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.
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BARBARA GRUTTER, for herself
and all others similarly
situated,
Civil Action
Plaintiff,
No. 97-CV-75928
-vs-
LEE BOLLINGER, JEFFREY LEHMAN,
DENNIS SHIELDS, and REGENTS OF
THE UNIVERSITY OF MICHIGAN,
Defendants,
and
KIMBERLY JAMES, ET AL.,
Intervening Defendants.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _/ VOLUME 5
BENCH TRIAL
BEFORE THE HONORABLE BERNARD A. FRIEDMAN
United States District Judge
238 U.S. Courthouse & Federal Building
231 Lafayette Boulevard West
Detroit, Michigan
MONDAY, JANUARY 22ND, 2001
APPEARANCES:
FOR PLAINTIFF: Kirk O. Kolbo, Esq.
R. Lawrence Purdy, Esq.
GRUTTER -vs- BOLLINGER, ET AL
2
1
2 APPEARANCES (CONTINUING)
3
FOR DEFENDANTS: John Payton, Esq.
4 Craig Goldblatt, Esq.
On behalf of Defendants
5 Bollinger, et al.
6
George B. Washington, Esq.
7 Miranda K. S. Massie, Esq.
On behalf of Intervening
8 Defendants
9
10 COURT REPORTER: Joan L. Morgan, CSR
Official Court Reporter
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14 Proceedings recorded by mechanical stenography.
Transcript produced by computer-assisted
15 transcription.
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GRUTTER -vs- BOLLINGER, ET AL
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1
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3 I N D E X
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WITNESS: Page
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WITNESSES PRESENTED ON BEHALF OF DEFENDANT
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KENT SYVERUD
8
Direct Examination by Mr. Kessler 7
9 Cross-Examination by Mr. Purdy 55
Redirect Examination by Mr. Kessler 80
10
JEFFREY LEHMAN
11
Direct Examination by Mr. Payton 88
12 Cross-Examination by Ms. Massie 156
Cross-Examination by Mr. Purdy 168
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16 E X H I B I T S
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18 MARKED RECEIVED
______ ________
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Exhibit Number 153-155 22
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GRUTTER -vs- BOLLINGER, ET AL
4
1 Detroit, Michigan
2 Monday, January 22, 2001
3 9:00 a.m.
4 _ _ _
5 (Court in session.)
6 THE COURT: You may be seated. Good
7 morning all.
8 MS. MASSIE: Good morning.
9 THE COURT: Good morning.
10 MS. MASSIE: Your Honor, I have got a
11 couple of scheduling things for you.
12 THE COURT: Good, I was going to talk
13 to you guys about scheduling.
14 MS. MASSIE: I have already talked to
15 both Mr. Kolbo and Mr. Payton about all of the
16 above, all of what follows, I should say.
17 THE COURT: Great.
18 MS. MASSIE: Tomorrow we're looking
19 at Gary Orfield and two students Agnes Aleobua and
20 Erika Dowdell. On Wednesday we're looking at
21 John Hope Franklin and Jay Rosner.
22 And, Judge, we have had a great deal
23 of difficulty with our out of town people setting up
24 a full day on Thursday.
25 THE COURT: You want to go Thursday
GRUTTER -vs- BOLLINGER, ET AL
5
1 off and start it when we get back?
2 MS. MASSIE: That would be great.
3 THE COURT: It's up to you guys. I
4 was going to ask you about Thursday, maybe breaking
5 a little bit early, you know, like 4:00. I mean
6 it's up to you.
7 I mean things are moving so nicely
8 and so forth. That's okay with everybody, we'll
9 take Thursday off and then we'll reconvene on I
10 think it's the 6th. Is that what it is?
11 MS. MASSIE: Yes, the 6th.
12 THE COURT: Good, no problem.
13 MS. MASSIE: Fantastic, thanks a lot.
14 THE COURT: Okay.
15 MS. MASSIE: Two other quick things.
16 First, we'll have the demonstrative exhibit which
17 will all be based on things that are already in the
18 record for Professor Orfield to both the Defendant
19 and the Plaintiff by later on today at some point.
20 And on tomorrow, this hasn't been put
21 on the record yet, but there's been some talk about
22 sequestering fact witnesses.
23 I would like to make some
24 designations for the organizations I represent, and
25 I also had a special request on behalf of one of the
GRUTTER -vs- BOLLINGER, ET AL
6
1 law students who would like to come. She probably
2 won't be called as a witness, she would like to
3 come.
