can see the pattern here.

       13      If group one had a probability of admission of .9999 and

       14      group two system had a probability of admission of .91, the

       15      odds ratio went to 1,111.  Now, those are, those are facts.

       16      There's no problem with that.

       17               The only problem is, if all we saw, if I hid these

       18      probabilities, and all I saw were the odds ratios, I might

       19      get the impression that those are three extremely different

       20      results.  Eleven times the odds, 111 times the odds, 1,111

       21      times the odds.  These look so different.  But when I look

       22      at the probabilities of admission from a practical point of

       23      view, if I'm a candidate, and my probability is .99 versus

       24      .90, that's about ten percentage points.

       25               And I'm nearly certain to be admitted.  If I go up





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        1      to .999 versus .91 it's still about ten percentage points.

        2      I'm still nearly certain, but yet my odds ratio went up by

        3      ten, a factor of ten.  And then another factor of ten as we

        4      go to .999.  So all I'm saying is the odds ratio by itself

        5      can create a misleading impression if you don't also see

        6      these numbers.

        7      Q.   Is there something about the mathematical

        8      characteristic of the odds ratio that causes this, I mean,

        9      is that the reason?

       10      A.   The basic problem is that an odds ratio requires

       11      division.  And if one of the probabilities is either near

       12      one or near zero, we encounter something called division by

       13      zero which is prohibited, mathematically.  We can't have a

       14      fraction that has zero and nine.

       15      Q.   And so what's the results of that?

       16      A.   And so as the denominator goes towards zero, the

       17      fraction increases without bound to incredibly large

       18      numbers.  If we keep adding nines, this thing keeps going

       19      up and up and up.

       20      Q.   And does the same pattern happen when you're talking

       21      about small probabilities at the other end?

       22      A.   Exactly the same pattern happens, so, for example, if,

       23      I just switch it around.  If group one had a probability of

       24      admission of .10, and group two had a probability of .10,

       25      the odds ratio would be eleven.





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        1               If I went from, again, group one, .0 to group two

        2      .001, 111, .10 to .0001, 1,000, 111.  So again, group one,

        3      ten percent chance of getting in, group two, very small

        4      .10, very small, very small.  Ten percentage point

        5      difference leads to very, very different odds ratios.

        6      Q.   Do you have an example of a situation in which two

        7      people might have similar probabilities of something

        8      happening, but very different odds or a real world example?

        9      A.   Yes, actually, I did think of one.  It actually

       10      involved the lottery.  Suppose that, you know -- I get

       11      excited about the lottery and I buy a lottery ticket.  And

       12      you say, well I'm going to outdo you, I'm going to buy

       13      fifty lottery tickets.

       14               So what would happen is your odds would be roughly

       15      fifty times, mine.  But yet both of us would have near zero

       16      probability of winning the lottery.  I mean, it's wise,

       17      you'd say, I'm going to be really smart and go buy

       18      thousands of tickets to the lottery.  Everybody would be

       19      buying.  Of course they are, but.

       20               THE COURT:  Actually this week it's fifty-nine

       21      million.  There's a sign on my way home.  Every time I keep

       22      looking.

       23      A.   They're doing it.  They're rapidly increasing their

       24      odds, but what they don't know is their probability is

       25      staying right almost exactly at zero.





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        1      Q.   All right.  Okay.  If you could take the stand.

        2      Professor Raudenbush, in your view does this pattern that

        3      you've just described to us examples have any relevance to

        4      the data we have in this case?

        5      A.   They do.  There are combinations of grade point

        6      average and LSAT where the probability of admission of

        7      anyone who applies to the law school is extremely high.  I

        8      mean, people who have near A averages who are up in the

        9      upper 160's or 170's on their LSAT have an extremely high

       10      probability of admission.

       11               Of course in the data what we see is that the

       12      proportions are something like 1.0 for minority applicants,

       13      and something in the .9 range, or in a very high range for

       14      majority applicants.  And so in that sense, the examples

       15      that I was presenting were not unusual.  And something

       16      similar can also, and does appear at the lower end of

       17      people who have fewer qualifications where the differences

       18      may be small in probability terms, but the odds ratios may

       19      be big.

       20      Q.   With that background in mind, I'd like to ask some

       21      questions about the cell-by-cell analysis, that Dr. Larntz

       22      conducted.

       23      A.   Okay.

       24      Q.   Just, let's start with a general question.  What's

       25      your opinion about the of the appropriateness or the





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        1      validity of that approach?

        2      A.   Well the problem, well, one of the problems with that

        3      approach is that it requires that an odds ratio be

        4      computable for every single one of the hundred plus cells

        5      that appear in any year in Professor Larntz' reports.  And

        6      since the odds ratio is not computable in a number of

        7      cases, what this leads to is a discarding of data in those

        8      cases where there can't, where no odds ratios is

        9      computable.  And this ends up discarding considerable

       10      evidence that are relevant to how the university is

       11      handling the admissions decisions.

       12      Q.   And I believe we had some examples?

       13      A.   Yes.

       14      Q.   Of those situations?

       15      A.   We do.

       16      Q.   I think this is Exhibit 192.  If you'd put that up.

       17      Maybe, David, if you could put the easel back where it was.

       18      Can you read it from there?

       19      A.   Yeah, I can see the numbers from there.

       20      Q.   Okay.  There's very small, actually.

       21      A.   I'll --

       22      Q.   I think I need to come closer.

       23      A.   Okay.  All right.

       24               MR. DELERY:  If that's all right, Your Honor.

       25               THE COURT:  Of course.





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        1      Q.   So I guess let me first just ask, I take it this page

        2      here on the left is a little image of a page from one of

        3      Dr. Larntz' reports?

        4      A.   Yes.  That's page six of six from the March 20, 2000

        5      report.  And we selected that page.  It was just convenient

        6      because it had three examples that I wanted to say

        7      something about, because it has a bearing on what we're

        8      discussing, and they all came from the same page.

        9               And the first example, actually, the first two

       10      examples involve cases in which the admissions process

       11      treated people the same, in terms, they had the same

       12      admission decision regardless of minority status.  So in

       13      the first cases, and we're looking here at, at students who

       14      have relatively low grade point average.  It's down 2.25 to

       15      2.49, but relatively high LSAT's, 161 to 163.  There was

       16      one minority applicant in that, in, who had those

       17      characteristics.  And that person was rejected.  There were

       18      two majority applicants and they were rejected because both

       19      people were rejected.  Of course, what we know is they both

       20      had the same admissions decision.  There was no different

       21      decision for the minority and majority applicants.  But

       22      because none of them were admitted, we can't compute the

       23      odds ratio.  So if you've developed a statistical approach

       24      that requires cell-by-cell computation of odds ratios, you

       25      can't compute the odds ratio.





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        1               Basically what happens is you have to discard

        2      their cell.  But when you discard this cell, you're

        3      discarding information that's relevant to the decision of,

        4      it's relevant to the decision made by the admissions

        5      committee.  That is, essentially, you're waiting to see

        6      what the admissions committee decides.

        7               And if they make it a certain decision, which in

        8      this case is treating everybody the same by rejecting them,

        9      discard the data.  If the admissions decision had been

       10      different, if, if someone had been admitted, then the cell,

       11      the data would have gone into the analysis.  So that means

       12      the data goes into the analysis conditional on the decision

       13      of the university.

       14               If the university makes a decision to treat

       15      everybody the same, we throw the data out.  If the

       16      university decides to treat them differently, the data go

       17      in and we -- we don't like that situation in statistical

       18      analysis.  This, we don't wait to find the outcomes of the

       19      data and then decide whether to use the data.  We decide

       20      what data we're going to use prior to, to, to investigating

       21      the outcomes, or without any attention paid to what the

       22      outcomes are that we're trying to discuss.

       23      Q.   Okay.  And what about the second cell here?

       24      A.   Well, the second cell is another example of the same

       25      thing but it's at the upper end of the distribution.





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        1               In this case we have people whose grades are 3.75

        2      and above.  This is very high.  These people are getting

        3      basically A's, maybe a few A minuses.  Their LSATs are also

        4      very high.  They're 167 to 169, which I think is very high

        5      up in the percentiles of that distribution so these are, in

        6      terms of just grades and test scores this is a very able

        7      group of applicants.

        8               In 1999 there were two minority applicants.  They

        9      were both admitted.  There were 106 majority applicants.

       10      They were all admitted.  So you look at those data, and I

       11      think reasonable people would say, did race play a factor

       12      in the decision for those people.  And the answer seems to

       13      be no.  They had very high grades and very high test

       14      scores.  They all had the same decisions.  The decisions

       15      weren't different.  However, can't compute the odds ratio,

       16      throw out the data.

       17      Q.   Well, let me ask you about that, because Dr. Larntz

       18      said that these cells don't have comparative information in

       19      them, as I understand it, and so a principle or fair

       20      comparison should mean that you would discard them.  You

       21      would look at only cells where you have different results.

       22      Do you disagree with that?

       23      A.   I strongly disagree with that, and I'll try to explain

       24      why.  We only know after the fact that these people had the

       25      same treatment.  To then say, well, because they had the





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        1      same treatment we're going to throw them out, no, you can't

        2      do that.  The admissions decision could have gone the other

        3      way.  And that's what we have to think about in statistics.

        4               THE COURT:  Everything in every cell is after the

        5      fact?

        6      A.   Right.  But we don't use or not use data, depending on

        7      what we see in terms of who was admitted.  The principle,

        8      the actual principle, statistical principle is you use all

        9      of the information in the data.

       10               THE COURT:  But all of the information in the data

       11      that he says, at least, that he wanted to use, and that was

       12      necessary was after the fact.  He didn't combine after the

       13      fact with before the fact.

       14      A.   He decided which, which parts of the data to use after

       15      he saw, based on the results of the admissions decision.

       16      We don't, we don't decide, well, I'm not going the analyze

       17      these because these people were admitted or rejected.  We

       18      don't.  That's not the way we do it.  I mean, these are

       19      results that are discriminate with his hypothesis.

       20               THE COURT:  You were here for his testimony?

       21      A.   Yeah.

       22               THE COURT:  He said as to these cells there was

       23      nothing to analyze?

       24      A.   And that's not true.  That's simply not true.  I did

       25      the analysis myself.  I used every scrap of data that there





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        1      was.  We can analyze all of it.  We must analyze all of the

        2      data.

        3               THE COURT:  So you disagree with him?

        4      A.   I strongly disagree.  And I say that the reason he

        5      discarded those data was because he was committed to a

        6      cell-by-cell computation of odds ratios, and they can't be

        7      computed.

        8      Q.   So in other words, a different methodology would have

        9      allowed all of the data to be include, is that right?

       10      A.   That is absolutely right.

       11               THE COURT:  Did you do that?

       12      A.   I did.

       13               THE COURT:  I expect we'll know your results?

       14      A.   Yes.  Actually all of the analyses I've reported so

       15      far never, we never selected cases for the analysis as a

       16      function of whether people were admitted or not.  We always

       17      analyzed whatever data came to us.

       18      Q.   Now, as a statistician, if you had selected a

       19      methodology and then you saw that it was leading to the

       20      exclusion of a number of cases from the data, would that

       21      cause you to think about your methodology in any way?

       22      A.   It would very much cause me concern.  And let me,

       23      maybe I can explain a little bit in a very simple

       24      straight-forward way how this could be so consequential.

       25               Suppose another statistician came along and had





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        1      never seen Larntz, the, the report of Professor Larntz, but

        2      had the database and decided to create cells.  But suppose

        3      that this statistician decided to create bigger cells.

        4               Let's say, let's take everybody from, instead of

        5      just LSAT from 161 to 163, I'm going to create larger

        6      cells.  I'm going to take everybody from 161 to 165.  So

        7      you'd have bigger sample sizes.  What would inevitably

        8      happen is that you'd have a larger fraction of the cells

        9      where you could compute the odds ratios.

       10               And, in fact, you could define the cells big

       11      enough so that you could compute an odds ratio for every

       12      cell.  So what would happen, statistician No. 2 would come

       13      along and define the cells somewhat differently, using the

       14      same methodology, would throw away different cases, fewer

       15      cases and get different results, quite different results,

       16      in fact.

       17               Statistician No. 3 comes along and says, I don't

       18      like really, these cells, they're too big.  I like really

       19      small cells.  I'm going to define cells that only go LSAT

       20      from 161 to 162 because I want to equate people really

       21      closely to every LSAT point.  So I'm going to have, and

       22      that would create basically roughly twice as many cells.

       23               What would happen to statistician No. 3,

       24      statistician No. 3 would see a lot more small cells where

       25      nobody was admitted or everybody was admitted, and would





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        1      have many fewer computable odds ratios than Professor

        2      Larntz and would throw out a great deal more of the

        3      information.

        4               So now what we have is using this methodology of

        5      constructing cells and then for each cell computing odds

        6      ratios, we have three statisticians using the same

        7      methodology but they define the cells differently.  They

        8      never talked about it.  They just define them differently.

        9      And they're analyzing different data sets with different

       10      subsets of cases that have different outcomes and they're

       11      coming up with different results.  That is not what we,

       12      what we aim for in statistical practice.

       13      Q.   And in your opinion, does that fact, the fact that

       14      different size cells would, would lead to different

       15      results, does that tell you anything about the

       16      appropriateness of the cell by cell approach, in general?

       17      A.   Exactly.  Because it's the cell-by-cell computation of

       18      the odds ratios that, that, which involves division, which

       19      we can't divide by zero, or, or to paraphrase, Professor

       20      Larntz, we can't divide infinity by infinity or zero by

       21      zero.  And so if you're committed to that strategy, you

       22      have to discard data from cells that, where you can't

       23      compute the odds ratio, but it turns out that the cells

       24      you're discarding are the ones where people are being

       25      treated the same; in many cases the same, as a function of





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        1      ethnicity.

        2               Either they're being rejected or they're all being

        3      accepted.  The key thing we have to keep in mind as a

        4      statistician is it could have gone the other way.  In a

        5      different world with a different policy, some of these

        6      people would have been rejected, and we have to, our models

        7      have to anticipate that the world might be telling us a

        8      different story.

        9      Q.   So would you choose a cell-by-cell approach?

       10      A.   No, I would not.

       11      Q.   Why don't we look at the third cell that you have here

       12      on this chart.  Tell us what you find significant about

       13      that one?

       14      A.   Well, this cell, actually exemplifies something we

       15      discussed earlier and how an odds ratio by itself can be

       16      misleading.

       17               What we have here are candidates who have grades

       18      in the sort of B plus range, but very high LSATs.  And

       19      there was one minority applicant, there was one minority

       20      applicant and one minority admit.  So one person applied

       21      and was admitted.  There were 75 majority applicants and 73

       22      admits.  So in terms of proportions, 100 percent of the

       23      minority applicants were admitted, and 907 percent of the

       24      majority applicants were admitted.

       25               When we compute the odds ratio, we come up with an





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        1      infinite odds.  We can't really compute that number.  We

        2      can't really divide by zero.  But if labeled infinite, and

        3      it conveys the impression that minority applicants were

        4      much more likely to be admitted, and yet if we look at the

        5      proportions, it's 1.0 versus .97.  Those look very similar

        6      and I think most people would say on balance looking at

        7      that cell, applicants were treated similarly.

        8      Q.   Would you call an odds ratio for a cell that turns out

        9      to be infinity a calculable odds ratio?

       10      A.   No, I would not because it involves division by zero

       11      which we can't do.  The computers won't let us do it.

       12      Q.   Ms. Massie, the other day, or yesterday, I think,

       13      asked Dr. Larntz whether infinity is an irrational number

       14      or an imaginary number.  What is it?

       15      A.   Well, actually, it's not a number.  In fact, if you

       16      try to, if, in many computer programs, if you try to divide

       17      by zero, it will print out, n-a-n, not a number.

       18      Q.   All right.  Given the, well, what do you take away

       19      from the fact that the cell-by-cell approach of Dr. Larntz

       20      generated odds ratios of infinity in this way?

       21      A.   I take away that, that analyzing many, many, many

       22      small subsets of data, using this method is not the right

       23      way to go, and it will lead to distortions.  It will lead,

       24      in fact, to an exaggerated estimate of the association

       25      between minority status and ethnicity, both in terms of





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        1      which data are discarded and which data are analyzed, and

        2      in terms of these unstable odds ratios which veer to become

        3      increasingly large, depending on the denominator and in the

        4      division.

        5      Q.   Okay.  Is it fair to say that the pool sizes, in other

        6      words, the number of applicants in a number of these cells

        7      are quite small?

        8      A.   Yes.  That's correct.

        9      Q.   Do you find that fact significant in any way in

       10      evaluating the appropriateness of this approach?

       11      A.   It's because they're small that so much of the data

       12      are discarded using this approach.  And that's really the

       13      key.  That's a key issue.  And it's also because they're

       14      small that the odds ratios become so unstable.

       15      Q.   Now, it is the case, I mean we have put up here

       16      examples of cells in which the minority and majority

       17      applicants were treated quite similarly?

       18      A.   Right.

       19      Q.   That's what we've selected.  It's also the case, isn't

       20      it, that there are cells where the probabilities of

       21      admission are quite different, or the proportions of

       22      admission are quite different?

       23      A.   That's true.

       24      Q.   Where large proportions of minority students are

       25      admitted and very small proportion of the majority students





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        1      are admitted?

        2      A.   That's correct.

        3      Q.   Have you looked at those cells in any way?

        4      A.   We have.  We've looked at those cells and I think we

        5      actually have a display of one of them that will reveal

        6      some of the features of those cells.

        7      Q.   Okay.  This is Exhibit 193, I believe.  So am I right,

        8      Professor Raudenbush, that this sample cell is taken from a

        9      page of Dr. Larntz' report, March 20 of 2000, the same

       10      report as the page we just saw?

       11      A.   Yes, and it's page five of six.

       12      Q.   Okay.  Well, why don't you tell us what the cell

       13      shows, and then what you take away from it?

       14      A.   Okay.  The cell is, includes people whose grades were

       15      3.50 to 3.74, which is in the B plus to A minus range.

       16      Their LSAT scores are 156 to 158, which is, which is

       17      comparatively high.  It's in the seventy-first to

       18      seventy-eighth percentile so they're pretty high up in the

       19      percentiles of the LSAT.  They were non-residents.  There

       20      were seven minority applicants, and of those six were

       21      admitted, six out of seven.

       22               There were 73 majority applicants, and of those

       23      one was admitted.  So one out of 73, obviously, six out of

       24      seven looks quite different from one out of 73, and

       25      Professor Larntz' computed an odds ratio of 432 and a





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        1      probability value of point, less .0001.

        2      Q.   And what does that probability number stand for?

        3      A.   That is a test of the, what we call the null

        4      hypothesis.  The null hypothesis is that in this cell

        5      there's no association between race and admissions.  And so

        6      if the null hypothesis were true, there's no association,

        7      how likely is it that we would see results like this, and

        8      the answer is not very likely.  We, therefore, reject the

        9      null hypothesis and infer there is a statistical

       10      association between race and admissions in this cell.

       11      Q.   Okay.  And that's what, that's also what the odds

       12      ratio indicates, is that right?

       13      A.   The odds ratio is, it's hard to know what the odds

       14      ratio really indicates by itself, 432.  I mean we've seen

       15      some cases where a number like that might not mean much at

       16      all, but in some cases it might mean a lot.

       17               In this case we can see that six out of seven is

       18      different from one out of 73 and that's, in proportion

       19      terms, those are pretty big differences.  Of course we

       20      don't know how big that difference is, we can't put a good

       21      confidence interval because the sample size of minority

       22      applicants is small.

       23               What I mean is it's hard for us to say just how

       24      big the effect is.  We know there's affect.  But to really

       25      bound it is difficult because of the small size of the





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        1      sample of the minority applicants.

        2      Q.   Have you looked at another way to think about the

        3      effect of race in this cell?