4 I didn't have a chance to raise this
5 to counsel before you took the bench. Maybe we can
6 talk about it after the break.
7 But there's a fact witness who, I
8 think, will be called, or who could conceivably be
9 called who is not an organizational representative
10 and who would like to be able to attend the
11 proceedings tomorrow.
12 THE COURT: Why don't you talk about
13 it, I don't think that that would be a problem. I
14 don't think anybody should have any problems. The
15 fact witnesses here are such that--it's not like in
16 a criminal case where fact witnesses are subjected
17 to lots of other kind of things.
18 So talk about it. If there's any
19 difficulty, let me know. But I don't think there
20 should be a problem for any fact witness who really
21 wants to sit here.
22 But there may be a specific reason
23 why one counsel would note why they shouldn't. But
24 other than that, I don't think that's a problem.
25 MS. MASSIE: Thanks.
GRUTTER -vs- BOLLINGER, ET AL
7
1 MR. KESSLER: With that the law
2 school calls Kent Syverud as its next witness.
3 THE COURT: Good. It's good to see
4 what he looks like, we have spoke on the phone so
5 many times.
6 I have disclosed that I have sent you
7 many, not many, but a few cases to mediate for us
8 and what a great job you have done. But I don't
9 think we have ever really met.
10 KENT SYVERUD,
11 was thereupon called as a witness herein and, after
12 having been first duly sworn to tell the truth, the
13 whole truth and nothing but the truth, was examined
14 and testified as follows:
15 DIRECT EXAMINATION
16 BY MR. KESSLER:
17 Q. Good morning, Dean Syverud.
18 A. Good morning.
19 Q. Would you tell us your full name for the record,
20 please?
21 A. Kent Syverud.
22 Q. Where do you work?
23 A. I work at the Vanderbilt University Law School in
24 Nashville, Tennessee.
25 Q. And what position do you hold at Vanderbilt Law
GRUTTER -vs- BOLLINGER, ET AL
8
1 School?
2 A. I'm the dean of the law school and I am a professor
3 of law.
4 Q. What are your responsibilities as dean and as a
5 professor of law?
6 A. I teach courses, I teach civil procedure negotiation
7 and some other courses. I am the dean of the law
8 school, which means responsible for stewarding all
9 the administration of the school and the faculty.
10 And also have some responsibilities in the
11 university at large.
12 Q. Do you have responsibilities with law school alumni?
13 A. Yes.
14 Q. What are those, just very briefly?
15 A. Mostly responsible for relations with the alumni,
16 including fund raising and strategic planning for
17 the school.
18 Q. How many students does the Vanderbilt Law School
19 have?
20 A. 550.
21 Q. How many employees?
22 A. About 125.
23 Q. Are you involved in admissions to any degree?
24 A. The dean of Admissions report to me.
25 Q. Is it typical for a law school dean to carry the
GRUTTER -vs- BOLLINGER, ET AL
9
1 teaching load that you do?
2 A. Yes.
3 Q. And why have you chosen to do that?
4 A. Teaching is the most important thing I do and I
5 enjoy it.
6 Q. Why don't you tell us about your educational
7 background beginning with college?
8 A. I attended Georgetown University in Washington, D.C.
9 and graduated in 1977 with a degree in foreign
10 service from a foreign service school.
11 I then attended the University of
12 Michigan both for law school and for graduate school
13 in economics. I got my law degree at Michigan in
14 1981, and my graduate degree in economics and
15 master's degree in 1983.
16 Q. Were you on the Law Review at Michigan?
17 A. Yes, I was.
18 Q. What position did you have?
19 A. I was the entering chief.
20 Q. Did you earn any honors or awards while you were a
21 student at Michigan Law School?
22 A. Yes, I did.
23 Q. Tell us those, please?
24 A. I was chosen for the Henry M. Bates Award, which is
25 award for the outstanding graduate in the senior
GRUTTER -vs- BOLLINGER, ET AL
10
1 class. I won various awards in courses for having
2 the best performance in various courses.
3 Q. How does one earn the Henry M. Bates award?
4 A. I believe it's voted by the faculty.
5 Q. And did you graduate magnum cum laude for the
6 Michigan Law School as well?
7 A. I did.
8 Q. Now, you made reference to being in the graduate
9 school at Michigan in economics, tell us about that?
10 A. I was in the joint degree program in law and
11 economic at Michigan, and I finished my master's.
12 Started during law school, and finished it after I
13 graduated and emphasized public finance and
14 industrialization organization.
15 Q. Just to be clear, you then were working on a
16 master's degree in economics while you were in law
17 school?
18 A. Yes.
19 Q. Some would think of that as being at glutton for
20 punishment.
21 A. I enjoined it.
22 Q. Let's talk about your employment after you completed
23 your formal education. What did you do after you
24 graduated from Michigan and you earned your law
25 degree?
GRUTTER -vs- BOLLINGER, ET AL
11
1 A. I became a law clerk for Judge Overdorf in the
2 United States District Court for the District of
3 Columbia from '83 to '84.
4 And then I was a law clerk at the
5 Supreme Court of the United States for Justice
6 Sandra Day O'Connor.
7 And then I stayed home with my first
8 born child for a while, and then I started practice
9 at Wilmer, Cutler and Pickering in Washington, D.C.
10 for two years.
11 And in 1987, left Wilmer Cutler to
12 become a faculty member at Michigan Law School.
13 Q. What attracted you to teaching law?
14 A. After I graduated from law school and before I
15 graduated from graduate school, I worked as a legal
16 writing instructor for a year part-time at Michigan
17 and enjoyed it a great deal.
18 And I had professor at Michigan
19 Alan Smith who kept pestering me and telling me I
20 would be a better teacher than I was a lawyer.
21 Q. And he persuaded you that he was right?
22 A. He did.
23 Q. When you got to Michigan and started teaching, what
24 courses did you search over that ten year period?
25 A. I always taught civil procedure to first year
GRUTTER -vs- BOLLINGER, ET AL
12
1 students. I taught complex litigation. I taught
2 insurance law fairly consistently. I taught
3 negotiation in drafting.
4 And occasional short courses in
5 ethics, professional responsibility, judging law, in
6 fact, and different subjects each year.
7 Q. Did you hold any administrative positions at any of
8 the time that you were at the Michigan Law School?
9 A. Well, the last two years I was on the faculty of
10 Michigan, I was the associate dean for Academic
11 Affairs.
12 Q. What were your responsibilities as associate dean
13 for Academic Affairs?
14 A. They were whatever responsibilities were assigned by
15 the dean. It was essentially a position as chief
16 academic officer under the dean. And include some
17 responsibility for curriculum, some for teaching and
18 quality of teaching.
19 It included course assignments in
20 dealing with most problems that came up involving
21 faculty and students. Relations between faculty and
22 students.
23 Q. During that time did you have occasion to work with
24 new and even experienced teachers on the quality of
25 teaching?
GRUTTER -vs- BOLLINGER, ET AL
13
1 A. At the law school?
2 Q. Yes.
3 A. Yes. If there was a faculty member in trouble with
4 teaching for various reasons, I usually dealt with
5 it. And I was the law school's representative on
6 the board of the Center for Research Learning and
7 Teaching.
8 Q. Why were you willing to take on the administrative
9 position of assistant dean?
10 A. I cared about the school a lot, it paid more than a
11 regular faculty member got. And I figured given my
12 compulsiveness on some of the subjects involved in,
13 particularly the teaching side of Academic Affairs,
14 I would end up doing it whether I had the title or
15 not. So I wanted to do it.
16 Q. Now, you have told us that you have been employed
17 years ago at Wilmer, Cutler & Pickering, and that
18 you were ten years employed at the University of
19 Michigan Law School, do those prior associations
20 affect to any degree at all, your ability to offer
21 completely candid and honest testimony in this case?
22 A. I don't think so.
23 Q. Is there any doubt in your mind about that?
24 A. No.
25 Q. Why did you go on to Vanderbilt, why did you leave
GRUTTER -vs- BOLLINGER, ET AL
14
1 Michigan and go there?
2 A. I was offered the deanship at Vanderbilt and had not
3 planned on moving from Ann Arbor ever. It seemed
4 like an interesting opportunity for me and for my
5 whole family. And it's a smaller school and seemed
6 attractive for that reason.
7 Q. Have you taught at any law schools other than
8 Michigan and Vanderbilt?
9 A. Yes.
10 Q. Tell us about your other law school teaching?
11 A. I have taught as a visiting faculty member at the
12 University of Pennsylvania Law School in the spring
13 term of 1997, insurance law and negotiation in
14 drafting.
15 I have been a visiting professor at
16 the University of Tokyo Law School for the May term
17 in either 1992 or 1993.
18 I have taught most summers in the
19 last ten years at various universities and centers
20 in Germany.