        4      A.   Yes.  What we've done with this cell is just to do a

        5      little mini-simulation, just to do the causal analysis that

        6      we did earlier, but only with this cell, and it's really

        7      pretty straight forward.  In this cell, there were eighty

        8      applicants overall and seven were admitted.  So the common

        9      probability of admission observed here is the seven divided

       10      by eighty, which is .0875.  So here's a very simple way of

       11      simulating a race-blind policy.

       12               Suppose that common probability of admission were

       13      applied to the majority applicants and the minority

       14      applicants.  How many admits would we then expect under the

       15      race-blind policy.  So we multiple .0875 by 73, and we get

       16      six.  We round off, we can't admit half a person.  So we

       17      have to round off six majority admits and then the same for

       18      minorities.  We take the common probability of admission.

       19      .0875, multiple by seven, and we get one minority admit.

       20               So here's kind of a real simple way in which the

       21      simulation works.  What we saw in reality seven minority

       22      admits, I'm sorry, seven minority applicants, six admits,

       23      and one admit for majority.  Under the race-blind policy it

       24      would switch, six majority admits and only one minority

       25      admit.





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        1               We can then compute the change in probabilities

        2      for the majority students under the race-blind policy.

        3      Under the current policy, one out of 73 was admitted.

        4      That's 1.4 percent.  Race-blind policy, six out of 73.

        5      That's 8.2 percent.

        6               So what that gauges is the causal, is -- it's an

        7      estimate with uncertainty.  But it's an estimate of the

        8      causal impact of changing to a race-blind policy for the

        9      majority students.  Their probability of admission goes up

       10      from 1.4 percent to 8.2 percent, which is definitely an

       11      increase.  It's an increase of about 7 percentage points.

       12      Under either policy their probability of admission is less

       13      than one in ten.  And that's a way of quantifying what's

       14      going on in this cell, and I guess it just shows, this is

       15      kind of how we're quantifying what's happening in the cell,

       16      as opposed to simply using a number of an odds ratio 432.

       17      Q.   Do you think that 432 odds ratio quantifies how much

       18      race has been considered in the admission process for the

       19      applicants in this cell?

       20      A.   No, I don't have.

       21      Q.   And why is that?

       22      A.   Well, the idea, to make an inference about the role of

       23      race, the extent to which race was taken into account in

       24      admissions, we would have to infer or assume that everyone

       25      in this cell is identical, in terms of their other





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        1      credentials.  If that quantifies the impact, we're assuming

        2      that these people are the same.

        3               Actually, let me back up.  We're assuming that

        4      other factors are unrelated to grade point average and test

        5      score.  But the basic idea is we're assuming that these

        6      people are very similar in terms of their credentials.

        7      Q.   Well, Dr. Larntz, as I understood it, said that his

        8      general approach was to try to identify similar students,

        9      and then look at the relative?

       10      A.   Right.

       11      Q.   Relative odds of their acceptance.

       12               THE COURT:  Using similarly as to those who

       13      factors?

       14               MR. DELERY:  Right.

       15               THE COURT:  Grade point and the exam.

       16               MR. DELERY:  Right.

       17      Q.   Well let me ask you --

       18      A.   Well actually there were a couple analyses; one

       19      controlled for just grade point and LSAT, another

       20      controlled for residents, gender, fee waiver, several other

       21      factors.

       22               THE COURT:  Yeah.  That was a separate analysis?

       23      A.   That was another analysis, yeah.

       24               THE COURT:  But his main premise that he used.

       25      A.   Right.





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        1               THE COURT:  Only the two that, I think we're on

        2      the same wave length?

        3      A.   Yes, that's correct.

        4               THE COURT:  Only used those two and he explained

        5      the reasons?

        6      A.   And those are the big ones in terms of predictive

        7      power, right.

        8      Q.   Let me ask you this, if we had data for all of the

        9      factors that are considered by the admissions process, and

       10      we know that we don't, as we discussed earlier, but

       11      assuming, hypothetically, that we had statistical data on

       12      all of those factors, so that you could identify students

       13      who were exactly the same.

       14      A.   Right.

       15      Q.   On all of the factors that the admissions office

       16      considers, except that they differed by whether they were a

       17      minority or not?

       18      A.   Yes.

       19      Q.   What would happen then to the odds ratio?

       20      A.   In that case, it would have to be infinite.

       21      Q.   And why is that?

       22      A.   It would have to be infinite for this reason.  Let's

       23      just say there are ten factors that can, that can account

       24      for admissions.  And we have people who are identical on

       25      all nine, nine of those ten, but they're different by the





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        1      last factor.  Then that last factor must determine the, any

        2      outcomes that weren't already determined by the previous

        3      nine.  It just, logically, has to be true.

        4               Any admissions decisions that were not dictated by

        5      the nine would have to be then made by that last factor,

        6      and so because it's the only thing that can explain what's

        7      left, the odds ratio would have to go to infinity.

        8      Q.   So in my hypothetical example, would race have to be

        9      taken into account a lot to yield the infinity odds ratio?

       10      A.   And the answer is no.  It would not have to be taken

       11      into account a lot.  If it were taken into account a little

       12      or a lot, if it's the last, the only last thing that could

       13      be effecting this decision, you would still have an

       14      infinite odds ratio.

       15      Q.   Do you have an example that could illustrate that in

       16      some way?

       17      A.   Yeah.  I tried to think of something that would make

       18      this point sort of clear.  If I have a scale with two sides

       19      on it and it's in a balance and I put something on that, on

       20      one side of that scale and I see it go, one side go down, I

       21      can't infer how heavy the thing was that I put on that

       22      scale.

       23               I mean, I could have had, there could have been

       24      one pound on this side and one pound on this side and I

       25      added a pound to this side and it went down.  I could have





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        1      had a thousand pounds on this side and a thousand pounds on

        2      this side.  I could have put an ounce on this side.  It

        3      would have gone down, so knowing that the scale went down

        4      decisively, cannot tell us how big the weight was that made

        5      it go down.

        6               THE COURT:  Can you tell us how big it wasn't,

        7      though?  You can tell us it wasn't a feather or two

        8      feathers or six feathers?

        9      A.   Well, theoretically, any weight, if there was an exact

       10      tie, any weight would have made the scale, even an ounce.

       11               THE COURT:  I'm talking about degrees?

       12      A.   But what I'm saying is if these are in actual, in

       13      absolute balance, these two sides, and any weight

       14      whatsoever, no matter how small is put on this side, it has

       15      to go down.  So the only thing we can infer is that there's

       16      more weight on this, that something was put on the side.

       17      We know that something happened, that this last thing was

       18      taken into account, but we can't tell how much we put.

       19               THE COURT:  That's right, but what I'm saying is

       20      your analogy if they're both equal, this one goes down, you

       21      put something on this one and it goes down just a little

       22      bit, you know, you just put a little bit on if it goes down

       23      a little bit more go.

       24      A.   Well, if they're really imbalanced, it will go down,

       25      it will go all the way down.





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        1      Q.   Can I say, to bring us back to what we're talking

        2      about?

        3      A.   Yes, a scale.  A balance beam is maybe a better

        4      analogy as to what I'm saying.

        5               THE COURT:  I don't know.  It's funny, I've seen

        6      them a hundred times in court.  I've never used one?

        7      A.   Let's say like a teeter-totter.  I don't do those any

        8      more, but, you know, it's kind of sitting there and it

        9      might just be sitting there and, basically, if someone sits

       10      on one end it goes down to the ground.

       11               THE COURT:  I got you.

       12      A.   Now, that could be a little child or it could be, you

       13      know, a huge football player.  It would still go down to

       14      the ground.  The fact that it's on the ground doesn't tell

       15      us the size of the person who's sitting on that

       16      teeter-totter.

       17      Q.   In the admissions decision we're talking about a yes,

       18      no decision?

       19      A.   Yes.

       20      Q.   Is that right?

       21      A.   Right.

       22      Q.   Right.  Not one of degree?

       23      A.   Right.

       24      Q.   If you come back to the cell here that we were looking

       25      at, I think Dr. Larntz would say that he could infer





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        1      something about the extent to which race was taken into

        2      account by how big that odds ratio number is, that because

        3      it's so big, that must mean that race was a big factor in

        4      the decisions?

        5      A.   Right.

        6      Q.   Do you disagree with that?

        7      A.   I disagree with that for the reasons we've just

        8      described.  Knowing that the proportion went up for one

        9      group doesn't tell, has no information about the extent to

       10      which the people making the admissions decisions were

       11      relying on that factor.  It, the analysis suggests that

       12      there is, that it is being taken into account, and the idea

       13      that it's not, that it's absolutely irrelevant is the null

       14      hypothesis.  We rejected that, but the extent to which it's

       15      being taken into account you can't determine from this

       16      analysis.

       17      Q.   I'd like to turn now from the cell-by-cell approach

       18      that we've been talking about to the composite odds ratios

       19      that Dr. Larntz generated?

       20      A.   Okay.

       21      Q.   Do you have an opinion concerning the meaningfulness

       22      of those composite or global odds ratios?

       23      A.   I do.

       24      Q.   And what is that?

       25      A.   And that is that I, I do not view them as a valid





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        1      assessment of the association between race and admissions,

        2      given test scores and GPA, which is a narrow way of

        3      defining what the analysis was intending to estimate.

        4      Q.   And in your view, does the choices that Dr. Larntz

        5      made about the cells that we discussed earlier, do those

        6      choices have any implications for your evaluation of the

        7      composite odds ratios?

        8      A.   They do.  And first let me just mention again the, the

        9      question of making a methodology decision that then

       10      influences which outcome data we throw away and which

       11      outcome data we pay attention to.

       12               In general, using logistic regression we do not

       13      need to discard any cases from this, from -- there are,

       14      there are no cases, no people whose data needs to be

       15      rejected.  And that's, I mean, in a nutshell, we can handle

       16      that.

       17               What Professor Larntz did was to construct for

       18      every cell in the matrix that had any data at all a

       19      predictor variable.  Well, I should say, what he did was

       20      construct for every cell in the matrix that had what he

       21      defines as comparative information.  He gave a very clear

       22      definition of that yesterday.  He defined for those cells a

       23      predictor variable.  That means that in his logistic

       24      regression model he had approximately 100 predictor

       25      variables, one for each cell that had the kind of data that





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        1      he found to be useful, or one that could be used in that

        2      context, one that had the features that he described which,

        3      you know, was a good description of what it was.  Having

        4      the 100 predictor variables, one for each cell, requires

        5      that you discard cells of the type we looked at that were

        6      just also discarded cell-by-cell analysis.  And, and so

        7      that was a decision to construct the many, many, many

        8      predictor variables, one for each cell that had the same

        9      consequence it did in the cell-by-cell analysis.

       10      Q.   Okay.  What about the cells that would generate on a

       11      cell-by-cell basis the infinity odds ratios that Dr. Larntz

       12      found?  What happened to those cells in his analysis?

       13      A.   Yeah.  Well, those cells, and he pointed this out,

       14      it's not as if we'd be averaging infinity with three other,

       15      with a hundred other numbers.

       16               But what we would tend to be averaging in many

       17      cases, or combining, would be numbers that are very, very

       18      high, as a function of the number of predictor variables in

       19      the model, and the number and the small size of those

       20      samples.  And when you create a composite across a hundred

       21      numbers, many of which are very high for those reasons, you

       22      get an unstable composite estimator, and that's what we see

       23      in this case.  When I say unstable, I mean it varies from

       24      year to year much more than we would expect, given the data

       25      at hand.





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        1      Q.   I'd like to come back to the instability point.

        2      A.   Right.

        3

        4

        5

        6

        7

        8

        9

       10

       11

       12

       13

       14

       15

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       17

       18

       19

       20

       21

       22

       23

       24

       25




                                                                    95




         1   BY MR. DELERY:

         2   Q.    Before we get to the instability point, I would like

         3         to talk about the assumptions issues that you

         4         mentioned a few minutes ago.

         5   A.    Right.

         6   Q.    What were the assumptions that Dr. Larntz made that

         7         you found significant, and what do they tell you

         8         about his analysis?

         9   A.    Well, there were two really central assumptions in

        10         this kind of analysis.  When what you're trying to

        11         do is characterize the difference between two

        12         groups, or an odds ratio that expresses this

        13         difference controlling for a large number of other

        14         factors.

        15                        The assumption is that the size of

        16         the difference is, or in this case the size of the

        17         odds ratio, is invariant across all of the cells of

        18         the matrix.

        19                        That is literally all of the cells

        20         have the same true odds ratio.  That's a very

        21         important assumption for this analysis.

        22                        And I actually did some analysis to

        23         check that assumption, and found that it was easily

        24         rejected.  Indeed, the size of the odds ratio varies

        25         significantly across the cells of the matrix.





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         1   Q.    And by the matrix, what do you mean?

         2   A.    The matrix meaning the GPA by LSAT grid, which is

         3         what Professor Larntz was using in the analysis.

         4                        And this is a case where the higher

         5         arc of the linear model actually is very useful,

         6         because we have many, many small subsets of data.

         7         It's almost like we have children in classrooms and

         8         we actually have applicants and cells.

         9   Q.    And that's what your book was about?

        10   A.    That's what my book was about.

        11   Q.    That's what we're talking about.

        12   A.    With how you handle data where we have many, many

        13         small subsets of data.  How do we combine the

        14         information in such a way, that we are not required

        15         to discard the information.

        16                        And what we do is we have the

        17         following conception.  That every cell has its own

        18         true odds ratio and that they have variability

        19         across the cells.  They randomly vary across the

        20         cells.

        21                        The beauty of that is we only have to

        22         estimate this one parameter, how much variability is

        23         there across the cells.  We don't have to estimate

        24         each cells odds ratio.

        25                        And when we do that analysis what we





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         1         find is that there is very substantial variability

         2         across the cells of the matrix in terms of the odds

         3         ratio.

         4                        Now, this is something that you can

         5         see by looking at the data, you can actually look at

         6         the data, you can see that in the upper ends where

         7         people have very high grades and test scores,

         8         they're being treated very similarly.

         9                        And in the more middle ranges like

        10         the cell we are now looking at still, I guess, the

        11         one that had the odds ratio here, that the odds

        12         ratios become quite large.

        13                        So, they do vary or the cells of the

        14         matrix, and that contradicts an assumption that's

        15         very important.  And means that we can't

        16         characterize the association between race and

        17         admissions with a single odds ratio.

        18   Q.    And just so we're clear, could you sort of expand a

        19         little bit on why it's significant that this

        20         assumption is wrong.  What does that mean about the

        21         usefulness of Dr. Larntz's odds ratio?

        22   A.    Well, substantively one feature of it is that if the

        23         actual difference in probabilities, or the odds

        24         ratio is bigger in some areas than others, that's a

        25         very different story then saying every person who





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         1         applies to the law school is going to be subjected

         2         to this odds ratio, that's one thing.  But it has

         3         certain technical results.

         4                        If, in fact, the odds ratios vary

         5         across the cells and you think they don't, what

         6         happens is the standard error of your estimates

         7         becomes too small.  And any confidence intervals and

         8         test of significance become questionable.

         9   Q.    In practical terms what does that mean about how you

        10         interpret the odds ratio over the cells?

        11   A.    In practical terms what that means is that we can't

        12         bound the size of the quantity we're trying to

        13         estimate.  We can't put upper and lower bounds on

        14         the size of the relationship that we're trying to

        15         estimate.

        16   Q.    So it could be larger or it could be smaller than

        17         the results that Dr. Larntz report?

        18   A.    It could be larger or smaller.  Generally when we

        19         report a result, a number, like if I say the odds

        20         ratio is 432, I typically would say, well, but what

        21         are the upper and lower bounds of the possible odds

        22         ratios that we might have gotten, because we don't

        23         believe it's actual exactly 432.

        24                        To do that we need a standard error

        25         that's reliable, and we can't get a standard error





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         1         that's reliable if that assumption fails.

         2   Q.    And as a statistician if you can't get a standard

         3         error to put a bounds around the number like 432,

         4         what does that tell you about how much weight you

         5         can put on a number like that?

         6   A.    Well, it tells that, basically it tells you that the

         7         odds ratio is greater than one, it's significantly

         8         greater than one.  But it doesn't quantify the

         9         extent to which it's greater than one.

        10   Q.    So, in other words, is it fair to say you can reject

        11         and nullify hypothesis, but can't quantify the

        12         extent beyond that?

        13   A.    That's right.

        14   Q.    Now, we talked earlier when we talked about your

        15         models and also about Dr. Larntz's, that you both

        16         had to assume that factors that you couldn't put in

        17         your models were unrelated to the factors that were

        18         in your models?

        19   A.    Correct.

        20   Q.    In your review of Dr. Larntz's work, does that

        21         assumption mean anything about the significance of

        22         his results?

        23   A.    Well, anytime we estimate a logistic regression

        24         equation, we are almost always required to make this

        25         assumption, because it's almost always true that





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         1         there are a lot of things we don't know that are

         2         important.

         3                        And in that regard as I mentioned, my

         4         logistic regressions are vulnerable to the

         5         criticism, we've discussed that.

         6                        The problem here was that we had no

         7         way of checking to see the extent to which the

         8         failure of that assumption might have affected the

         9         results.  We can't put upper or lower bounds.

        10                        We know that the assumption is false,

        11         at least to some degree.  It may be trivial, it may

        12         be a large degree, but we can't assess the extent to

        13         which the falsehood of the assumption might have

        14         affected the results.

        15   Q.    Why can't you or Dr. Larntz put a bound on his

        16         numbers in the same way that you did on yours?

        17   A.    Well, the method that I'm using--well, you could

        18         actually create a bound, but it would be so wide it

        19         would go from zero to infinity.  I mean it would be

        20         extremely wide.

        21                        There's just no way in this context

        22         to have a strong sense of what the upper and lower

        23         bounds are.

        24                        What we would want minimally would be

        25         a confidence interval, the validity of which would





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         1         still be contingent upon the assumptions.  But, at

         2         least, that would be a way of bounding the quantity.

         3         But we don't have that here.

         4   Q.    You had mentioned an instability point earlier and I

         5         deferred you on that, I would like to return to it.

         6                        What is your point about the

         7         instability, I think you called it, of Dr. Larntz's

         8         odds ratio?

         9   A.    When we discussed some of the sources of it, the

        10         cell by cell analysis, the instability of the odds

        11         ratio itself, the choices as to which data are used

        12         and not used could possibly feed into it.

        13                        What I did was I simply looked across

        14         the years at the results from Professor Larntz's

        15         reports and I look at the odds ratios.  I think we

        16         have an exhibit.

        17   Q.    Okay.  Why don't we turn to that, Exhibit 194.

        18         Looking first at the left side of the chart, if we

        19         could.  Am I right that these are odds ratios that

        20         were taken from Dr. Larntz's various reports?

        21   A.    That's correct.

        22   Q.    Okay.  And there are three columns here for Model

        23         One, Model Two and Model Three, what did those mean?

        24   A.    Well, as Professor Larntz presented models, he

        25         presented results from models that controlled only





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         1         for grades and test scores.

         2                        He had a second model that in

         3         addition controlled for Michigan residents, gender,

         4         fee, fee status waiver.  And also numerical

         5         discrepancies in GPAs, it was more elaborate model.

         6                        And then the third model was one

         7         where we used the selection index as opposed to the

         8         GPA and LSAT.

         9   Q.    And that was a third model that we didn't hear about

        10         during his testimony, is that right?

        11   A.    Right, correct.

        12   Q.    So then you have listed the odds ratio from his

        13         reports under the three models?

        14   A.    That's true.

        15   Q.    What do you conclude based on the pattern of numbers

        16         here across the years?

        17   A.    Well, when I look at the numbers across the years

        18         within a model, we can just take model one.  There

        19         is really very large variability in these numbers.

        20                        For example, in 1997 the odds ratio

        21         for African Americans was 53.9, whereas in 2000 it

        22         was 443.26.