21 Q. Now, how did you happen to do the teaching at Penn?
22 A. The dean of the Penn Law School called and I made a
23 visit.
24 Q. How did you wind up teaching at the University of
25 Tokyo?
GRUTTER -vs- BOLLINGER, ET AL
15
1 A. The Michigan Law School and the Tokyo faculty of law
2 and politics have an exchange relationship, whereby
3 professors go back and forth. And dean at Tokyo and
4 the dean at Michigan arranged that and asked me to
5 teach there one summer.
6 Q. And how did you happen to teach almost every summer
7 over the past ten years in Germany?
8 A. That is a program arranged by the German American
9 Bar Association in Germany and various universities
10 and a foundation in Germany.
11 And its always got a stronger
12 affiliation with a particular professor who is on
13 the Michigan faculty who asked me to come one of the
14 early years, and I went and taught American civil
15 process. And then they just asking me to come back.
16 Q. They liked what you did?
17 A. Yes.
18 Q. Have you ever received any awards for teaching law?
19 A. Yes.
20 Q. Tell us about those, if you would?
21 A. There's an award for teaching voted by the student
22 body at Michigan called the Al Hartwright
23 outstanding teacher award. That's named after
24 Al Hartwright who was a great tax teacher and
25 professor at Michigan, and I was awarded that twice
GRUTTER -vs- BOLLINGER, ET AL
16
1 while I was teaching at Michigan.
2 And in my first year at Vanderbilt,
3 built there's a similar award, the Paul Hartman
4 Award, outstanding teaching award that the student
5 body votes there. And I was awarded my first year
6 teaching at Vanderbilt.
7 Q. Have you published any articles on teaching law?
8 A. Yes.
9 Q. Tell us about that?
10 A. I have one article entitled Taking Students
11 Seriously, that's a guide for new law teachers that
12 is published in the Journal of Legal Education.
13 I have written an annotated
14 bibliography for law teachers that's been put out as
15 a pamphlet and its materials by the American
16 Association of Law Schools.
17 Q. What is contained in the bibliography?
18 A. It's an annotated survey of books and articles about
19 law school teaching back 50 to a hundred years, not
20 much back that far. But what the subject matter is
21 and commentary on it, and its helpfulness.
22 Q. And you made reference to the American Association
23 of Law Schools, just explain to Judge Friedman and
24 the rest of us what that is?
25 A. It's a professional association of law schools,
GRUTTER -vs- BOLLINGER, ET AL
17
1 about 180 American law schools. It's an
2 organization that organizes the annual conference of
3 law professors and that oversees professional
4 development programs for law professors.
5 Q. What does the standing of the American Association
6 of Law Schools say in the academic community
7 nationally?
8 A. To the extent there's an academic association for
9 law professors, it is the equivalent of the American
10 Economic Association for economists.
11 Q. Changing gears just a little bit. Have you served
12 as editor of any publications that deal with the
13 teaching of law?
14 A. Yes.
15 Q. What have you done?
16 A. I'm the editor of, co-editor with a colleague of the
17 Journal of Legal Education.
18 Q. And who publishes that?
19 A. That is the professional journal of the American
20 Association of Law Schools.
21 Q. About how many manuscripts do you have to read in a
22 year to do your work properly as editor?
23 A. About 200.
24 Q. Is it likely that there are many manuscripts that
25 are developed concerning the teaching of law that
GRUTTER -vs- BOLLINGER, ET AL
18
1 you wouldn't reach in the course of a year?
2 A. No. There would be very few.
3 Q. Have you made any presentations around the country
4 about how to teach law?
5 A. Yes.
6 Q. What have you done in that regard?
7 A. I for ten years almost every year, I taught at the
8 New Law Teachers Conference, which is an annual
9 conference for people entering the legal teaching
10 profession in various capacities.
11 Giving an opening address, closing
12 address, being a discussion leader or a lecturer. I
13 have taught experienced law teachers at the
14 occasional conferences that are held for experienced
15 law teachers explicitly on law teaching. Of which
16 there's another one coming this summer which I'm
17 speaking at.
18 And I have spoken, when requested, to
19 various law faculties and non-law faculties in the
20 United States.
21 Q. Tell us some the law faculties that you have
22 addressed?
23 A. I led the faculty retreat on law teaching at the
24 Notre Dame Law School, I think that was in 1998.
25 I've been asked by Wake Forest University Law School
GRUTTER -vs- BOLLINGER, ET AL
19
1 to lead their retreat and talk to them about law
2 teaching, in the future of law teaching next month.