        23                        Now, if we took those numbers

        24         literally, it would imply that the relative

        25         advantage of African Americans was basically nine





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         1         times as great in 2000 as it was in 1997.

         2                        Which would imply a very big change

         3         in the policy.  It would imply that the data would

         4         look different.

         5                        And, of course, looking at these

         6         numbers and knowing that the odds ratio itself can

         7         be unstable, my first impulse was to assume, and I

         8         think this was Professor Larntz's, that these

         9         numbers were varying by chance.  They're big odds

        10         ratios.  That we saw that odds ratios can become

        11         unstable.

        12                        However, I took another step which

        13         was to look at the standard errors of the

        14         differences between any pair of odds ratios.  These

        15         standard errors are basically in the report that

        16         Professor Larntz--in his report.

        17   Q.    You can derive them from information?

        18   A.    The standard errors from each year are derivable

        19         from the report.  And we can then easily compute a

        20         standard error for the difference between any two

        21         odds ratios.

        22                        And what I found was--

        23   Q.    Let me just interrupt for a second.

        24   A.    Sure.

        25   Q.    That's a standard statistical technique that you





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         1         performed?

         2   A.    Yes.

         3   Q.    Yes.

         4   A.    Anytime we want to know how big is the difference

         5         between two numbers, we compute what we call a

         6         standard error of the difference, and how many

         7         standard errors are they apart.  Professor Larntz

         8         referred to these as standard deviations.

         9   Q.    Okay.

        10   A.    What I found was that the standard deviations in

        11         2000 were--I'm sorry, the odds ratio 443 in 2000 was

        12         eleven standard deviations bigger than the odds

        13         ratio in 1997.

        14   Q.    And, in your opinion, what's the significance of

        15         that fact?

        16   A.    Well, that kind of a difference could stem from a

        17         difference in the policy.  It would have to be a

        18         very big difference, leading to a very big

        19         difference in how the basic data looked.  Or it

        20         would have to simply be a function of the

        21         methodology.

        22                        And so if you look at the law

        23         school's policy, the same policy was in effect from

        24         1992 to the present.  There's no reason to believe

        25         that it dramatically changed, that there was





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         1         tremendously increased weight put on African

         2         American admissions.

         3                        When we look at the data, what we

         4         have on the right panel, is the percentage of people

         5         admitted, African Americans versus Caucasian, those

         6         number are stable, they're similar.  They're not

         7         that different.

         8                        In '97 it was 34 percent for African

         9         Americans, 39 percent Caucasian.  2000 it was 36

        10         versus 41, those are very similar.

        11                        And so my conclusion is, that the

        12         instability in the result stems not from changes in

        13         the policy, nor from changes in the basic data.  But

        14         must, in fact, be a result of the methodology.

        15   Q.    And based on your experience as a statistician,

        16         would that kind of instability in the results cause

        17         you to call the model that you have chosen into

        18         question?

        19   A.    It would.

        20   Q.    And why is that?

        21   A.    If the process you're studying stays stable, you

        22         have fairly large sample sizes for every year, the

        23         data look very similar.  One would expect the result

        24         of the analysis also to be stable.

        25                        If they're not, then they must not be





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         1         reflecting the data or the policy, something else

         2         must be going on.  I mean you want to know what it

         3         was.

         4   Q.    Let me now sort of bring this discussion full circle

         5         and ask you, you know, now that we've looked at your

         6         views on Dr. Larntz's work, how do your simulations

         7         and your results bear on your views of the results

         8         that Dr. Larntz reported?

         9   A.    My results using the simulations, of course, are

        10         asking a much less challenging question.  We're

        11         asking what's the causal impact of the policy on

        12         those who apply, rather than asking how much are the

        13         people who are doing the admissions weighing

        14         different factors.  So it's a more modest question.

        15                        And the results, however, I think are

        16         very informative about the potential consequences of

        17         policy changes both for those who apply and for the

        18         overall diversity of the class.

        19                        The results are very stable over

        20         years, they can be bounded with truly minimum

        21         assumptions.  I mean essentially the only assumption

        22         that we're making is that the probability of

        23         admission for majority candidates will not go down

        24         if race is abolished as a factor in the admissions.

        25                        So, with minimal assumptions, we have





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         1         stable results that I think are very informative on

         2         the question of how using race affects the people

         3         who apply.

         4                        In Professor Larntz's case, he was

         5         trying to answer a much, much more difficult

         6         question.  Which is to use these limited statistical

         7         data, to try to make inferences about how people

         8         were making decisions, when the people who were

         9         making the decisions have a great deal of

        10         information that we just don't have access to.

        11                        And so his results in addition as we

        12         see, because of methodological reasons, using

        13         certain subsets of data, not using others, creating

        14         unstable results, are somewhat problematic.  But

        15         that's not really the big point here.

        16                        The big point is that we can't really

        17         answer the question he posed with the data at hand.

        18         And I think that's the key, that's at least the

        19         story.

        20   Q.    In your view, would it be fair to say based on the

        21         data, that race is a predominate factor in the

        22         admissions process?

        23   A.    No.  The data do not suggest that race is a

        24         predominate factor in the admissions process.

        25   Q.    And, in your view, what do the data show about the





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         1         impact that considering race has on the admissions

         2         process?

         3   A.    They show that the impact on minority candidates

         4         would be quite substantial, we suspect.  And the

         5         impact on majority candidates would be very modest.

         6   Q.    And that's the impact of changing to an alternative

         7         race blind policy?

         8   A.    Correct.

         9                        MR. DELERY:  Your Honor, at this

        10         point I would move Exhibits 184 through 194, the

        11         charts we used, into evidence.

        12                        MR. PURDY:  No objection.

        13                        THE COURT:  Received.

        14                        MR. DELERY:  And no further

        15         questions.

        16                        THE COURT:  Does the Intervenors have

        17         any questions?

        18                        MS. MASSIE:  Yes, we will.  It might

        19         be a good time to break for lunch though.

        20                        THE COURT:  Okay.  We'll break for

        21         lunch and you'll still get an hour and 15 minutes.

        22         Why don't we argue those motions before lunch, it's

        23         not going to take but a couple of minutes to do that

        24         and then we'll break for lunch.

        25                        Let the record reflect that we have





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         1         Plaintiff's motion in limine to exclude certain

         2         Intervenor witnesses.

         3                        Have the Intervenors, rather than

         4         spending a lot of time arguing about those you

         5         intend to call, have you made a decision as to any

         6         of those that have been objected to at this point?

         7                        MS. MASSIE:  Just one second.  What

         8         we know for sure is that we won't be calling all the

         9         ones.  We won't be calling all the ones who have

        10         been object ed to.

        11                        For example, at most we anticipated

        12         calling one of the four law professors who are

        13         listed as fact witness.  Those being Margaret

        14         Montoya, Sumi Cho, Marjorie Schultz and Charles

        15         Lawrence.

        16                        Frankly I don't think we're going to

        17         have a chance to call anyone of those four people,

        18         but if we do call one it will be one.

        19                        In other words, there's no chance

        20         that all four of them are being called.  Beyond that

        21         I think it's extremely unlikely of the triad of John

        22         Hope Franklin, Thomas Sugrue and Eric Foner, that we

        23         would seek to call more than two of those three

        24         witnesses.  And we might, in fact, call only one of

        25         them.





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         1                        THE COURT:  Okay.  I just thought we

         2         were wasting time on that.

         3                        MR. KOLBO:  Counsel.  Your Honor,

         4         Kirk Kolbo again for the Plaintiff.  Our concern is

         5         if I can just be brief about this.

         6                        In conversations with counsel for the

         7         University, I think I've learned that they're

         8         probably going to finish with their case next Monday

         9         or so.  So we'll spend about five trial days

        10         altogether between the Plaintiff's case and the

        11         University's case.

        12                        And Ms. Massie had listed, I

        13         understand now, it's being diminished, but I think

        14         some 27 witnesses.  We're concerned about that for a

        15         number of reasons.

        16                        And I'm not here today to talk about

        17         cumulative testimony, I think that might be

        18         appropriate at some point.

        19                        But even given the fact the court has

        20         given each side 30 hours just seems to be at some

        21         point testimony, I think, in any particular subject

        22         can become cumulative.  But that again is not really

        23         what my concern today is.

        24                        For the witnesses that I have

        25         mentioned here, it seems to me that they are, as far





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         1         as I can tell, they are addressed subjects that are

         2         clearly outside the scope of the Court's order in

         3         the trial of the case.

         4                        And, in fact, I think I've been

         5         somewhat conservative in this.  I think I can

         6         actually find some of their other witnesses who

         7         appears to me, at least, can only be relevant on

         8         matters that are outside the scope of the trial

         9         here, and I tried to focus on a few that I thought

        10         made this point best.

        11                        For the most point, the witnesses

        12         here that we have mentioned--and I'm not going to go

        13         through them one by one, your Honor, unless you

        14         would like me to.

        15                        THE COURT:  No, you don't have to.  I

        16         have read everything.

        17                        MR. KOLBO:  They seem to fall into

        18         two categories.  One is witnesses who will testify,

        19         they're all academics, I think, in one fashion or

        20         another.

        21                        And I'm not trying to at this point

        22         exclude any of the Intervenors, we don't think that

        23         their testimony given the scope of the trial is any

        24         more relevant then Ms. Grutter's is at this stage,

        25         we're not objecting to their testifying in court.





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         1                        I am concerned about the academics

         2         that seem to be offered on matters that are outside

         3         the scope of the trial in two areas in particular.

         4                        One, it appears that the Intervenors

         5         plan to have experts testify very generally about

         6         historical race relations in this country, history

         7         of discrimination.

         8                        Those aren't matters in dispute, your

         9         Honor, we don't dispute Plaintiffs in this case

        10         there's a long history of discrimination against

        11         minorities in this country.

        12                        We think given the Supreme Court's

        13         precedence those kinds of important issues simply

        14         can't rise to a compelling governmental interest to

        15         justify racial preferences.

        16                        And for that reason, that kind of

        17         testimony isn't needed or relevant here.  And these

        18         experts really, even though they're talking about

        19         discrimination generally, they're not experts, as I

        20         understand it, your Honor, that are offered as

        21         experts on standardized testing or cultural bias

        22         with respect to grades and test scores.

        23                        They're much more general then that.

        24         And it seems to me we just don't need to spend time

        25         with that.





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         1                        The other general category, your

         2         Honor, and I'm actually more concerned about the

         3         second category than the first, because it seems to

         4         me this open up all kinds of possibilities, as far

         5         as where this trial might head.

         6                        Ms. Massie has identified a number of

         7         experts who would be really experts on the question

         8         of whether diversity has educational value.

         9                        And we all know that that issue has

        10         been taken under advisement by the court as a matter

        11         of law.  But a number of these witnesses, as far as

        12         I could tell, could only be relevant on that

        13         subject.

        14                        And a number of these professors, for

        15         example, a larger majority of the group we may only

        16         hear one from.  But it just seems to me that that's

        17         not the issue that's before the court.  We have not

        18         prepared ourselves to try it at that level at this

        19         point.

        20                        And the other thing that concerns me

        21         on that, your Honor is, I did see the University

        22         file and I guess our response as well to our motion

        23         with respect to the Intervenors.

        24                        And they indicated that if

        25         Ms. Massie, if the Intervenors get to put on





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         1         evidence of the educational value of diversity, well

         2         then they ought to be able to too.  And it seems to

         3         me that we're on a whole different ball game at that

         4         point.

         5                        THE COURT:  That's Professor Franklin

         6         and Montoya and so forth?

         7                        MR. KOLBO:  Yes, I think a number of

         8         them tend to cross into that area.  All of the last

         9         four Montoya, Sumi Cho, Marjorie Schultz,

        10         understanding that only one may be called now but

        11         here is what each are supposed to testify about.

        12                        Why it's necessary to have a critical

        13         mass of minority students for those students who

        14         achieve their full potential.

        15                        That's just isn't one of the issues

        16         as I understand it that we're trying in that narrow

        17         scope of the trial.  Those are our concerns, your

        18         Honor.

        19                        THE COURT:  Thanks.

        20                        MS. MASSIE:  Thank you, Judge.  Let

        21         me say first that we don't intend to have any of

        22         these witnesses if they're called to testify about

        23         the educational benefits of diversity.

        24                        THE COURT:  Good, because I was going

        25         to rule in the Plaintiff's favor, because it's not





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         1         an issue here.

         2                        MS. MASSIE:  We know that.

         3                        THE COURT:  And the University take

         4         exception to it also, because they feel that they

         5         have those put some witnesses on, that they have

         6         strong witnesses in which they have not put them on

         7         and they were not limited.  Go on.

         8                        MS. MASSIE:  That's understandable

         9         and we have no dispute with any of that.  All of

        10         these witnesses will go to questions that you've

        11         identified at the trial.

        12                        They'll go to why there's a score gap

        13         in the LSAT.  For example, they're go to why you

        14         have to take the kind of breaks in admissions to

        15         move toward fairness and equality in law school

        16         education.  That will go to the extent to which you

        17         have to take in account of race in admissions.

        18                        In that regard, they're not

        19         completely unlike Syverud on the question of extent.

        20         Mr. Kolbo was just objecting to the idea that

        21         critical mass is still an issue in this case.

        22                        But you the other day ruled that

        23         Kent Syverud could testify based in part on his

        24         testimony on critical mass, which has to do with the

        25         extent to which race has to be taken into account in





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         1         the law school admissions process.

         2                        THE COURT:  Well, I've limited it to

         3         a very narrow--well, I didn't limit it, but they

         4         intended to call him for the very limited and narrow

         5         issues.  But, go on.

         6                        Well, I'll tell you how I'm going to

         7         rule, because it's not a secret.  I am going to

         8         again indicate, and I just indicated to you, that as

         9         to those issues that are not relevant here shouldn't

        10         be presented.

        11                        I'm not going to tell you exactly how

        12         to present your case and I don't intend to do that.

        13         You have 30 hours total, I don't know how many you

        14         have used so far.

        15                        However, I will accept any during the

        16         testimony before you spend the money bringing these

        17         folks in, remember that I'm ongoing to allow that

        18         which is really relevant.

        19                        And again history, the history of

        20         discrimination in this country the Plaintiffs are

        21         not disputing the effects of that and so forth.

        22                        So, those issues that are before me,

        23         and again I don't know everything that these

        24         witnesses are going to testify to.  I think I have a

        25         total of maybe 20 pages here between all parties in





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         1         relation to this particular motion.

         2                        So I'm going to deny the motion.

         3         However, with the understanding that both Plaintiff

         4         as well as the University may make objections as to

         5         relevance.  If it's not relevant, I'm going to take

         6         a pretty hard line on that.

         7                        MS. MASSIE:  That makes sense.

         8                        THE COURT:  Okay.  We'll be back at

         9         1:15.

        10                             (A brief recess was taken.)

        11                         -     -     -

        12

        13

        14

        15

        16

        17

        18

        19

        20

        21

        22

        23

        24

        25





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         1                             (Court back in session.)

         2                        THE COURT:  Okay, you ready?

         3                        MS. MASSIE:  Yes, your Honor.

         4

         5                       CROSS-EXAMINATION

         6   BY MS. MASSIE:

         7   Q.    Hi, Dr. Raudenbush.

         8   A.    Hi.

         9   Q.    I never introduced myself earlier, we've never met

        10         before today, is that right?

        11   A.    That's right.

        12   Q.    I'm going to ask you, Dr. Raudenbush to turn to your

        13         original report in this matter which is date

        14         January 22, 1999, and I believe it is at 145, do you

        15         still have it in front of you?

        16   A.    No, I don't actually.

        17                        MS. MASSIE:  Is it okay if I

        18         approach?

        19                        THE COURT:  Please.

        20   BY MS. MASSIE:

        21   Q.    And this is the same report you were looking at

        22         earlier today?

        23   A.    Yes, this is my first report.

        24   Q.    Got you.  Could you turn for me to page seven,

        25         please.





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         1   A.    Okay.

         2   Q.    What I would like to do here is if--

         3                        MS. MASSIE:  Judge, do you have page

         4         seven in front of you?

         5                        THE COURT:  I sure do.

         6                        MS. MASSIE:  I'm not going to bother

         7         about projecting it then.

         8                        THE COURT:  I have it.

         9   BY MS. MASSIE:

        10   Q.    I'm going to ask you to read the paragraph that

        11         begins with the word nor, close to the bottom of

        12         that page if you would.  And I'll just ask you to

        13         read the full paragraph, and then I'm going to ask

        14         you to explain a little bit what you mean by it?

        15   A.    Okay.  "Nor does the report--

        16   Q.    (Interposing)  Can I stop you right there, I

        17         apologize.  When you say the report, you mean?

        18   A.    The report of the--the first report, I believe it

        19         was, of Professor Larntz.

        20   Q.    Thanks.

        21   A.    "Nor does the report consider the possibility that a

        22         given value on the index has a different meaning on

        23         average for different ethnic groups.

        24                        A candidates score on the LSAT and on

        25         GPA may be viewed as reflecting motivation, aptitude





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         1         and prior educational opportunities.

         2                        Presumably, if one person has had

         3         more opportunities than another and if both have the

         4         same index score, the second person must have a

         5         higher level of aptitude plus motivation.

         6                        Admissions officers have some

         7         information on each component and can use that

         8         information to ensure that those accepted for

         9         admission are uniformly capable with regard to

        10         motivation and aptitude, but diverse not only with

        11         respect to ethnicity, but also with respect to prior

        12         educational opportunity.

        13                        A sensical statistical analysis of

        14         the admissions process should use all of the

        15         available data to explore whether and by what means

        16         the University has been able to achieve such goals.

        17                        But statistical analysis that equate

        18         test scores in prior cases with aptitude and

        19         motivation to learn law, would overstate the

        20         predictor of validity of LSAT in particular.

        21                        That model will also be predicated on

        22         the assumption that prior educational opportunity

        23         had no role to play, or that the access of minority

        24         applicants to prior educational opportunities is, on

        25         average, equal to the prior educational





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         1         opportunities of Caucasian."

         2   Q.    Dr. Raudenbush, what do you mean by aptitude, do you

         3         mean in borne intellectual capacity of some kind?

         4   A.    Not necessarily.  It's hard to nail down the things

         5         that cause people to have different aptitudes for a

         6         particular subject or area of study.

         7   Q.    So you're not necessarily referring to something in

         8         a person from birth?

         9   A.    Not necessarily.

        10   Q.    And do you still agree with the views that you

        11         expressed in this paragraph?

        12   A.    Yes.

        13                        MS. MASSIE:  That's all I have.

        14         Thanks.

        15

        16                       CROSS-EXAMINATION

        17   BY MR. KOLBO:

        18   Q.    Good afternoon, Dr. Raudenbush.

        19   A.    Good afternoon.

        20   Q.    We met once, I think, before telephonically doing

        21         your deposition in the midst of a blizzard, I think?

        22   A.    That's right.  It was the longest phone call I ever

        23         had.

        24   Q.    Just for the record, my name is Kirk Kolbo and I

        25         represent the Plaintiff.  One of the lawyers





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         1         representing the Plaintiff in this particular

         2         lawsuit.

         3                        Am I correct that you have, first of

         4         all, you've been, I think, very careful several

         5         times to indicate that you have not done any

         6         statistical analysis for the purposes of quantifying

         7         the extent to which race is used in the admissions

         8         process at Michigan Law School, correct?

         9   A.    That's correct.

        10   Q.    But you have conducted a statistical analysis to

        11         assess whether race is an important factor in the

        12         Michigan Law School process, correct?

        13   A.    An important predictor in terms of just the

        14         correlation, not in terms of a factor.  It depends

        15         on what you mean by factor.  But statistically to

        16         predict.

        17   Q.    I think you used the word earlier today, causal

        18         factor?

        19   A.    We look at the causal not of race per se, but of

        20         using race.  Of a policy that uses race relative to

        21         another policy that doesn't.  We look at the causal

        22         effect of those two policies.