3 I have spoken to the University of
4 South Dakota university faculty, including the law
5 faculty on teaching. I think that's all I can
6 recall.
7 Q. That's good. Are you working on a book?
8 A. Yes.
9 Q. What is the book?
10 A. Well, I'm working on two books. One is a guide book
11 for insurance defense counsel. And one is a book
12 entitled Teaching Across a Career.
13 Q. And what is the latter book about?
14 A. It's a book about the fact that most advice for
15 teachers is less helpful for the experienced
16 teachers, because it assumes that teaching is
17 something you learn once like riding a bicycle and
18 then you've got it and never need to change or grow.
19 Q. And you find that it isn't like learning to ride a
20 bicycle?
21 A. No, I don't find it like riding a bicycle.
22 Q. What is it like?
23 A. I teach civil procedure, it's like preparing for a
24 different summary judgment motion everyday in a
25 different area of substantive law.
GRUTTER -vs- BOLLINGER, ET AL
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1 Q. Well, that would be challenging?
2 A. Yes.
3 Q. Are you doing some work with the Carnegie Foundation
4 as we speak?
5 A. Yes.
6 Q. Would you tell us what you're doing with the
7 Carnegie gee foundation?
8 A. The Carnegie Foundation for the advancement of
9 teaching is a nonprofit organization in the United
10 States, that's the most rigorous in paying attention
11 to teaching methods and their improvements, and has
12 been that way for many years.
13 It has a project on teaching across
14 the professions, which at the moment is attempting
15 to identify the state of the art of teaching in
16 profession schools, law, medicine, business,
17 engineering and divinity.
18 And their first year of their study
19 last year was law schools. And I worked with the
20 professionals working on that study including Judith
21 Wagner in helping them identify a cross section of
22 American law schools to visit for a three day
23 periods each.
24 And they visited Vanderbilt as part
25 of that, and spent four days evaluating teaching at
GRUTTER -vs- BOLLINGER, ET AL
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1 Vanderbilt Law School.
2 Q. Is this project a result in a report?
3 A. Yes, it is.
4 Q. And when is that expected?
5 A. It was expected several months ago, it has not come
6 out yet. I'm not in charge or responsible for
7 writing the report.
8 Q. So the answer is anytime now?
9 A. Yes, any week now.
10 Q. Are you involved in something called the Advisory
11 Board for the Center of Teaching at Vanderbilt?
12 A. Yes.
13 Q. What is that?
14 A. Vanderbilt has an education school, Peabody's
15 College which is very good and separate from that.
16 But connected to it is a center for teaching which
17 focuses across the university on the quality of
18 teaching in the various schools of the university.
19 And it put on programs, professional
20 development programs for faculty at Vanderbilt and
21 graduate students. And it also addresses problems
22 of substandard performance and evaluation of
23 teaching.
24 Q. Now, you were asked to serve as an expert witness in
25 this case on behalf of the Michigan Law School, is
GRUTTER -vs- BOLLINGER, ET AL
22
1 that right?
2 A. In 1997, I think, yes.
3 Q. And did you prepare expert reports in connection
4 with your work?
5 A. Yes.
6 Q. I think you have documents that have been marked
7 Exhibits 153 through 155 right there in the witness
8 box, am I right about that?
9 A. Yes.
10 Q. Tell me what Exhibit 153 is?
11 A. It is the expert, the first expert report I wrote.
12 Q. And what date does it bear?
13 A. December 15, 1998.
14 Q. What is Exhibit 154?
15 A. It is the first supplemental expert report I wrote.
16 Q. What is the date of Exhibit 154?
17 A. February 25, 2000.
18 Q. And what is Exhibit 155?
19 A. It is the second supplemental expert report I wrote.
20 MR. KESSLER: Your Honor, we offer
21 all three exhibits at this time.
22 MR. PURDY: Your Honor, we would
23 object on relevance grounds.
24 THE COURT: You've got to speak up,
25 Mr. Purdy.
GRUTTER -vs- BOLLINGER, ET AL
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1 MR. PURDY: I apologize. We will
2 object on relevance ground for the reasons we set
3 forth in our earlier motion. Which we believe are
4 directed precisely on the issue of diversity, which
5 is not a factual issue before the court. We object
6 on relevance.
7 MR. KESSLER: Well, our position is
8 just the same, your Honor, as we will develop this
9 morning. These reports concern the issue of
10 critical mass in particular, which has been a
11 subject of constant inquiry by the Plaintiff
12 throughout the trial, and an issue of constant
13 inquiry by the law school.