        23   Q.    And you look to determine whether that was the

        24         important causal effect in this case, correct?  The

        25         use of race, that is?





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         1   A.    The use of race, yes.

         2   Q.    And you have concluded, have you not as a general

         3         matter, that race is important causal effect with

         4         respect to admissions decisions that are made at the

         5         Michigan Law School, correct?

         6   A.    It's not quite that simple, if I may explain.  That

         7         the magnitude of the affect is quite large for

         8         minority applicants on average, but not for majority

         9         applicants.

        10   Q.    But you have concluded, have you not, that there

        11         would be very important consequence for the racial

        12         composition of the Michigan Law School if race were

        13         not a factor in the admissions process, correct?

        14   A.    That's correct.

        15   Q.    And your testimony has been there would be a larger

        16         impact for the group of minority students, relative

        17         to the group of non-minority students, correct?

        18   A.    That's correct.

        19   Q.    And you, in fact, have attempted to quantify the

        20         extent to which that is true, correct?

        21   A.    I have.

        22   Q.    And you have concluded that there would be, as I

        23         understand it,  very dramatic consequences in terms

        24         of the reduction of minority students at Michigan

        25         Law School if we went from the current policy to a





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         1         hypothetical race neutral policy, correct?

         2   A.    Correct.

         3   Q.    You have, I think, used terms like substantial and

         4         sharp in terms of introduction?

         5   A.    Yes.

         6   Q.    Would you agree that that would--I think Ms. Munzel

         7         the other day, I don't know if you were here for her

         8         testimony, but she suggested, she's the current

         9         Admissions director, that there would be a

        10         devastating drop in minority admissions if the law

        11         school were to go to a race neutral system and

        12         everything else in the system remained the same?

        13   A.    I wasn't present during that testimony.

        14   Q.    Would you agree with that characterization?

        15   A.    Well, the word devastating, I'm sure people might

        16         disagree as to what would be devastating.  Some

        17         people might be devastated and others might not.

        18                        I think statistically the numbers,

        19         the expected reduction in the the average

        20         probability of admission which I showed, is quite

        21         substantial.

        22   Q.    Just to use one more lay person's term.  Would it be

        23         fair to say that the consequences would be enormous?

        24   A.    Again, statistically the word enormous, it's a very

        25         subjective word.  I'd rather just stick with the





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         1         numbers and language I used in my own reports.

         2         Dramatic is about as far as I went, I don't think I

         3         necessarily used the word enormous.

         4   Q.    Maybe dramatic but not enormous?  Substantial and

         5         sharp?

         6   A.    Substantial and sharp.  I think the size of it is

         7         quite clear.

         8   Q.    And you did as you say, I've just been using terms

         9         that I understand.  I'm a history major normal not a

        10         statistical.  I'm not sure I even took a course in

        11         statistics, to tell you the truth.

        12                        But you didn't rely simply on English

        13         language, but you quantified your findings and you

        14         spent some time doing that that afternoon?

        15   A.    That's correct.

        16   Q.    And I want to ask you about some of that a little

        17         bit later as well.

        18   A.    Okay.

        19   Q.    If I may use the Defendant's board over here.  This

        20         is Exhibit 184.  This was the first slide or, I

        21         guess, the first graphic that you displayed this

        22         morning, Dr. Raudenbush.  And I want to just ask you

        23         a couple of questions about it.

        24                        This is a display of what, I guess,

        25         would be descriptive statistics, correct?





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1   A.    Yes, these is descriptive statistics.

         2   Q.    And one of the things that you demonstrated through

         3         this is for the year 2000, for example, there were

         4         about 14.4 applicants who were minority students

         5         UMS.  I will use the same shorthand.  Of all

         6         minorities, you only know Asian Americans, for

         7         example, are not included.

         8                        Generally what we're talking about is

         9         UMS or minority students in the context of your

        10         testimony, correct?

        11   A.    That's correct.  They're not classified as being

        12         underrepresented minority students, because the law

        13         school policy doesn't include them in the category

        14         of people who, as I remember, have been historically

        15         discriminated against and would likely be

        16         underrepresented.

        17   Q.    And if I could just have the same understanding that

        18         you had with Mr. Delery this morning, unless I say

        19         otherwise, when I talking about minority students,

        20         I'm talking about the underrepresented minority

        21         student groups that we talked about earlier, okay?

        22   A.    Fair enough.

        23   Q.    And the year 2000 about 14.4 percent minority

        24         students applied, and about 35 percent of those were

        25         admitted, correct?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   127




         1   A.    That's right.

         2   Q.    And about the same percentage of the enrollments

         3         following the yield 14.5 percent enrolled about the

         4         same as the total number of applicant pool, correct?

         5   A.    That's right.

         6   Q.    And then you got the numbers up there for Caucasians

         7         as well?

         8   A.    Right.  Actually for non-minority.

         9   Q.    Non-minority, right.  Which does include Asian

        10         Americans, I think?

        11   A.    Yes.  As well as those whose ethnicity us unknown.

        12   Q.    I just want to understand that this analysis, for

        13         example, the total numbers of minority students who

        14         are admitted, that's without regard to any

        15         consideration of relative qualifications, correct?

        16   A.    That's right.  These are just simply descriptions of

        17         who was admitted.

        18   Q.    This involves no analysis that compares the

        19         credentials of those two groups, minority students

        20         and non-minority students?

        21   A.    That's correct.

        22   Q.    Now, would you agree that grades and test scores are

        23         very important predictors for all applicants at the

        24         law school?

        25   A.    Yes, I would.





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         1   Q.    Grades and test scores are very important predictors

         2         for minority students?

         3   A.    Yes.

         4   Q.    Grade and test scores are very important predictors

         5         for non-minority students?

         6   A.    Yes.

         7   Q.    And is it fair to say then that based on what you

         8         have seen in the data, the law school certainly uses

         9         grades and test scores to make decisions with

        10         respect to all applicants?

        11   A.    Certainly test scores and grades play a very heavy

        12         role for all subgroups of applicants.  I don't know

        13         about each individual applicant, but certainly for

        14         all the ethnic groups, absolutely.

        15   Q.    Speaking in terms of groups though, we can certainly

        16         say that the law school uses, looks at and makes

        17         decisions based on grades and test scores of all

        18         applicants.

        19                        And that's a true statement with

        20         respect to minorities, and that's a true statement

        21         with respect to majority students, correct?

        22   A.    Correct.

        23   Q.    Is it true though that you have also found in

        24         looking at the data, that the relative importance of

        25         those factors, grades and test scores, in at least





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         1         the decisions that are made out of the Admissions

         2         Office.

         3                        The relative importance is different

         4         for different racial groups?

         5   A.    The regression co-efficients are different for

         6         different groups.  Which doesn't necessarily imply,

         7         however, that their relative to importance in making

         8         the decisions is different.

         9                        The regression co-efficients don't

        10         necessarily reflect the process that makes the

        11         decisions.  It's a statistical association that

        12         we're looking at here.

        13   Q.    Could you get Exhibit 146 for Dr. Raudenbush.  It's

        14         one of your reports, maybe you have it in front of

        15         you.

        16   A.    I have it.

        17   Q.    It's your report dated March 3, 1999?

        18   A.    I have got it.

        19   Q.    And I'm on page five.

        20   A.    Okay.

        21   Q.    I'm on the last full paragraph.  I'm just going to

        22         read, I may stop to make sure that we can--correct

        23         me if I'm reading things wrong, and I also want to

        24         ask you if these are true statements in your report.

        25                        First sentence, "The evidence of





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         1         these effects", and I assume the evidence means the

         2         data you looked at, correct?

         3   A.    Now, you're starting in the middle here.  Okay, I

         4         see.  Go ahead.

         5   Q.    The evidence of these effects, and when we're

         6         talking about evidence here we're talking about the

         7         data you looked at, right?

         8   A.    Right.

         9   Q.    "Is presented in detail a series of logistics

        10         regressions in the appendix."  And you attach an

        11         appendix to your report here, correct?

        12   A.    Correct.

        13   Q.    And continuing on, "These analysis show that for all

        14         applicants grades and test scores are extremely

        15         important as predictors of mission to the law

        16         school."

        17                        And we just agree that that's true,

        18         correct?

        19   A.    That's correct.

        20   Q.    And then you go and state, "Other factors are also

        21         important for all applicants, however, the relative

        22         importance of each factor differs as a function of

        23         underrepresented minority status.

        24                        Test scores, grades, Michigan

        25         residents and gender play quite different roles in





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         1         determining the probability of admissions for these

         2         two groups."

         3                        Are those all true statements?

         4   A.    Yes.  Now, these are statements of statistical

         5         association, not statements of what people are

         6         thinking about when they make their decisions.  But,

         7         yes, that's true.

         8   Q.    Just to quote again, "The relative importance of

         9         each factor differ as a function of underrepresented

        10         minority status."

        11                        Is that a true statement?

        12   A.    That's a true statement.  You need to though look at

        13         the sentence just above it which talks about

        14         important as predictors of admission.  That's all I

        15         mean to say.  Otherwise I agree.

        16   Q.    And again I don't want to get into too much

        17         technical jargon, because I won't be able to

        18         understand it or ask the right question.

        19                        But we're talking predictors.  There

        20         you're assuming that, first of all, grades and test

        21         stores were used as predictors in your regression

        22         analysis, correct?

        23   A.    That's correct.

        24   Q.    And we can fairly assume, can we not, that they're

        25         predictors because the Admissions office is using





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         1         grades and test scores to make admissions decisions,

         2         correct?

         3   A.    It seems very unlikely that they would be as strong

         4         predictors as they are if the Admissions people were

         5         completely ignoring them.

         6                        And everything I know about the

         7         policies says that they're supposed to be important

         8         predictors.  So I guess in that sense the data are

         9         consistent with the policy.

        10   Q.    So, if they are strong predictors, grades and test

        11         scores, and if we can assume that the Admissions

        12         Office is using them, and if we can conclude that

        13         they have a different relative importance for

        14         different racial groups, can't we draw a conclusion

        15         that the Admissions Office is attaching a different

        16         relative importance to those factors in considering

        17         minority applicants?

        18   A.    No, we can't.  We definitely cannot draw that

        19         conclusion from these data.  I can explain that if

        20         you like, but we can't.

        21   Q.    No, I just was curiously looking for an answer.

        22   A.    Okay.

        23   Q.    Now, I guess I would like to go next, jumping over a

        24         number of of your exhibits.  I would like to go to

        25         the--maybe I should just put it up, because I'm





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   133




         1         going to be talking about it if not immediately then

         2         soon, Exhibit 187.

         3                        And I'm not going to draw your

         4         attention to this immediately, but I hope to lead up

         5         to it.

         6                        As I understand it, you use logistic

         7         regression, the same mode of analysis that

         8         Dr. Larntz used.  You don't have an objection to the

         9         use of that mode of analysis to form some

        10         comparative analysis, do you?

        11   A.    No, I don't.

        12   Q.    And as I understand it, you made a choice--you have

        13         to make a choice in using logistic regression about

        14         what predictor variables we're going to use?

        15   A.    That's correct.

        16   Q.    You makes some assumptions about the fact that

        17         they're probably--they probably have predictor

        18         value, correct?

        19   A.    You do, yes.  You start by hypothesizing what things

        20         might actually predict the outcome, yes.

        21   Q.    And in this case you choose grades and test scores?

        22   A.    Yes.

        23   Q.    And it's not clear to me, maybe you can just explain

        24         this to me.  I think you got one regression model

        25         that just uses grades and test scores.  And then





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         another one that uses a few others like residents

         2         and gender and so forth, is that correct?

         3   A.    That's correct.

         4   Q.    Which of those regression analysis are equations

         5         that you used in coming up with the comparative data

         6         that you got there with Exhibit 187?

         7   A.    We used the one that had the other factors,

         8         including gender and residents.

         9   Q.    Now, you didn't use any factors that Dr. Larntz did

        10         not use, did you?

        11   A.    No, I don't think we did.

        12   Q.    You used nothing in addition to the factors that

        13         Dr. Larntz used?

        14   A.    That's correct.

        15   Q.    In constructing your regression analysis?

        16   A.    That's correct.

        17   Q.    And I think you made this clear, and I think your

        18         report makes it clear.  There are a lot of factors

        19         other than grades and test scores that go into

        20         admissions decision making, correct?

        21   A.    That's correct.

        22   Q.    Nobody disputes that?

        23   A.    Nobody disputes it, but the policy seems to list

        24         quite a large number of things.

        25   Q.    And you didn't take account any of those other





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         factors other than what you did, correct?

         2   A.    That's right.

         3   Q.    And as I understand it, you came to your conclusions

         4         about what would happen to minority admissions by

         5         formulating a regression equation that best explains

         6         admissions decisions for majority students, correct?

         7   A.    That's what generated these numbers, yes, that's

         8         right.  We checked it with another methodology, but

         9         we did do what you said, correct.

        10   Q.    And when I say, again, I apologize if I'm not very

        11         precise, it's just because I can't be in some of

        12         these with my limited facility of statistics.

        13                        But with respect to the regression

        14         analysis for majority students, what you were trying

        15         to do there is to come up with an equation with

        16         grades, test scores and these few other factors as

        17         predictors, that best explains admissions decisions

        18         for majority students?

        19   A.    That's correct.  Actually we did estimate those for

        20         both majority and minority, but in generating these

        21         we actually used the resulting majority equation.

        22   Q.    And the equation--to get the equation that best

        23         explains the result, what you're doing, are you not,

        24         you're kind of working backwards to try and figure

        25         out how much weight in the equation one would have





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         to give factors, the predictor variables like grades

         2         or test scores, in order to get the best explanation

         3         for the result, correct?

         4   A.    That's true.  But I'm not actually creating those

         5         weights.  Those weights are being estimated from the

         6         data.  I just want to make sure.

         7   Q.    Absolutely, I understand.  We're working backwards,

         8         you're trying to explain, you see the outcome and

         9         now you're trying to work backwards with an equation

        10         to understand how that outcome can be best

        11         explained?

        12   A.    Can be best predicted.

        13   Q.    It's not a perfect prediction, because there are

        14         other factors?

        15   A.    That's correct.

        16   Q.    But you're trying to come up with an equation that

        17         best predicts what happens, correct?

        18   A.    That's correct.

        19   Q.    And to do that, or ultimately looking to get the

        20         result, you end up with weights being assigned to

        21         whatever the predictor values are?

        22   A.    That's correct.  Those are estimated from the data

        23         and then we use those to predict the probabilities

        24         of admission, correct.

        25   Q.    So, there's a weight that you end up with through





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         this equation, following based on whatever effects

         2         however, that would be assigned to grades and test

         3         scores?

         4   A.    Correct.

         5   Q.    As well as the other few objective factors that you

         6         looked at?

         7   A.    That's right.

         8   Q.    And that was just for majority students though,

         9         right?

        10   A.    We did it for both, but as I said the one we

        11         actually used for these are listed in the equation,

        12         correct.

        13   Q.    So, there's a separate regression equation that

        14         would best explain, best predict I guess is the

        15         word, admission outcome for the minority students

        16         considering the same predictor variables, correct?

        17   A.    That's correct.

        18   Q.    And it's different because, again, you found that

        19         there is a different relative importance, at least,

        20         in terms of the effects with respect to how grades

        21         and test scores are considered for these two racial

        22         groups, correct?

        23   A.    That's correct.

        24   Q.    Could I ask Wayne to put up on the board, I guess at

        25         this point, I think it's the second to the last page





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         of Dr. Raudenbush's report.  It's Appendix A1.

         2   A.    Same report we're looking at here?

         3   Q.    This is the same report and it's Table A1, it's the

         4         second to the last page.

         5   A.    I have got it.

         6   Q.    Believe me, I'm not going to ask a lot about this

         7         because I'll be totally lost very soon.

         8                        But do I understand here you have

         9         reported the equations for the two different racial

        10         categories that you designed, or I should say

        11         figures out the regression equation for?

        12   A.    That's correct.

        13   Q.    On the left-hand column on the left side there is

        14         the regression equation for whites and Asians?

        15   A.    That's correct.  Yes, that actually does include

        16         Native Americans.  I checked on that, it include

        17         actually white--I'm sorry, whites and Asians and

        18         blacks, Hispanics and Native Americans, yes.

        19   Q.    Whites and Asian America?

        20   A.    That's correct.

        21   Q.    That's the non-minority group?

        22   A.    Right.

        23   Q.    That's the the equation on the left?

        24   A.    Yes.

        25   Q.    That you used to assess your--to form your





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         1         conclusion about what would happen under a race

         2         neutral system, correct?

         3   A.    That's correct.

         4   Q.    And on the right is a separate equation, correct?

         5   A.    Correct.

         6   Q.    A different equation.  And that's the equation that

         7         best predicts admissions decisions for the minority

         8         students, at least, considering these predictor

         9         variables?

        10   A.    Correct.

        11   Q.    And they're different again because we have

        12         concluded in looking at the data that the relative

        13         importance of these factors is different, correct?

        14   A.    Yes.  The intent of which they actually predict the

        15         outcome is different.  Of course you can see that

        16         they are, as we said before, very important for both

        17         groups.

        18   Q.    Right.

        19   A.    But they're different.

        20   Q.    Very important and very different, correct?

        21   A.    They're different.

        22   Q.    Okay.

        23   A.    The extent of the difference, of course, is somewhat

        24         different in different years.  But there tend to be

        25         some difference.





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         1   Q.    One can measure the extent of the difference,

         2         correct?

         3   A.    In all of my reports, in fact, I give them year by

         4         year as you can see.

         5   Q.    Right.  You have, I think, you just said it, but you

         6         did very similar analysis for each of the admissions

         7         data, years that we have, correct?

         8   A.    That's right.

         9   Q.    Your supplemental report dated March whatever one

        10         you're looking at, March 3, 1999, this is for these

        11         particular years.  Later reports, I think, include

        12         this data at least for '99 and 2000, I think,

        13         correct?

        14   A.    That's right.

        15   Q.    Did you do these--I don't even remember, did you

        16         construct these separate regression equations for

        17         all of the years in question?

        18   A.    I did.

        19   Q.    Okay.  In all cases they were different equations?

        20   A.    They were sometimes more similar and sometimes they

        21         generally were statistical different.  They were

        22         different more often then they were the same or

        23         similar.

        24   Q.    Am I correct that one of the premises in your

        25         opinions, is that you use the term in your report





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         1         and I'm looking at page seven, if you want to take a

         2         look at this.

         3                        Underrepresented minority students

         4         are disadvantaged with respect to GPA, test scores

         5         and other factors relative to other racial groups,

         6         that's language that you use there?

         7   A.    Yes, that's language that I used, right.

         8   Q.    When you used the word disadvantage there, is that a

         9         statistical term?

        10   A.    Yes.

        11   Q.    And does that mean that they have lower test scores

        12         and grades?

        13   A.    They have lower means on something that's related to

        14         the outcome, correct.  In this case grades and test

        15         scores.

        16   Q.    And it was because--and you have got a reference to

        17         other factors here.  What other factors did you

        18         determine that minority students were disadvantaged

        19         with respect to relative to other racial groups?

        20   A.    Actually in this data set I actually don't, in the

        21         law school data set, I can't think of any other

        22         factors where I have evidence that they were

        23         disadvantaged with possible exceptions of alumni

        24         status.

        25                        This was perhaps a typo, because I





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         1         wrote a similar report in the undergraduate case

         2         where there were other facts.

         3   Q.    I understand that, that's happened to me a lot.

         4   A.    It's embarrassing, but that seems to be what's here.

         5   Q.    And do I understand that there was a significance

         6         for your comment on that in your report, that there

         7         was a disadvantage with respect to these factors.

         8                        The significance of that was that you

         9         concluded that to eliminate minority status as a

        10         consideration while maintaining these other criteria

        11         in place, I assume to be test scores and grades,

        12         will presumably reduce the probability of admission

        13         of minority students possibility substantially?

        14   A.    That's correct.

        15   Q.    So, that was, at least, one of the reason you

        16         thought that might occur?

        17   A.    That's right.

        18   Q.    And you, in fact, did an analysis that confirmed

        19         your conclusion in that regard, is that correct?

        20   A.    That's correct.

        21   Q.    Correct.  I think that's all I'm going to need for

        22         that.  You may want to put up again the graphic I

        23         had up, Exhibit 187.

        24                        Now, that we have got some foundation

        25         for it, I've had a chance to ask you some questions





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         1         about the equation, the non-minority equation that

         2         you used to assemble your differences and

         3         probability.  I want to ask you some questions about

         4         the conclusions.

         5                        You have concluded for the year 1995

         6         that if one were to take the--if one were to run the

         7         minority admissions, the data that you got to the

         8         majority regression equation, one would see a drop

         9         in minority student admissions from .26 to .04, is

        10         that correct?

        11   A.    In '95.

        12   Q.    In '95?

        13   A.    Right.

        14   Q.    That's about, what, about a 85 percent drop?

        15   A.    It's something like that, I guess.

        16   Q.    Very substantial?

        17   A.    Yes, very substantial.  It's actually the biggest

        18         one in all the years.

        19   Q.    And that's just as a result of changing one factor

        20         in the admissions process, correct?

        21   A.    That's correct.

        22   Q.    That's just under the assumption that you remove

        23         race as a factor in admissions?

        24   A.    Correct.

        25   Q.    And the other part of the assumption, or at least





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         1         one other assumption is, that everything else stays

         2         the same in the admissions process, correct?

         3   A.    Well, we have to assume that everything else stays

         4         the same.  What we're able to actually control for

         5         unfortunately is simply grades and test scores.  And

         6         Michigan residents and gender which are not very

         7         important as predictors.

         8                        So, essentially we're using grades

         9         and test scores, and we're forced to assume that the

        10         other things are operating in the same way and not

        11         correlated with those.

        12   Q.    As we talked about earlier, there's a lot of factors

        13         that are considered?

        14   A.    Right.

        15   Q.    Grades and test scores are important for everybody?

        16   A.    Right.

        17   Q.    They're very important.  And your assumption would

        18         by running the minority applicants through the

        19         majority equation, that the importance to the LSAT,

        20         for example, would stay the same, correct, as it is

        21         today?

        22   A.    That's right.  The predictive power of it would be

        23         the same, correct.  Not the importance of the

        24         admissions decision, but the statistical importance

        25         in doing the predictions would stay the same.





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         1   Q.    It would remain as important a factor under your

         2         comparative analysis as it is today, at least, for

         3         the majority students, correct?

         4   A.    Correct.

         5   Q.    And other factors--that's true with all the other

         6         factors as well, grades would have the same?

         7   A.    Grade will, yes.  The other factor we is data on,

         8         yes.

         9   Q.    Everything is held constant?

        10   A.    Right.

        11   Q.    With only one exception?

        12   A.    Right.

        13   Q.    And that's the removal of the consideration of race

        14         in the process?

        15   A.    Right.

        16   Q.    And just with that one factor you get this very

        17         substantial drop in the admissions, correct?

        18   A.    Correct.

        19   Q.    Now, you've indicated that there would be a change

        20         also with respect to the non-minority students, and

        21         you've indicated that whereas with minority students

        22         there would be a negative impact.

        23                        With respect to non-minority

        24         students, there would be a positive impact with

        25         respect to more offers of admission?





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         1   A.    The average probability of admission would go up

         2         with majority students if race were eliminated as a

         3         factor.

         4   Q.    And you've made clear that the difference in the

         5         average probabilities would be substantial, that is

         6         a much greater impact with respect to the minority

         7         groups versus the majority?

         8   A.    Yes, their probabilities would go down quiet

         9         substantially.  The majority probabilities would go

        10         up, but not very much.

        11   Q.    But I want to be clear about something else.  That's

        12         comparing the two groups, correct?

        13   A.    Correct.

        14   Q.    Now, with respect to individuals, the change is

        15         going to be--there's going to be a number of

        16         individuals who are minority students who are not

        17         going to be admitted because of this change to a

        18         race neutral system, correct?

        19   A.    Correct.

        20   Q.    And do I understand your analysis to be, or the

        21         consequence of your analysis to be, that those seats

        22         in the class will then be filled by non-minority

        23         students?

        24   A.    What actually would happen would be that there would

        25         be a small addition to the number of seats that





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         1         about 3000 people would be competing for.

         2   Q.    But the absolute numbers would be on a one to one

         3         ratio, wouldn't they?

         4   A.    The absolute numbers in terms of the composition of

         5         the final student body?

         6   Q.    For every minority?

         7   A.    For those admitted, yes.  The number admitted, under

         8         our simulation the numbers of minority

         9         students--this is an assumption, that the numbers of

        10         minority students--the difference of the number

        11         admitted would be equal to the gain in the number of

        12         majority students admitted.  I think that's your

        13         point.

        14   Q.    The absolute numbers are on one to one ratio,

        15         correct?

        16   A.    Correct.

        17   Q.    So, for every minority student who is out, there's

        18         presumably a majority students who wins?

        19   A.    Somewhere out there somebody will win that extra

        20         seat that about 3000 people competing for.

        21   Q.    We just don't know who that is?

        22   A.    That's correct.

        23   Q.    Just like we don't know which minority student is

        24         going projected?

        25   A.    Right.  We assume that the credentials of those





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         1         people would be evaluated, and the people with the

         2         best credentials would be the ones who win the seat.

         3   Q.    Can we just, maybe, take an example.  I don't

         4         suppose you have a calculator with you?

         5   A.    I do.

         6   Q.    You may not need it for this one.

         7   A.    I hope I don't, but I have one.

         8   Q.    I think the first slide we had up there with the

         9         total numbers, yes, let's take that one.  And I'll

        10         keep in front of me, I think it would be hard to

        11         have two of them up there at the same time.

        12                        But in 1995 we had 262--actually,

        13         let's go down to the bottom.

        14   A.    These are all 2000 data.

        15   Q.    I'm sorry, 2000.  Let's go to the bottom of the

        16         chart you have 484 minority applicants, correct?

        17   A.    Correct.

        18   Q.    And what I see, at least, on my Exhibit 187 is that

        19         under the current system, 35 percent were offered

        20         admission?

        21   A.    Right.

        22   Q.    And under, at least, in Exhibit 187 if you go to

        23         Policy B the race neutral system we go to four

        24         percent admitted.

        25   A.    Okay.  No, that wasn't in 2000.  2000 it was ten





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         1         percent.

         2   Q.    I'm sorry, I'm getting confused.  Ten percent.

         3   A.    Okay.

         4   Q.    Ten percent under the race neutral system in the

         5         year 2000?

         6   A.    Right.

         7   Q.    And so that's actually 35 percent is actually two

         8         and a half times ten percent, right?

         9   A.    Three and a half, I think.

        10   Q.    I told you I would embarrass myself what that math.

        11         We have even got to the statistical.

        12                        Can you calculate what that would

        13         mean in the year 2000 in terms of the number of

        14         minority students?

        15   A.    If the proportion admitted were ten percent out of

        16         the 484 who applied, there would be 48 admissions.

        17   Q.    Okay.

        18   A.    48.4.  But we can't admit that point four person, so

        19         we make it 48.

        20   Q.    I understand.  And that's about 120 fewer

        21         admissions?

        22   A.    Right.

        23   Q.    And so presumably there would be 120 more offers of

        24         admissions to other racial groups?

        25   A.    Correct.





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         1   Q.    Did you ever assess what the overall effect on the

         2         minority composition, and here I'm going to use the

         3         term differently.  I'm going to use the term, let's

         4         include Asian Americans and any other groups other

         5         than UMS students.

         6   A.    So majority you're referring to?

         7   Q.    Well, Asian Americans and I presume there are other

         8         racial groups that are not necessarily majority

         9         groups.  Caucasians, Asian Americans?

        10   A.    Yes.

        11   Q.    Did you do any analysis--

        12   A.    (Interposing)  Maybe we should take Asians so I can

        13         understand where you're going.

        14   Q.    Okay.  Let me back up a little bit.  I'm wondering

        15         whether you did any analysis to determine what the

        16         overall impact would be on minority admissions at

        17         the law school, as a result of going to a race

        18         neutral system, including Asian American in the

        19         definition of minority students?

        20   A.    No, I didn't do that.  I just used the definition of

        21         underrepresented minority students that was in the

        22         1992 policy.

        23   Q.    Is it fair to presume that because Asian Americans

        24         are sort of considered as majority students for

        25         these purposes here, that some of those seats that





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         1         would open up, would be seats which would be

         2         competed for Asian Americans?

         3   A.    I think I now understand the analysis that you might

         4         be suggesting.  I did do an analysis, I didn't

         5         record it in my reports, but I did do an analysis of

         6         how the average probability of admission would

         7         change for Asian Americans under Policy A and

         8         Policy B.  And the increase is exactly the same as

         9         it is for Caucasians.

        10   Q.    Actually I was just trying to figure out what the

        11         total minority population would be of the law school

        12         under the race neutral system that you have

        13         suggested as a hypothesis?

        14   A.    No, I didn't use any definitions of minority other

        15         than the underrepresented minority status definition

        16         that appeared in the 1992 policy.

        17   Q.    Did you consider using any other frame of reference

        18         to assess what would happen under a race neutral

        19         system, other than the current system?

        20   A.    No.  You know, our Policy A was always based on the

        21         data that we had.  And Policy B was the simulated

        22         alternative.

        23   Q.    Would it have been possible to have assigned

        24         different values to LSAT and grade points as

        25         predictors, and determine what the different effect





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         1         would be for different values?

         2   A.    It would be very possible to do that.

         3   Q.    You didn't do that though?

         4   A.    I didn't do that.

         5   Q.    And one could, I suppose even, eliminate the LSAT

         6         and then make some predictions based on what would

         7         happen to minority enrollment, correct?

         8   A.    Well, the problem with that would be, if the current

         9         policy used both LSAT and GPA and then we came up

        10         with an alternative policy, how would we know what

        11         the association would be between GPA and the

        12         probability of admission.

        13                        See we always base that on the data

        14         that were available, and the data that was available

        15         were based on the current policy that uses both LSAT

        16         and GPA.

        17                        Certainly you could say, let's just

        18         assigned a weight of 1.0 to the grade point average

        19         generate predicted values and then do the

        20         simulation, and then compare that to what we do now.

        21   Q.    Well.  I understand that point.  In other words,

        22         it's kind of a purely academic exercise to

        23         understand where you might want to be with respect

        24         to different values, correct, different weights?

        25   A.    Well, generally what I would try to do as simulation





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         1         would be to make sure that if I'm comparing two

         2         policies, Policy A and B, would be make sure that

         3         I'm simulating important policy relevant

         4         alternatives.

         5                        And that's how I would construct the

         6         A and B in this case.  We tried to tailor it just in

         7         such a way that it would really be relevant to the

         8         policy options that are kind of at issue.

         9   Q.    Well, one possibility is if the Admissions Office

        10         decided to use LSAT scores and grades in a less

        11         important way then they are today, and they were

        12         admissions decisions generated as a result of that

        13         process, one could then construct a new regression

        14         equation that best predict outcomes under that new

        15         system, correct?

        16   A.    Yes.  In general we ought to be able to try to, if

        17         we had a realistic policy alternative, try to

        18         simulate what would happen as long as we have the

        19         data that are relevant to that alternative.  Some

        20         data that are, at least, relevant for that

        21         alternative policy.

        22   Q.    You made, in your testimony you made some statements

        23         or assumptions about what might happen to the yield

        24         under the hypothetical system you proposed?

        25   A.    Yes.  I speculated that changing the average





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         1         probability admission for a particular group could

         2         effect the yield.  Although, to highlight really the

         3         point in our simulations, we assume that the yield

         4         would be the same.  Which may well not be true.

         5   Q.    That's something that's kind of outside your

         6         expertise, isn't it, like how the yield might be

         7         effected?

         8   A.    Not entirely outside of my expertise.  I know that

         9         in graduate admissions that I'm involved in that

        10         people who have the highest grades and test scores

        11         generally have the lowest probability of accepting

        12         an offer.

        13                        And we assume, and it seems to be

        14         true when they check into it, that they have offers

        15         from other highly prestigious universities.

        16   Q.    I have just a couple of questions for you.  Well,

        17         let me back up.

        18                        You've indicated, I think, you've

        19         acknowledged that there are problems with these

        20         models regression equations, because there are all

        21         of these other factors that are out there, and one

        22         can't take account of all of them?

        23   A.    That's correct.

        24   Q.    But my understanding is, you're pretty confident

        25         about your conclusions here with respect to what





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         1         would be the consequences of going to a race neutral

         2         system, am I correct in that assumption?

         3   A.    We're able to check, to create what we call bounds,

         4         upper and lower bounds, on the causal effect for the

         5         majority students, that don't depend at all on the

         6         assumptions of the regression equation.

         7                        And in that sense to sort of bound

         8         how much uncertainty get through into the system by

         9         the fact that we don't know all of this stuff.

        10   Q.    And as a result, I think you said you did another

        11         check on this as well, for example?

        12   A.    Yes.

        13   Q.    And as a result of these checks that you get, you're

        14         pretty confident then about your results here, in

        15         terms of what would be the relative probability

        16         changes in going to a race neutral system?

        17   A.    Yes.  And I might add just to reiterate something I

        18         did mention this morning.  We're more confident

        19         about the bounds for majority students under the two

        20         policies then we are minorities students, because

        21         the bounds are narrower.

        22   Q.    Are you confident that there will be a--all other

        23         things being held equal, and if one were to go to

        24         the race neutral system under the hypothesis that

        25         you have explained, are you pretty confident that





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         1         there would be these very dramatic substantial sharp

         2         reductions in the admission of minority students?

         3   A.    Yes, I'm quite confident that they would be

         4         substantial.  The bound is just--there's a little

         5         more uncertainty there because the bound is wider,

         6         but, yes,

         7   Q.    And just to be clear on this.  This decline that you

         8         have testified to it, the only thing that accounts

         9         for that, at least, in your statistical analysis is

        10         the removal of race as a factor in the admissions

        11         process, correct?

        12   A.    Yes.  Well, the question of why is it that there

        13         would be a substantial reduction is more complex

        14         then what you just said.  But the policy change

        15         that's generating it is this change, that's right.

        16                        I mean again, it's contingent

        17         upon--basically there's two other factors that are

        18         critical in making that, in effect, large.

        19                        One is the fraction of all people who

        20         are admitted.  The fact that this is a selective law

        21         school, lots of people apply, most people are

        22         rejected.

        23                        And secondly, the fact that there is

        24         a strong association between grids and test scores

        25         on the admissions decision.  And if those two things





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         1         are true, then differences between two groups

         2         minority and majority in those grids and test scores

         3         can translate into--even if those differences

         4         aren't very large, can translate into big

         5         differences in the probability of admission under

         6         the new policy.

         7                        So, I just wanted to create a little

         8         context there to understand why this is occurring

         9         when you change the policies, because of other

        10         conditions in the system.

        11                        Namely the selectivity of it and the

        12         reliance on grades and test scores that make that

        13         happen.

        14   Q.    And the relevant importance of those factors for

        15         race is relevant as well, correct?

        16   A.    Not for race, it's just that minority and majority

        17         students have different means on two variables that

        18         are very strongly predictive of admissions.

        19                        If those variables weren't so

        20         strongly predicted of admissions, then you wouldn't

        21         see such a big difference.

        22                        Also if the school were less

        23         selective, if the number of people admitted were

        24         more similar to the number who apply, you wouldn't

        25         see those differences.





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         1                        So, to understand those differences,

         2         you really have to take into account the dynamics of

         3         the system.  So you change one variable and it has

         4         that effect because of how the system works.

         5   Q.    Just a couple of questions on odds ratios.  Do you

         6         use odds ratios in the statistical work that you do?

         7   A.    I do.

         8   Q.    You sometimes find odds ratios report calculated

         9         value of infinity?

        10   A.    I don't.

        11   Q.    You've never seen one of those?

        12   A.    Typically to have an odds ratio that has an infinity

        13         you have to have a very small sample size.  You have

        14         to have one or the other of the two groups.  You

        15         have either all have the event occur, or none of

        16         them have the event occur.

        17                        And then the data I worked at, I have

        18         never found a data set where--I mean I don't usually

        19         analyze data where, let's say, everyone drops out of

        20         high school, or everyone goes to college, those

        21         kinds of data.  I've never analyzed data that have

        22         those kinds of numbers.  So I wouldn't see those

        23         large odds ratios in those kind of data.

        24   Q.    Well, just let me ask you.  If you were to see that,

        25         let's say, just forget about law school for a





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         1         minute.  If you were to see a series of odds ratios

         2         analysis, perhaps we've all used a drug, for

         3         example.

         4                        Which ten patients were administered

         5         a drug and ten of them were cured.  And in another

         6         hospital a placebo was administered to 50 people and

         7         one of them was cured.

         8                        Would one be able to compute relative

         9         odds for those two groups?

        10   A.    Yes, you could.

        11   Q.    Wouldn't relative odds be infinity?

        12   A.    Generally if we had those data we wouldn't do a

        13         statistical analysis, because if everybody is cured

        14         we don't need statistics to know it.

        15   Q.    Well, as a matter of statistical principals, do

        16         those figures yield comparative information?

        17   A.    Those figures?

        18   Q.    Yes.

        19   A.    Sure.  If I had a drug that everybody was cured and

        20         then basically nobody was cured, that would be

        21         statistical information, right.

        22   Q.    It yields comparative statistical information?

        23   A.    Yes.

        24   Q.    If it could calculate the value of the odds ratio,

        25         of the relative odds infinity?





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         1   A.    Yes.

         2                        MR. KOLBO:  May I confer with my

         3         colleague, your Honor?

         4                        THE COURT:  Of course.

         5                        MR. KOLBO:  Your Honor, I have no

         6         further questions.

         7                        THE COURT:  Defense has any other

         8         questions?

         9                        MR. DELERY:  Just a couple of

        10         questions, your Honor.

        11                        THE COURT:  Sure.

        12

        13                      REDIRECT EXAMINATION

        14   BY MR. DELERY:

        15   Q.    Professor Raudenbush, Mr. Kolbo used the term weight

        16         several times when talking about the co-efficients

        17         in your regression equations?

        18   A.    That's correct.

        19   Q.    Do you recall that?  Am I right that weight has a

        20         technical term?

        21   A.    It does.

        22   Q.    I mean a technical meaning in that sense?

        23   A.    It does.

        24   Q.    Do those co-efficients correspond to the weight that

        25         the Admission officers give the various factors when





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         1         they're making admissions decisions?

         2   A.    No.

         3   Q.    And when you use the term relative importance as a

         4         factor in the discussion earlier, am I right that

         5         you were not talking about the relative importance

         6         that Admissions officers gave the factors when they

         7         were making admissions decision?

         8   A.    You're correct, I was not doing that.

         9   Q.    We saw a moment ago the two regression equations

        10         that Mr. Kolbo discussed with you?

        11   A.    Yes.

        12   Q.    Can you conclude anything from the fact that there

        13         are two equations about how the factors are actually

        14         being considered by the Admissions officers when

        15         they're making the decisions?

        16   A.    No, you can't.

        17                        MR. DELERY:  No further questions,

        18         your Honor.

        19                        THE COURT:  Okay, you may step down.

        20                             (Witness excused.)

        21                        THE COURT:  Thank you.  I forgot, who

        22         is your next witness?

        23                        MR. PAYTON:  My next witness is

        24         Dennis Shields, I think he stepped out.

        25                        THE COURT:  No problem.





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         1                        MR. PAYTON:  I'll go get him.

         2                        THE COURT:  We can take a little

         3         break now and go from there.  Take our afternoon

         4         break.

         5                             (Court in recess.)

         6                             (Court back in session.)

         7                        THE COURT:  You maybe seated.

         8         Dean Shields.

         9                        DENNIS SHIELDS,

        10         was called as a witness at approximately 2:40 p.m.,

        11         after having been first duly sworn to tell the

        12         truth, the whole truth and nothing but the truth.

        13

        14                       DIRECT EXAMINATION

        15   BY MR. PAYTON:

        16   Q.    Would you state your name for the record?

        17   A.    Dennis J. Shields.

        18   Q.    Mr. Shields, where do you currently live?

        19   A.    I live in Durham, North Carolina.

        20   Q.    And what do you currently do?

        21   A.    I'm the assistant Dean for Admissions and Financial

        22         Aide at Duke University School of Law.

        23   Q.    And how long have you been at Duke?

        24   A.    I've been at Duke three years.  I moved there in

        25         January of 1998.





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         1   Q.    It is just about the anniversary?

         2   A.    Yes.

         3   Q.    And what did you do before you were the director of

         4         Admissions and Financial Aide at Duke?

         5   A.    I was the assistant dean and director of Admissions

         6         at the University of Michigan Law School.

         7   Q.    And when did you come to the University of Michigan

         8         Law School?

         9   A.    I started as of July of 1991.

        10   Q.    And before you were the director of Admissions at

        11         the University of Michigan Law School, what did you

        12         do?

        13   A.    I was the assistant dean for Admissions and

        14         Financial Aide at the University of Iowa Law School.

        15   Q.    Okay.  And when did you start at the University of

        16         Iowa in Admissions?

        17   A.    I just started as a third year law student in 1981.

        18   Q.    You went to Iowa Law School?

        19   A.    Yes.

        20   Q.    You graduated from Iowa Law School?

        21   A.    Yes, I did.

        22   Q.    So, you started as a third year law student, when

        23         did you start after law school, when was the first

        24         time you started in the Admissions Office?

        25   A.    Right after I graduated, that May.





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         1   Q.    And at what point did you become in charge of

         2         Admissions at Iowa?

         3   A.    I believe that was 1985.

         4   Q.    Is it fair to say that you have been in law school

         5         Admissions for about 20 years?

         6   A.    This is my 20th year.

         7   Q.    A little scary, isn't it?

         8   A.    Yes.

         9   Q.    And you've been in charge of Admissions at three

        10         schools, Iowa, Michigan and Duke for 15 years?

        11   A.    Yes.

        12   Q.    Okay.  Are you in any professional organizations

        13         that relate to law school admissions?

        14   A.    Well, I've had extensive affiliations over time with

        15         the MBA, the Law School Admissions Council.  I

        16         currently serve as council member on the Council of

        17         Legal Education and Opportunity.  I'm a member of

        18         the National Bar Association.

        19   Q.    The Law School Admissions Council, what is that?

        20   A.    Well, that's the entity that is essentially

        21         responsible for the administration of the law school

        22         admissions test, and the law school data assembly

        23         service.

        24   Q.    Okay.

        25                        THE COURT:  Is the name of that





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         1         organization is the law?

         2   A.    Law School Admissions Council.

         3                        THE COURT:  Thank you.

         4

         5   BY MR. PAYTON:

         6   Q.    And what has been your affiliation with it?

         7   A.    I served on a number of different committees,

         8         Minority Affairs Committee, I was chair of the Audit

         9         Committee.  I was a member of the board of the

        10         Law School Admissions Council for a total of six

        11         years, I believe.

        12   Q.    I want to focus your attention on your tenure as the

        13         director of Admissions at Michigan.

        14                        How did you come to be the director

        15         of Admissions?

        16   A.    I believe the associate dean for Student Affairs,

        17         Susan Ekland, wrote me a letter in late 1990 or

        18         early 1991, and invited me to submit a resume for

        19         consideration.

        20   Q.    They found you?

        21   A.    Yes.

        22   Q.    And you then underwent a process--you heard

        23         Professor Lempert and President Bollinger discussing

        24         how you came to actually be hired?

        25   A.    Yes.





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         1   Q.    You were present in court for that testimony?

         2   A.    Yes, I was.

         3   Q.    Was that accurate?

         4   A.    Yes.

         5                        MR. PAYTON:  I'm not going to go over

         6         that again.

         7                        THE COURT:  Yes, that's fine.

         8   BY MR. PAYTON:

         9   Q.    Did you know Allan Stillwagon?

        10   A.    Yes, we knew each other.  Not well, but knew each

        11         other.

        12   Q.    How did you know Allan Stillwagon?

        13                        THE COURT:  I have one question

        14         before you get into that.  How did you happen to get

        15         into admissions, just fall into it, or was it

        16         like--I'm curious?

        17   A.    My mentor who was then the dean of Admissions at

        18         Iowa, and is now the dean of the law school at

        19         Ohio State asked me if I wanted, he had a half time

        20         position, and asked me if I wanted to do it.

        21                        And I actually thought when I

        22         graduated he had made it a full time job that I

        23         would do it for a couple of years until I decided

        24         what I wanted to be when I grow up.

        25                        So, now it's 20 years later area and





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         1         either I haven't grown up, or I haven't decided what

         2         I want to be.

         3                        THE COURT:  Or it's something you

         4         really like.  Again, I am just amazed because, you

         5         know, it's such an important position in the

         6         acadame.  But most as I have heard so far have come

         7         from areas out of the acadame.

         8   BY MR. PAYTON:

         9   Q.    How did you know Allan Stillwagon?

        10   A.    Well, he was the director of Admissions at the

        11         University of Michigan.  There is a lot of

        12         recruiting travel which you do, we be at the same

        13         events, the annual meeting of the law school

        14         Admissions Council.  So we bump into one another.

        15   Q.    So you knew him before you came to Michigan?

        16   A.    Yes.

        17   Q.    Did you ever have a conversation with him about how

        18         he did admissions at Michigan?

        19   A.    No.

        20   Q.    Once you came to Michigan in the summer of 1991, did

        21         you call him up and ask him what had been going on?

        22   A.    No.

        23   Q.    Actually have you talked to Allan Stillwagon since

        24         you became the dean at Michigan in the summer of

        25         1991?





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         1   A.    We had pleasantries here in the courtroom.

         2   Q.    That is on Tuesday?

         3   A.    On Tuesday.  Other than that, I have not even laid

         4         eyes on him since 1990 maybe.

         5   Q.    Now, one of the first things that happened when you

         6         came to Michigan, was that the dean, then

         7         Dean Bollinger, put you on the faculty Admissions

         8         Committee that was charged with coming up with a new

         9         policy, is that right?

        10   A.    Yes.

        11   Q.    I'm not going to go into how the committee

        12         functioned either, you heard Professor Lempert and

        13         you heard Dean Bollinger.

        14                        Did they accurately describe how that

        15         happened and how the committee functioned?

        16   A.    Yes.  I appreciated that.

        17   Q.    But I do want to ask you this which is, what the

        18         opportunity to serve on that committee looked like

        19         to you having just arrived at the University of

        20         Michigan Law School?

        21   A.    Well, it was a tremendously exciting time for me.  I

        22         was coming to what is already believed to be one of

        23         the finest law schools in the country.  I had been

        24         asked to take on a major role.  And I think

        25         President Bollinger admitted this is an important





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         1         aspect of the law school life.

         2                        I was going to be working on this

         3         committee with a very distinguished group of faculty

         4         members that had expertise in areas that I knew less

         5         about then they did you.

         6                        But it was also an opportunity for me

         7         to walk into a situation where in many ways I had

         8         more expertise then they had.  And to help them

         9         think through this very important subject for the

        10         law school.  It was very exciting.

        11   Q.    The expertise that you had was about admissions?

        12   A.    Absolutely.

        13   Q.    About law school admissions?

        14   A.    About law school admissions.

        15   Q.    And you were the person that had the expertise on

        16         the committee in that area, is that right?

        17   A.    I don't think there's anybody else on that committee

        18         that had one-tenth the experience I had actually in

        19         Admissions.

        20   Q.    Okay.  I actually don't intend to go over the policy

        21         again either, I think we've had enough of that.  But

        22         I do want to ask you about some of your

        23         contributions to what's in the policy.

        24                        In the policy we have heard testimony

        25         and we have seen summaries about Student X, I think





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         1         there's two Student Xs, a Y and a Z.  And we heard

         2         those were actual student files, is that correct?

         3   A.    Yes.

         4   Q.    And how did those student files come to the

         5         attention of the Committee?

         6   A.    Well, I selected them along with a whole host of

         7         others.  When I arrived here I discovered that the

         8         faculty had actually not read files in years, over

         9         decades.

        10                        And as part of the process it was

        11         important for them, I thought, to get an actual feel

        12         for what it was like to review a file.  What was in

        13         it, what kind of things to consider and that kind of

        14         thing.

        15                        So I selected a whole range of files

        16         for them to peruse.

        17   Q.    At the very end of the policy, actually it's the

        18         attachment to the policy there's a grid, you know

        19         what I'm talking about?

        20   A.    Yes, I do.

        21   Q.    And there's been some testimony about that format.

        22         And that format of the grid, I think, was what

        23         Mr. Larntz used to create his model of cells?

        24   A.    Yes.

        25   Q.    You were present for this?





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         1   A.    Yes.

         2   Q.    Let me ask you this, the grid that's at the end of

         3         the policy, was it designed with the idea of being

         4         able to show how race played a role in any

         5         Admissions process or decision?

         6   A.    No, not at all.

         7   Q.    I want to talk to you a little bit about how you

         8         went about implementing this Admissions policy.

         9                        When you were figuring out how to

        10         implement this policy, and how to train people in

        11         your office about how they should go about their

        12         jobs once we're after the adoption of the policy and

        13         that's in the spring of 1992, you created a document

        14         which I believe is entitled Gospel According To

        15         Dennis?

        16   A.    Yes, that's right.

        17   Q.    What can I say?

        18   A.    Little did I know.

        19   Q.    Now, we have got Dennis.  Could you hold that out.

        20                        THE COURT:  Is that Exhibit 5?

        21                        MR. PAYTON:  I believe it's

        22         Exhibit 5.

        23   BY MR. PAYTON:

        24   Q.    You recognize this document?

        25   A.    Yes, I do.





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         1   Q.    The Gospel According To Dennis?

         2   A.    Yes.

         3   Q.    Written October 3rd, 1992, what was the purpose of

         4         this document?

         5   A.    Well, I had in that year, I anticipated in the

         6         future that I would have people who had never read

         7         the law school Admissions files in the past, that

         8         would be involved in evaluating and providing some

         9         assessment of files for me as I went about my

        10         business in making decisions.

        11                        So, this was a document I created for

        12         them, as part of their preparation for that process.

        13   Q.    Okay.  I take it you read a lot of files yourself?

        14   A.    Yes, a lot.

        15   Q.    Is it fair to say that you read most of the files?

        16   A.    Most of the files.

        17   Q.    Okay.  And who else would read files in your office?

        18   A.    There was always a number two person in my office,

        19         the assistant or associate director of Admissions.

        20         And then there were, depending on the year and the

        21         staffing kinds of things, up to one or two other

        22         people on my staff that read files.

        23   Q.    And you would give them this document?

        24   A.    I would give them this document, as well as a copy

        25         of the Admissions Policy.





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         1   Q.    Okay.  Is that all you give them?

         2   A.    Yes.

         3   Q.    That's it?

         4   A.    Well, they'd look at the bulletin and that's it.

         5   Q.    Did you ever tell them that we're trying to get X

         6         percent of underrepresented minorities?

         7   A.    I don't think I've ever said that to anyone.

         8   Q.    Okay.  That just never--nothing at all?

         9   A.    Absolutely not.

        10   Q.    You gave them these two documents.  Who else got

        11         these two documents if there were going to be

        12         members of the Admissions Committee that would read

        13         files, would they get these documents?

        14   A.    I thought it might be a little presumptuous for me

        15         to give this kind of document to a law school

        16         faculty member.  I'm sure you're familiar with--I

        17         think you even taught law school.  So you would know

        18         how they would receive a document like this.

        19                        If I have known it was going to be

        20         used in something like this, I might have

        21         appreciated that.

        22   Q.    Well, before I go into this then, let me just ask

        23         you a few questions about how you got along with the

        24         faculty in implementing the policy.

        25                        You served on the Committee and I





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         1         take it that was some relationship with the faculty,

         2         is that right?

         3   A.    Right.  I worked very close with the faculty members

         4         on the Committee.  I might back up, I think when I

         5         arrived at Michigan since I was new to the

         6         institution, it was very important for me in my job

         7         as the dean in charge of Admissions, to get to know

         8         the institution well.

         9                        And so I made all kinds of effort to

        10         interact with faculty.  I sat in on faculty meetings

        11         as a member of the dean's staff,

        12   Q.    How often did faculty meetings happen?

        13   A.    I couldn't give you a precise number, but probably

        14         at least two-thirds of the Fridays of every term had

        15         a faculty meeting.

        16   Q.    Okay.

        17   A.    And I would go to probably half of them when I was

        18         in town.

        19   Q.    Okay.

        20   A.    And I would go to lunch with faculty members, I

        21         would make an effort to go to social events that

        22         were for faculty members so I could get to know

        23         them.  Several of the faculty members invited me

        24         over to dinner at their  homes.

        25                        And so I thought as an ongoing basis





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         1         it was my job to stay in tune with various aspects

         2         of the law school, and provide plenty opportunity

         3         for them to interact with me about what I was doing.

         4   Q.    This is a two-way relationship?

         5   A.    Yes, that's the way I viewed it.

         6   Q.    Now, Ms. Munzel testified that you had trained her

         7         in how to review files and how to do Admissions, is

         8         that accurate?

         9   A.    Yes, that's true.

        10   Q.    You hired her?

        11   A.    I hired her.

        12   Q.    And she started reading files, she was your No. 2?

        13   A.    Right.

        14   Q.    So she knew this document pretty well?

        15   A.    Well, she was supposed to have read it.

        16   Q.    Now, I take it it's not going to disappoint you to

        17         learn that the Gospel According To Dennis has been

        18         retired?

        19   A.    Not at all.  I would assume that somebody else would

        20         put it a little different spin on it.

        21   Q.    The Gospel According to Dennis, it begins on this

        22         first page.

        23   A.    Yes.

        24   Q.    You see--it actually starts, this is the first page

        25         but it says four at the top, but this is the first





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         1         page?

         2   A.    Right.

         3   Q.    So, starting on what says page four, the first page

         4         of this up at the top, it talks about we are trying

         5         to select, do you see that?

         6   A.    Is that the first paragraph?

         7   Q.    It says under Philosophy.

         8   A.    Okay.

         9   Q.    You see right here, "We are trying to select from

        10         the specially well credential pool of candidates

        11         those that show the most promise."

        12   A.    Yes.

        13   Q.    Is that why this is a tough thing to do?

        14   A.    Absolutely.  Making decisions on candidates,

        15         particularly at a school like Michigan, you have a

        16         pool of candidates that are very, very strong in

        17         almost every way.

        18   Q.    And the end of that same paragraph it says, rather,

        19         do you see that, "Rather we must begin with the

        20         numbers and go forward from there to scrutinize the

        21         essays and letters of recommendation."

        22   A.    Yes.

        23   Q.    "As well as considering extracurricular and work

        24         experience, to look for candidates that show

        25         intellectual talents, leadership ability and





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         1         academic acumen which augers for a lively

         2         intellectual educational community and important

         3         contributions to the profession."

         4                        Do you see that?

         5   A.    Yes.

         6   Q.    That's what you wanted everyone to be able to pick

         7         out when they did their job here?

         8   A.    Everyone that read files, that was the purpose, the

         9         mission of the endeavor.

        10   Q.    Go to the next page, page five.  You see the first

        11         full paragraph that says, given all this?

        12   A.    Yes.

        13   Q.    "I try to read each file with an open mind and try

        14         to find something that distinguishes the candidate

        15         and provide some reason to consider them

        16         affirmatively for admission."  Okay?

        17   A.    Yes.

        18   Q.    Is that how you went about doing it?

        19   A.    Yes.  Look, I would suspect that there are people

        20         who think the process is one where you always look

        21         for--first, look for a reason not to admit someone.

        22         I tend to want to think positively about each

        23         candidate, to try to find some reason to act in

        24         their favor.

        25   Q.    Okay.  If you go down to the bottom you'll see it





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         1         says the basic approach and it just list things?

         2   A.    Yes.

         3   Q.    Things that you look at, the LSAT, GPA,

         4         undergraduate institution, trends in grades?

         5   A.    Yes.

         6   Q.    And then it goes on to it says comparative rank.

         7         And then it says, "If the index shows a significant

         8         improvement from freshman/sophomore to junior/senior

         9         academic performance."

        10                        You see that?

        11   A.    Yes.

        12   Q.    What's index mean there?

        13   A.    Well, the index I think we heard a little bit about

        14         it earlier.

        15   Q.    Was this about the index score, because you don't

        16         have an index score for freshman/sophomore?

        17   A.    No, I'm basically talking about the trend in the

        18         grades there.  That if it's going upward, if it's

        19         going downward, if it's sort erratic, that kind of

        20         stuff.

        21   Q.    Let me sort of go to where you were just about to

        22         go.  The index score, which is some formula that

        23         relates LSAT, GPA with first year grades?

        24   A.    Yes.

        25   Q.    Do you use that in actually reviewing the individual





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         1         file?

         2   A.    No.

         3   Q.    Is it in the file?

         4   A.    No.

         5   Q.    Why won't you use it?

         6   A.    Well, there are better tools to assess that in each

         7         file, that you actually have to look at the academic

         8         record.  You have to look at the transcript, look at

         9         the law school data assembly report that gives you a

        10         wealth of information about each candidate in the

        11         undergraduate institution.  That kind of thing.

        12                        So, it's really not a particularly

        13         useful number to look at when you're assessing a

        14         file.

        15   Q.    Okay.  When Ms. Munzel testified, and she went over

        16         a file in some detail, and actually I was going to

        17         show you a file but now I'm not.

        18                        I just want to ask you, is that the

        19         way you were reviewing files and you trained people

        20         to review files what you saw her do?

        21   A.    Yes.

        22   Q.    This document the Gospel, it's written right after

        23         the policy went into effect in October of 1992?

        24   A.    Right.

        25   Q.    Did you ever revise it or this one just stayed?





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         1   A.    That was it.  I usually had other things to do, to

         2         sort of look back at this.

         3   Q.    Okay.  I have looked through the entire document in

         4         some detail, and there is no mention of race in here

         5         at all?

         6   A.    That's correct.

         7   Q.    Why not?

         8   A.    Because I think when you're reading a file, that's

         9         not the primary consideration as you're making

        10         judgments about it.  It's the things that I talk

        11         about in there.

        12   Q.    Okay.  Now, the admissions policy that we have all

        13         spent some time looking at, the 1992 policy.  That's

        14         a policy about all of the admissions, isn't it?

        15   A.    Right.

        16   Q.    And the Gospel is also a document about all

        17         admissions, isn't it?

        18   A.    Absolutely.

        19   Q.    And so you use the Gospel and the policy to guide

        20         you in making all admissions decisions, is that

        21         right?

        22   A.    That's absolutely right.

        23   Q.    Was there some minimum criteria for grades and test

        24         scores that you needed before you would read a file?

        25   A.    No.  Every file deserved to be read.  And so that's





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         1         what we did.

         2   Q.    Now, we also heard some testimony, I believe from

         3         Ms. Munzel, about a comment sheet that was filled

         4         out at the end of a file.  I think the second file

         5         she looked at she had someone else's comments, you

         6         remember that?

         7   A.    Yes.

         8   Q.    And she actually read off some of the information on

         9         the comment sheet, so we heard what kind of

        10         information was on there.

        11                        Did you keep comment sheets?

        12   A.    No.

        13   Q.    What happened to them?

        14   A.    I had them thrown away.

        15   Q.    When did you throw them away?

        16   A.    At the end of the admissions year, that was my

        17         instruction.  Whenever the files were going to leave

        18         our direct control for the admitted students that

        19         ended up matriculating, the file went down to the

        20         Registrar's Office.

        21                        And for those students who applied

        22         and either were denied or chose not to come, they

        23         went to a storage area.  And when they left our

        24         immediate control, those comment sheets were

        25         removed.





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         1   Q.    And thrown away?

         2   A.    Yes.

         3   Q.    Was that just a standard policy you had?

         4   A.    Yes.

         5   Q.    By the way, was it the same policy you had at Iowa?

         6   A.    Yes.

         7   Q.    Now, I think we have seen some numbers about the

         8         application flow that comes through the office, it's

         9         3000 to 4000, some number like that?

        10   A.    Yes.

        11   Q.    You're telling me that every year you and some small

        12         number of people on your staff read all three to

        13         4000 files?

        14   A.    Absolutely.

        15   Q.    And reviewed them to make judgments?

        16   A.    Absolutely.

        17   Q.    And how did you decide which factors made a

        18         difference, I mean there's a whole range of things

        19         that are in the policy and in your Gospel memo about

        20         things you ought to look at, how did you decide?

        21   A.    We had to sit down and read the whole file and make

        22         a judgment based on everything that you saw there.

        23         There was no one thing, you had to look at the

        24         transcripts, contemplate the test scores, think

        25         about the undergraduate institution, read the essays





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         1         that were there, read the letters of recommendation

         2         and arrive at an overall conclusion about an

         3         individual file.

         4   Q.    There's a lot of discretion that goes into this, is

         5         that right?

         6   A.    Yes, there is.

         7   Q.    Is that a good thing?

         8   A.    I think it is a good thing.  With the guidance that

         9         you have from the faculty of the law school, you're

        10         implementing what they want to do.

        11                        And it's important to look at the

        12         whole person in making a judgment about whether or

        13         not to admit them to law school.

        14   Q.    Now, how did you take race into account?  You're

        15         reading a file, how did you take race into account?

        16   A.    Well, you read the whole file.  It was one of

        17         several, a number of factors you might take into

        18         account.

        19                        Just as if you might take into

        20         account the trend in grades, the rigor of the

        21         curriculum.  There was no specific way that you took

        22         it into account.

        23   Q.    Would it be taken into account the same way in every

        24         minority, underrepresented minority applicant's

        25         file?





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                                                                   184




         1   A.    In every file.

         2   Q.    Would it be taken into account in the same way?

         3   A.    Not in the same way.  Look, the assessment of any

         4         individual file is never precisely the same way,

         5         there are a lot of different things that you're

         6         looking at.

         7                        And any one factor in there, for

         8         example, an especially remarkable essay may be

         9         dispositive in a particular case.

        10                        An exceptionally strong rigorous

        11         academic record may be dispositive in any given

        12         case.  It might be the thing that tips the balance.

        13                        A particularly strong LSAT score in

        14         some cases, might be the thing that tips the balance

        15         in favor of a candidate.

        16                        So, in any given file the weight that

        17         you might give to any particular aspect of it, would

        18         vary from other files.

        19   Q.    Now, as I understand it, from time to time you would

        20         have a conversation with the dean, whether that be

        21         Dean Bollinger or eventually Dean Lehman?

        22   A.    Yes.

        23   Q.    About how many Michigan residents you're looking

        24         for?

        25   A.    Yes.





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         1   Q.    Did you ever have a conversation with either one of

         2         them about how many underrepresented minorities you

         3         were looking for?

         4   A.    No.

         5   Q.    You ever have a conversation with him about what the

         6         range of underrepresented minorities were that you

         7         were looking for?

         8   A.    No.  Absolutely not.

         9   Q.    Was the manner in which race was taken into account

        10         different from the manner in which, let's say, the

        11         essays or leadership ability, or any of the other

        12         factors were taken into account?

        13   A.    Well, an individual file it may carry more weight in

        14         one file, it may carry less weight into another

        15         file.  And that was true about anything you might

        16         think about in the file.  In the grandest scheme of

        17         things, no, it wasn't treated any different.

        18   Q.    Okay.  Now, another of your responsibilities as dean

        19         and I think we have the impression that all you did

        20         everyday was sit down and read files.

        21                        I take it another of your

        22         responsibilities was to do all the things you have

        23         to do to recruit students to file the applicants in

        24         the first place, okay?

        25   A.    Absolutely.





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         1   Q.    What did you do to do that?

         2   A.    Well, if I can.  My job is to create an entering

         3         class every year.  And in order to do that, you have

         4         to have people apply, and you have to have good

         5         people apply.  And if you're interested in

         6         diversity, you have to have a diverse pool of people

         7         to select from.

         8                        And so we traveled extensively to

         9         college campuses, to law school recruitment fairs.

        10         I made contacts, maintained my contacts with the

        11         pre-law advisors on different campuses across the

        12         country and corresponded regularly with them.

        13                        We made it a point to visit a whole

        14         range of different types of institutions.  We did a

        15         lot of direct mail to students that we thought were

        16         competitive for admission.

        17                        Locally I established a Minority Law

        18         Day for freshmen and sophomores on the campus of the

        19         University of Michigan.

        20                        I regularly interacted with the

        21         pre-law advisors on Michigan's campuses and the

        22         various student organizations that were aimed at

        23         ultimately applying to law schools in the

        24         undergraduate pre-law call, that kind of things.

        25                        Maintained the same kind of contacts





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         1         with a number of other organizations on other

         2         campuses around the country.

         3   Q.    Now, were these things that, not all of them, but

         4         were some of these things, new things that you did,

         5         that as far as you know hadn't been done before to

         6         recruit students?

         7   A.    Absolutely.  I took as my charge when I arrived, to

         8         reenergize and to be innovative about the kinds of

         9         things that we did to attract candidates for

        10         admission.

        11   Q.    And did you do special things to try to recruit

        12         underrepresented minorities to apply to the law

        13         school?

        14   A.    Absolutely.

        15   Q.    What did you do?

        16   A.    We would visit colleges, universities where there

        17         was significant population, or where that was the

        18         particular mission, so to speak.  Historically black

        19         colleges, universities that had significant

        20         representations of Hispanics, Asian Americans.

        21                        Other campuses we made a point to go

        22         there, to find out who the undergraduate

        23         organizations were that we could work with, talk to,

        24         make presentations to.  That kind of thing.

        25   Q.    And were these new things?





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         1   A.    Yes.

         2   Q.    I'd like to show you some exhibits that were used

         3         with Ms. Munzel and that I used in my opening.  181,

         4         182, 183 and 184.

         5   A.    Okay.

         6                        MR. PAYTON:  While we're doing this,

         7         your Honor, I want to offer into evidence Exhibit 5,

         8         I believe, which is the Gospel According to dennis.

         9                        MR. PURDY:  No objection, your Honor.

        10                        THE COURT:  Received.

        11   BY MR. PAYTON:

        12   Q.    These are charts that show data from 1997, and they

        13         show all of the applicants and all of the admitted

        14         students.  And then separately they show it for

        15         underrepresented minorities admitted,

        16         underrepresented minorities rejected.  Majority

        17         students admitted, and majority students rejected.

        18                        You can put up any one.  Put up any

        19         one of the charts so I can just ask him

        20                        These are non-admitted majority

        21         applicants, do you see that, Mr. Shields?

        22   A.    Yes.

        23   Q.    There were some testimony about--actually it wasn't

        24         testimony, it was a representation by me about the

        25         fact that there are scores on the LSAT, non-standard





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         scores is how I referred to them, that show as zeros

         2         in the data that is reported by Law Services?

         3   A.    Right.

         4   Q.    Okay.  Was I right?

         5   A.    Absolutely.

         6   Q.    Could you explain what a non-standard score on the

         7         LSAT is?

         8   A.    Well, the law school admissions test is a

         9         standardized test.  That is it's supposedly everyone

        10         who takes it, takes it under the same conditions, et

        11         cetera, et cetera.

        12                        Well, in fact, there are some, not a

        13         whole lot, but there are some who take it under

        14         non-standard conditions.

        15                        Most often or probably the only way

        16         that that happens, is if they have some documented

        17         disability.  And when that happens they get more

        18         time, or they get different kind of test.

        19                        For example, someone who has a vision

        20         problem might actually have someone read the exam to

        21         them.  And because their taking it under nonstandard

        22         conditions, the scores reported on their LSAT

        23         report.

        24                        But in terms of the data since it's

        25         non-standard they get a zero when it comes done to





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                                                                   190




         1         accounting for statistics.

         2   Q.    Do you see this, for example, on this chart right

         3         here on the bottom axis which is zero, if you look

         4         to the right and across you see a number of, I call

         5         them hits, little points, those are zeros?

         6   A.    Right.

         7   Q.    Non-standard?

         8   A.    Test takers.

         9   Q.    Test takers who show on here as zeros because in the

        10         data frame they show a zero?

        11   A.    Right.

        12   Q.    And that's simply how Law Services deals with what

        13         you call the non-standard test?

        14   A.    Right.  For example, when you see an LSAT report, on

        15         most of the LSAT reports taken under standard

        16         conditions, you get a score and an identification of

        17         the percentile positioning of that score on the

        18         scale.

        19                        In the non-standard setting, you get

        20         a score but you get no percentage.  And that's why

        21         it shows up as a zero.

        22   Q.    Could you put on top of that, I don't know what this

        23         exhibit is, it's 182.  Can you put the companion

        24         which is the non-admitted minority on that.

        25                        Mr. Shields, you were the director of





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                                                                   191




         1         Admissions in 1997, is that correct?

         2   A.    Yes, I was.

         3   Q.    So this is data that relates to how you ran the

         4         office?

         5   A.    Absolutely.

         6   Q.    And do you see that when you look at the majority

         7         and the minority plots up there, they have some

         8         substantial overlap, those are my words.  But do you

         9         agree that they have substantial overlaps?

        10   A.    Yes, absolutely.

        11   Q.    And these were the students who did not get in?

        12   A.    Right.

        13   Q.    Are you surprised by that?

        14   A.    Not at all.

        15   Q.    Could you put up the other two.  And these are the

        16         admitted students, and if you pull them apart so he

        17         can see the difference underneath.

        18                        At the top now is the majority

        19         students who were admitted, and now placed on top of

        20         them right now are the minority students who were

        21         admitted.

        22                        The same scale, you see the overlap

        23         there?

        24   A.    Yes.

        25   Q.    Okay.  And that picture of what the class of





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         1         admitted students look like in 1997, does that

         2         surprise you in anyway?

         3   A.    Not at all.

         4   Q.    Did you admit, in your opinion, really good classes

         5         of students, minority and majority alike?

         6   A.    I'm very proud of the classes that I admitted to the

         7         University of Michigan Law School.

         8   Q.    Mr. Shields, I want to ask you about how you look

         9         back on what you accomplished at the University of

        10         Michigan Law School, with respect to this policy and

        11         its implementation.

        12                        What's your reflection on how this

        13         policy and your implementation work?

        14   A.    I think that the policy, I'm very proud of the role

        15         that I had in developing it, I'm very proud of the

        16         final policy.

        17                        I think my implementation of it and

        18         attempts to accomplish what the policy asked of me.

        19         I'm very proud of all of that.  I don't think anyone

        20         else could have done it better.

        21                        MR. PAYTON:  Thank you, your Honor.

        22                        THE COURT:  Intervenors, any

        23         questions?

        24                        MS. MASSIE:  None.

        25                        THE COURT:  Plaintiffs.





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                                                                   193




         1                        MR. PURDY:  Thank you, your Honor.

         2         Your Honor, Larry Purdy again for the Plaintiff.

         3                        THE COURT:  Mr. Purdy.

         4

         5                       CROSS-EXAMINATION

         6   BY MR. PURDY:

         7   Q.    Good afternoon, Dean Shields?

         8   A.    How you doing?

         9   Q.    Good.  Let me go through first, I've got a couple of

        10         questions that I want to try and get to just a

        11         little bit later, but let me try and walk through it

        12         if I could just briefly some of the testimony that

        13         you've given to us.

        14                        First, with regard to Exhibit 5 your

        15         Gospel According To Dennis Shields?

        16   A.    Yes.

        17   Q.    Would it be fair to say that this philosophy applies

        18         to every candidate regardless of his or her race

        19         ethnicity?

        20   A.    Yes.

        21   Q.    And do I assume that it was your intention to apply

        22         this philosophy equally to every applicant that came

        23         across your desk regardless of his or her race and

        24         ethnicity?

        25   A.    The purpose of the document was to give guidance to





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         people reading files for me.

         2   Q.    Sure.  And you didn't vary the way you approached

         3         any file depended upon the person's race or

         4         ethnicity, would that be a fair statement?

         5   A.    That's a fair statement.

         6   Q.    You know, there was a question from Mr. Payton about

         7         the index scores.  And I believe you said that index

         8         scores is not used in the review, do you recall

         9         that?

        10   A.    Yes.

        11   Q.    I believe I wrote it down and if I'm wrong correct

        12         me.  But I believe you said it's not useful number,

        13         do you recall that?

        14   A.    Yes.

        15   Q.    But, in fact, doesn't the policy itself talk about

        16         the importance of the index and the admissions

        17         process?

        18   A.    Well, that's a short hand term for looking at the

        19         law school admissions test score, and the

        20         undergraduate academic record.

        21                        And it's not useful because it

        22         doesn't give you very complete information.  For

        23         example, as we evaluate an academic record, the

        24         quality of the school that one attends, the rigor of

        25         the undergraduate curriculum that one has pursued,





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         is not in anyway captured in that index.

         2   Q.    Just out curiosity because there's been so much

         3         discussion about it, I actually went through the

         4         policy last night and counted the number of times

         5         where the word index appears.

         6                        Would it surprise you that the word

         7         index appears in the Admissions policy 20 times or

         8         more?

         9   A.    Not at all.  Not at all.

        10   Q.    And we have gone over this, Exhibit 5 it doesn't

        11         reference race at all, correct?

        12   A.    Correct.

        13   Q.    But the Admissions policy does?

        14   A.    Yes, it does.

        15   Q.    And, of course, you told us this afternoon that you

        16         were guided in your admissions decisions by the

        17         Gospel and the policy, correct?

        18   A.    Right.  Well, the Gospel was something that I wrote

        19         for the benefit of the people in my office that

        20         would be reading files and providing evaluations of

        21         those files, summaries of them with the files when I

        22         was ready to make a judgment on them.

        23   Q.    I appreciate the distinction.  I think what you're

        24         trying to tell us is actually you were guided in

        25         your decisions by the policy?





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1   A.    Yes.

         2   Q.    There was also a question from Mr. Payton about

         3         whether or not you periodically had discussions with

         4         Dean Bollinger and then subsequently Dean Lehman

         5         about the percentage of residents that the school

         6         may be seeking each year, you recall that?

         7   A.    Yes.

         8   Q.    And, of course, it's clear that every year you did

         9         have discussions trying to figure out where you

        10         wanted to be, in terms of resident matriculants

        11         within the class?

        12   A.    Right.

        13   Q.    And as I recall from looking at the documents, and

        14         again correct me if I'm wrong.  But I believe that

        15         it consistently felt a third of the class plus or

        16         minus were residents?

        17   A.    Well, it depends on what time frame you're talking

        18         about.  Because most of what we've been talking

        19         about was from 1995 forward.

        20   Q.    Let me back up.  From 1992 until you left in 1998,

        21         did the percentage of residents that the school

        22         sought to admit roughly fall in the one-third range?

        23   A.    Yes, give or take five percent probably either way.

        24   Q.    And the policy specifically mentions the preference

        25         that they want to consider for Michigan residents,





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         does it not?

         2   A.    Yes.

         3   Q.    In fact, it uses the language honoring the special

         4         claims of Michigan residents to a Michigan law

         5         school education, correct?

         6   A.    Yes.

         7   Q.    And, of course, that wasn't divided by race or

         8         ethnicity, it's all Michigan residents?

         9   A.    Right.

        10   Q.    And then Mr. Payton asked you whether or not you

        11         recalled any discussion with either Dean Bollinger

        12         or Dean Lehman about whether or not there was a

        13         target range for race and you told us there wasn't,

        14         correct?

        15   A.    Right.

        16   Q.    But you had--

        17   A.    (Interposing)  I didn't have any conversations with

        18         them about that.

        19   Q.    You didn't have any conversations.  But you were

        20         aware of discussions about certain percentages of

        21         certain underrepresented minority groups, were you

        22         not?

        23   A.    I'm not sure what you're referring to.  You mean in

        24         the creation of the policy?

        25   Q.    Yes, sir.





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1   A.    I'm familiar with those discussions.

         2   Q.    All right.  And, in fact, if I could ask you to turn

         3         to Exhibit 34.

         4   A.    Okay.

         5   Q.    Dean Shields, I am just going to ask you, when you

         6         were part of the faculty policy, I'm sorry, sure the

         7         policy that you were creating was the faculty

         8         Admissions policy.

         9                        Did you periodically get copies of

        10         the drafts and make your own comments?

        11   A.    I don't think I ever wrote comments.  I saw the

        12         drafts, but I generally--you have to understand what

        13         my falls are like.

        14                        I typically visit anywhere from 20 to

        15         30 different campuses, et cetera.  So the time I

        16         have to scratch down notes is rather limited.

        17                        So, usually I would try to come to

        18         the meetings having read it, and then react to what

        19         I had read.

        20   Q.    I appreciate that.  And, of course, we took your

        21         deposition, what, two years ago or something like

        22         that?

        23   A.    Yes.

        24   Q.    And you didn't recall having any drafts and we have

        25         not found any, so I'll tell you I'm not going to





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         spring a draft of yours.  Unlike counsel who sprung

         2         the Gospel of Dennis on you.

         3                        But if you look on page 13 of

         4         Exhibit 34, and this was an initial draft of the

         5         policy.  And while you're getting there, you do

         6         recall seeing various drafts of the policy as it was

         7         underway, correct?

         8   A.    Yes, I do recall.  I don't know if I saw this

         9         specific one marked up like this.

        10   Q.    Sure.  Let me just ask you to look at the bottom of

        11         the full paragraph on page 13, and I'm just going to

        12         read the last sentence real quickly.  In fact, I'll

        13         even paraphrase it.

        14                        It just notes in the past we have

        15         achieved the kinds of benefits that we associate

        16         with racial and ethnic diversity from classes in

        17         which the proportion of African American, Hispanic

        18         and Native Americans members has been between eleven

        19         percent and 17 percent of total enrollees."

        20                        Do you recall reading that from other

        21         drafts of the policy while you were serving on the

        22         committee?

        23   A.    You know, I don't know that I recall reading it.  I

        24         know that we talked about numbers in that process.

        25   Q.    All right.  And let me ask you to also turn to





                          GRUTTER -vs- BOLLINGER, ET AL
 
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         1         Exhibit 32, it should be just two exhibits in front

         2         of that, if you would, please.

         3   A.    Yes.

         4   Q.    And here is a memorandum from Professor Regan.  You

         5         know Professor Regan, do you not?

         6   A.    Yes, I do.

         7   Q.    And, in fact, this indicates that you got a copy of

         8         this particular memorandum, does it not?

         9   A.    Yes.

        10   Q.    Do you recall reading this memorandum back in this

        11         time frame?

        12   A.    I don't have a specific recollection, but I'm sure

        13         that I have no question about whether I saw it.

        14   Q.    And so you recall Professor Regan, at least

        15         reviewing at some point Professor Regan's comments

        16         about whether or not to leave numbers in or take

        17         them out of the policy?

        18   A.    Yes.

        19   Q.    And you recall Professor Regan's suggestion that for

        20         a variety of reasons, including candor, I incline to

        21         prefer to keep the numbers in and try to explain

        22         what they really signify, do you recall that?

        23   A.    Yes.

        24   Q.    So, you were, at least, aware of what the faculty's

        25         views were about the percentage of underrepresented





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         1         minorities, or at least the size of the class that

         2         they would like to attract each year?

         3                        MR. PAYTON:  You mean the committee?

         4                        MR. PURDY:  The committee, I'm sorry.

         5   BY MR. PURDY:

         6   Q.    The committee?

         7   A.    This was Professor Regan's view point at this point

         8         in time.  I wouldn't want to attribute any of his

         9         position to any other member of the committee,

        10         okay.

        11   Q.    I understand that the memo that we're looking at,

        12         Exhibit 32?

        13   A.    That's Don Regan's, Professor Regan's take on things

        14         at that point.

        15   Q.    He was commenting, was he not however, on the

        16         percentages that we see in Exhibit 34, the eleven to

        17         17 percent?

        18   A.    I guess, I don't know.

        19   Q.    Do you recall discussions in the faculty meetings

        20         that you attended about this policy where the

        21         numbers eleven to 17 percent was discussed?

        22   A.    Yes, I was a very active part of those discussions.

        23   Q.    Dean Shields, every year while you were at Michigan,

        24         you would receive numerous applications from various

        25         minorities who presented stellar academic





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         1         credentials, correct?

         2   A.    Yes.

         3   Q.    These were minority applicants who graduated from

         4         the same range of schools as did your white nation

         5         American applicant, would that be a fair statement?

         6   A.    There was a significant overlap in where the

         7         minority students went to school that applied, and

         8         where the majority students went to school that

         9         applied.

        10   Q.    Sure.  You would have minority students who came

        11         from schools from the Ivy League, and you would have

        12         some that came from school that I'm sure you knew to

        13         be outstanding small liberal arts schools?

        14   A.    Very few white candidates from historically black

        15         colleges.

        16   Q.    Any?

        17   A.    None that I know of.

        18   Q.    Okay.  And you would have those that came out of a

        19         lot of public institutions, and I'm talking about

        20         you have minority applicants with great credentials

        21         who came from public institutions like Michigan

        22         State and University of Michigan, correct?

        23   A.    Yes.

        24   Q.    Just like you would white students and African

        25         Americans?





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         1   A.    Sure.

         2   Q.    Minority students who followed the same tough

         3         curricula, took the same tough courses, that would

         4         have impressed you?

         5   A.    Sure.

         6   Q.    And if I may, I'm going to, if I could, I'm just

         7         going to put page 13 of the Policy which guided your

         8         work.  And if you can't read it, it's Exhibit 4.

         9   Q.    I'm not trying to embarrass you so suggest that you

        10         can't see over there.

        11   A.    Well, I tell you, you know, I'd hate to admit it,

        12         there's probably a day I could see it.

        13   Q.    It's page 13, and if I could just have you turn to

        14         that.  And certainly you would agree, would you not,

        15         Dean Shields, that there were people who were

        16         members of underrepresented minority groups who you

        17         would admit every year without reference, without

        18         reference to their minority status, correct?

        19   A.    There were some, yes.

        20   Q.    And, of course, we know that you told told us yield

        21         is a very tough problem with all applicants,

        22         particularly in the upper grid cells?

        23   A.    I would characterize that any applicant that's

        24         particularly remarkable presents a challenge in

        25         convincing them to come to Michigan as opposed to





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         1         other very fine law schools.

         2   Q.    That's interesting.  Why did you have that

         3         particular problem getting them to come to Michigan,

         4         as opposed to other schools where they would

         5         typically also be accepted?

         6                        THE COURT:  The weather.

         7   A.    Well, that was some of the problems.

         8   BY MR. PURDY:

         9   Q.    What were some of the problems Michigan faces in

        10         recruiting the same kids that get accepted, to say,

        11         Harvard or Yale or Chicago or UCLA or Berkley?

        12   A.    Those are all good options.  And for a whole--well,

        13         precisely for the reason I heard people think very

        14         carefully about where they attend law school.

        15                        The size of the law school, where

        16         it's located, what their long term career ambitions

        17         might be.  Each candidate makes sort of independent

        18         choices about how that matches up with where they

        19         want to go to school.

        20   Q.    Well, just so there's no misunderstanding.  Every

        21         year there--while you were here, we'll just confine

        22         it to the five years, was it about five year?

        23   A.    Six and a half years.

        24   Q.    Six and a half years, I'm sorry.  Every year while

        25         you were serving as the dean of Admissions in





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         1         Michigan, you had underrepresented minority

         2         applicants who you admitted who required no

         3         consideration of their race in order to obtain that

         4         admission, correct?

         5   A.    Yes.

         6   Q.    And, indeed, I assume it's a fair statement that if

         7         you could achieve the law school goal of enrolling a

         8         critical mass of these students from this group that

         9         didn't need any consideration of race, you'd happily

        10         do that, would you not?

        11   A.    I would admit anybody who I thought was a remarkable

        12         candidate.

        13   Q.    Sure.  And if you could achieve a critical mass of

        14         specifically underrepresented minority students

        15         without referring to race, that would be a wonderful

        16         achievement too, correct?

        17   A.    I hope that day comes.

        18   Q.    We do, we all do.  That's actually the ultimate goal

        19         of the policy, is it not, I mean that's what they

        20         talk about on page 13.  That hopefully that will be

        21         exhausted at some point?

        22   A.    There's a lot of other goals talked about in the

        23         policy, and I think that it's important to keep in

        24         mind that the Policy governs overall admissions.

        25         And the task that we were to undertake in that year





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   206




         1         was to rethink all of the admissions.

         2                        But one of the goals would be

         3         to--well, I don't think it would ever be a goal with

         4         this policy to not have a diverse class, okay.

         5                        If we ever get to the point where we

         6         can achieve that without any consideration of race,

         7         I think this country would be a happier place.

         8   Q.    But one of the goals in the policy and I won't pour

         9         through the blowups and try and find it, but you

        10         recall it no doubt.  I think it's a previous page

        11         twelve.

        12                        One of the goals is to enroll a

        13         critical mass of underrepresented minorities?

        14   A.    Critical mass is part of the goal, sure.

        15   Q.    Sure.  And in order to achieve that critical mass of

        16         minority students the practice was and the policy

        17         called for, a willingness to admit minority students

        18         from generally lower academic qualifications then

        19         majority students, isn't that a fair statement?

        20   A.    I think that's a fair statement.

        21   Q.    Do you have Exhibit 15, and if you don't have the

        22         book we'll get it for you.  Actually, you know,

        23         before I get to that and I apologize, but you've got

        24         the book.

        25                        Could you look at page ten, I'm





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         1         sorry, Exhibit 10 first, it's a daily report.

         2   A.    Yes.

         3   Q.    Just so it's clear, you would get these periodically

         4         during the admissions cycle, would you not, and this

         5         would help you determine where you were in terms of

         6         these offers that had been made, and where you sat

         7         in terms of admissions offers that had been accepted

         8         in terms of the possible things of that nature?

         9   A.    Yes.  Early in the season I might look at this, this

        10         is something I could just punch a button on my

        11         computer and it will crank this out in about 15

        12         minutes.

        13                        And in December I might get it once,

        14         in January I might get it two or three times.  And

        15         by the time you get to April and May when the

        16         deposits are rolling in, I may want to see it daily.

        17   Q.    I was going to say, I think I recall in your

        18         deposition you talked about that it's certainly your

        19         use of these types of reports increase from, let's

        20         say, early March until the end of May that your

        21         class was really starting to come together?

        22   A.    Right.

        23   Q.    And these reports were broken down by race so that

        24         you could tell where you sat in terms of the

        25         admissions from each end?





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                                                                   208




         1   A.    Well, they're broken down a number of different

         2         ways.

         3   Q.    Sure.

         4   A.    By race, gender, residency, non-residency, et

         5         cetera.

         6   Q.    My only point is you did have the ability and, in

         7         fact, took advantage of the ability to see how the

         8         class was shaping up as you went along?

         9   A.    Yes.

        10   Q.    And part of that was to see how the class was

        11         shaping up in terms of its racial and ethnic maybe

        12         up, correct?

        13   A.    Yes.

        14   Q.    Let me now ask you to turn to Exhibit 15, if I

        15         could, please, sir, that's where I was directing you

        16         initially.

        17   A.    Okay.

        18   Q.    You know actually let me ask you, I apologize, let

        19         me for a moment.

        20                        Do you have a view as you sit here

        21         today what percent of underrepresented minority

        22         students would constitute a critical mass?

        23   A.    No, not really.  You mean you're looking for a

        24         particular number or percentage?

        25   Q.    Even a rough percentage?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   209




         1   A.    Not really.

         2   Q.    Would five percent underrepresented minority

         3         students constitute a critical mass in your view, as

         4         an admissions expert?

         5   A.    I don't think so, I don't know though.  I mean part

         6         of that is not just my sort of assessment, the

         7         assessment of other people in the law school where

         8         I'm working.  That kind of thing.

         9   Q.    And I don't mean to--would ten percent constitute a

        10         critical mass?

        11   A.    It might, I don't know.  It could.

        12   Q.    Looking at Exhibit 15, and I believe this is in

        13         evidence.

        14                        THE COURT:  I think it is.

        15                        MR. PURDY:  If it's not, we'll offer

        16         it.

        17                        THE COURT:  I suspect it's in.

        18   BY MR. PURDY:

        19   Q.    This is a copy of a grid showing all of the

        20         applicants, of course, all of the LSAT and grade

        21         point ranges, do you recall seeing documents like

        22         this while you served at Michigan as the dean?

        23   A.    Yes.

        24   Q.    And you would use these reports each year kind of as

        25         a--to compare how your current class was shaping up





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   210




         1         in comparison to your last year class, is that the

         2         way you would use it?

         3   A.    No.

         4   Q.    How would you use this document?

         5   A.    I would look at this just to see what had happened

         6         in the proceeding year.  Probably--well this one--

         7   Q.    (Interposing)  This is 1995.  This was for the class

         8         that entered in the fall of 1995?

         9   A.    The fall and summer of '95.  I would typically look

        10         at this kind of stuff after that class had been put

        11         to bed, so to speak.  Early in the fall or later.

        12         And that would probably be about the only time I

        13         would look at this information.

        14   Q.    And, in fact, this is a class that you selected, so

        15         we're looking at decisions you made, correct?

        16   A.    Yes.

        17   Q.    If I could ask you to turn to the third page of this

        18         document, it's the grid that shows the--in fact,

        19         I'll just read it to.  It's page three of

        20         Exhibit 15, it's the University of Michigan Law

        21         School Admissions Office, admissions grid of LSAT

        22         and GPA for African Americans.

        23                        And I'm going to direct you down to

        24         the line that begins with grade point 3.2.  And

        25         we're just picking it because you've been through it





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   211




         1         before, so I thought it was the easiest.

         2                        3.25 through 2.49 and we'll start

         3         over under the LSAT score of 151 to 153, and you

         4         understood that to be about the 50th percentile?

         5   A.    Around that, I'm not sure exactly where it was for

         6         that year.  But about that.

         7   Q.    All right.  And it shows that in terms of just the

         8         African Americans and we're going to start with that

         9         and we're going to move up the scale on LSAT keeping

        10         the grade point constant.

        11                        But you had seven applicants and

        12         three were admitted, correct?

        13   A.    That's correct.

        14   Q.    The next, moving up to 154 to 155, five applicants

        15         four were admitted, correct?

        16   A.    Yes.

        17   Q.    And then moving on to the 156 to 158.  Ten

        18         applicants, ten admitted, correct?

        19   A.    Yes.

        20   Q.    159 to 160, three applicants, three admitted,

        21         correct?

        22   A.    Yes.

        23   Q.    And 161 to 163, four applicants four admitted,

        24         correct?

        25   A.    Yes.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   212




         1   Q.    And, in fact, if we go all the way across the scale

         2         goes up that all the applicants obviously were

         3         admitted.  Let's turn to the next page,

         4         Dean Shields, if we could.

         5                        And I want to direct you to the same

         6         line, and we're going to start with the same LSAT

         7         and GPA grid position.

         8                        MR. PURDY:  And for the record, your

         9         Honor, this is page four.  This is the admissions

        10         grid for Caucasian Americans.

        11   BY MR. PURDY:

        12   Q.    And you will see that under the 151 to 153 where we

        13         had seven African Americans, three admitted.  You

        14         have 24 Caucasian who applied, and zero admits,

        15         correct?

        16   A.    Yes.

        17   Q.    And moving to the next column where we had

        18         previously five African Americans applicants and

        19         four admits, we have 21 Caucasian applicants and

        20         again zero admits, correct?

        21   A.    Yes.

        22   Q.    Going up to the 156 to 158 where previously you had

        23         ten African Americans applicants, all ten admitted.

        24         Here there was 51 Caucasian Americans who applied

        25         and one was admitted, correct?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   213




         1   A.    Yes.

         2   Q.    And the next column where there were three out of

         3         three African Americans accepted, there was 61

         4         Caucasians who applied and one was admitted,

         5         correct?

         6   A.    That's correct.

         7   Q.    And going over to the next column, 126 Caucasian

         8         applicants, five admitted, do you see that?

         9   A.    Yes.

        10   Q.    Dean Shields, would it be fair to assume, is it

        11         accurate to assume, I'm not asking you about any of

        12         the final decisions you made within these grids, but

        13         the average, the difference that we see in terms of

        14         the decision making with respect to African

        15         Americans in these cells and Caucasians, can

        16         generally be explained by the extent to which race

        17         is taken in account in the admissions process, would

        18         that be a fair statement?

        19   A.    I'm not willing to go all the way there with you

        20         without reviewing the files or having the files to

        21         look at.  Because I couldn't be certain without

        22         seeing those files again.  But, at least, some of it

        23         could be attributed to that.

        24   Q.    Let me just ask you, do you have your deposition

        25         handy in front of you?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   214




         1   A.    Yes.

         2   Q.    If I could ask you just to turn to page 154, just

         3         for a moment?

         4   A.    That's in the thicker one?

         5   Q.    It's the thick one, yes, sir.  I'm going to direct

         6         your attention to line 15 and I'm just going to read

         7         two questions and two answers that were given to

         8         you.

         9                        This was back on December 7, 1998

        10         when my partner Mr. Kolbo who is sitting back there

        11         took your deposition.

        12   A.    Yes.

        13   Q.    And let me preface and I apologize.  You had just

        14         gone through the same analysis with the grids as we

        15         just went through?

        16   A.    Sure.

        17   Q.    Okay.

        18             "Q    Would it be fair to assume, is it accurate

        19                   to assume and I'm not asking you about any

        20                   individual's files here, but the average

        21                   here, the difference here in terms

        22                   of decision making with respect to African

        23                   Americans in these cells and Caucasians,

        24                   can generally be explained by the extent

        25                   to which race is taken into account in the





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   215




         1                   admissions process?

         2              A.    Generally, yes.

         3              Q.    There might be something else in a

         4                    particular applicant's file, but on a

         5                    whole that is the explanation?

         6              A.    Generally that's probably true."

         7                        Do you recall being asked those

         8         questions and giving those answers?

         9   A.    Well, they're here.

        10   Q.    But I mean those were your answers to those

        11         questions, correct?

        12   A.    Sure.

        13                        MR. PURDY:  Your Honor, I have

        14         nothing further.

        15                        THE COURT:  Mr. Payton.

        16                        MR. PURDY:  Thank you, very much.

        17

        18                      REDIRECT-EXAMINATION

        19   BY MR. PAYTON:

        20   Q.    Mr. Shields, Mr. Purdy asked you about drafts and

        21         memoranda about drafts of the 1992 policy, in which

        22         there was a reference to eleven to 17 percent.  And

        23         you said you remembered discussions about that.

        24                        Do you remember your position in

        25         those discussions about that?





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   216




         1   A.    Absolutely.

         2   Q.    What was it?

         3   A.    I thought it was entirely inappropriate for there to

         4         be numbers included because--and I said this during

         5         the deliberations.

         6                        If, in fact, we had a pool of

         7         candidates where we could not admit any specific

         8         number, then that's just the way it would be.

         9                        And that my job was to assure that we

        10         had a stronger pool of candidates, in part my job

        11         was to have a stronger pool of candidates available,

        12         and that we should not constrain ourselves.  It was

        13         fine to have an aspiration, but we should not

        14         constrain ourselves to that by that.

        15                        So, that if there were 50 percent

        16         minority in the class, that should not be looked at

        17         as some sort of violation of the policy.  Nor, if it

        18         was less than that, it should be considered some

        19         violation of the policy.

        20                        That, in fact, what we were trying to

        21         do is make individual decisions about individual

        22         candidates.

        23   Q.    Now, when you read a file, when you read a file when

        24         you were at the University of Michigan Law School

        25         and you're looking through a file, I understand





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   217




         1         there's no document that says a number.

         2                        But in your mind as you're going

         3         through the file, do you have in your head a number

         4         that you're trying to hit with respect to

         5         underrepresented minorities?

         6   A.    Absolutely not.  Absolutely not.  As I read a file,

         7         I'm making an independent judgment about that

         8         candidate.  And I may look back at the gross numbers

         9         at some point in time and think, well, we're doing

        10         pretty good here or we're not doing so well here to

        11         whatever.

        12                        But as you make a decision about

        13         individual files, you're not keeping in mind any

        14         sort of specific target.

        15   Q.    Okay.  Now, with respect to every single student you

        16         admitted at the University of Michigan Law School,

        17         and with respect to the overall classes that you

        18         admitted at the University of Michigan Law School,

        19         do you believe today that they were a very well

        20         qualified group of students individual by

        21         individual?

        22   A.    Absolutely.  Remarkable classes.

        23                        MR. PAYTON:  Thank you, your Honor.

        24                        MR. PURDY:  Just briefly, your Honor.

        25                        THE COURT:  Okay.





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   218




         1                      RECROSS-EXAMINATION

         2   BY MR. PURDY:

         3   Q.    Just very briefly to follow-up on what Mr. Payton

         4         said.

         5                        It was expressly set forth in the

         6         policy, was it not, that you no matter, what you

         7         would offer admission to no applicant who you didn't

         8         believe could succeed and complete the law school

         9         curriculum without serious academic problems,

        10         correct?

        11   A.    Right.

        12   Q.    And so if for whatever reason your applicant pool

        13         didn't present you with enough residents, for

        14         example, who you believe base on your review of the

        15         whole file could complete the course without serious

        16         academic problems, you weren't going to admit those

        17         kids, correct?

        18   A.    Right.

        19   Q.    Okay.  So, constrained by that, obviously you

        20         wouldn't be admitting kids, you wouldn't bring

        21         applicants in to the school who you didn't believe

        22         could complete the program, correct?

        23   A.    Right.

        24   Q.    All right.  At anytime, Dean Shields, during the six

        25         and a half years that you were there, did the





                          GRUTTER -vs- BOLLINGER, ET AL
 
                                                                   219




         1         underrepresented minority enrollment ever drop below

         2         eleven percent?

         3   A.    I'm not absolutely certain, but I don't think so.

         4                        MR. PURDY:  That's all I got your

         5         Honor.

         6                        THE COURT:  Thank you, Dean.

         7                             (Witness excused.)

         8                        THE COURT:  Who's your next witness?

         9                        MR. PAYTON:  This is all I have for

        10         today, as I said.  My next witness Monday looks like

        11         this.  We're calling Kent Syverud and we're going to

        12         call Dean Lehman.  Those our last two witnesses.

        13                        THE COURT:  Great.  We'll recess

        14         until Monday morning at nine.  We'll see you Monday

        15         morning at nine o'clock.

        16                             (Court adjourned at 3:50 p.m.)

        17

        18

        19

        20

        21

        22

        23

        24

        25





                          GRUTTER -vs- BOLLINGER, ET AL
 



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