14 THE COURT: Well, we call the dean,
15 we had some discussion and the defense had indicated
16 they were not calling him as expert, or as the
17 witness in the issue of diversity and that's why
18 we're here today.
19 I'll admit them for the same reason I
20 have admitted a lot of other things. First of all,
21 I have read them all because they have all been
22 attached to the motions for summary judgment in this
23 matter, so there's no secret what they have to say.
24 The relevance, I think that much of
25 it is not relevant to the issues that we're trying
GRUTTER -vs- BOLLINGER, ET AL
24
1 here today. But it's just as easy to admit them and
2 give them weight if they need some.
3 MR. KESSLER: Thank you.
4 BY MR. KESSLER:
5 Q. Are you being compensated for your services as an
6 expert in the case?
7 A. I am being reimbursed for my expenses of coming out
8 here.
9 Q. Are you being paid a fee?
10 A. No.
11 Q. Have you testified as an expert in any other cases?
12 A. Yes, I have.
13 Q. Just generally, what have you been involved in?
14 A. All of them have been insurance cases, mostly
15 insurance coverage cases. Particularly concerning
16 insurance coverage of various tort liabilities.
17 Q. And about how many times have you testified as an
18 expert?
19 A. I think I have been deposed eight times to ten times
20 in fourteen years of teaching. And I testified in
21 court three or four times.
22 Q. Now, Judge Friedman has made reference to this
23 previously and again this morning.
24 Have you served as a court appointed
25 expert in the past?
GRUTTER -vs- BOLLINGER, ET AL
25
1 A. Yes, I have.
2 Q. Tell us what you have done, just in a general way?
3 A. In Tennessee I have been appointed as a mediator in
4 insurance coverage disputes. In Michigan I have
5 been appointed, including in this court, to--I'm not
6 sure if it's as a mediator or court appointed
7 expert, to attempt to reach settlement of insurance
8 dispute and reinsurance disputes between insurance
9 companies and insurers.
10 Q. Insurance law is one of your substantive areas of
11 expertise?
12 A. Yes, it is.
13 Q. What is the subject of your original expert report
14 in this case?
15 A. It was prepared two years ago and it was on the
16 effect of having meaningful numbers of minority
17 students on the quality of the pedagogy in the law
18 school.
19 Q. What was your general conclusion?
20 A. As the last paragraph of the report says it was--my
21 general conclusion is, still is my conclusion is
22 that a law school without significant representation
23 of minority students in the student body, will
24 provide a significantly poorer education than one
25 that is blessed by such representation.
GRUTTER -vs- BOLLINGER, ET AL
26
1 And that in particular lawyers
2 trained in racially homogeneous law schools will be
3 ill equipped to serve the functions that the best
4 lawyers have to serve in society.
5 MR. PURDY: Excuse me, your Honor, I
6 don't want to stand up and be interrupted, but may I
7 just have a standing objection to any testimony that
8 relates to the benefits of diversity.
9 Because as we said, we're not
10 contesting that issue, and I believe what he just
11 recited is precisely on that subject.
12 THE COURT: You have a standing
13 objection. And, Mr. Kessler, I'm going to give you
14 some leeway because I think it's necessary, but try
15 to stick to the issues.
16 MR. KESSLER: I appreciate that.
17 What is going to be developed here is that--
18 THE COURT: That's fine. I'm going
19 to give you some leeway.
20 MR. KESSLER: Fine, okay.
21 BY MR. KESSLER:
22 Q. The first supplemental report, what was that about?
23 A. That was the one a year ago, it was about--there was
24 empirical research that occurred subsequent to my
25 first report on faculty and student views on the
GRUTTER -vs- BOLLINGER, ET AL
27
1 effect of significant numbers of minority students
2 in the law school classroom. And it was how that
3 new research effected my earlier opinions.
4 Q. And how did it effect your earlier opinion?
5 A. It confirmed some of them.
6 Q. What about the second supplemental report, the one
7 that you prepared and we filed recently, what was
8 that about?
9 A. That was in the last two weeks, and that was you
10 provided me the Raudenbush study which was much more
11 specifically concerned with the admissions policies
12 at the University of Michigan Law School, and the
13 effect of those policies on racial composition of
14 the class in various settings.
15 And the supplemental report is how
16 that would have effected or did effect my original
17 opinions.
18 Q. What was the overall conclusion that you reached in
19 this second supplemental report?
20 A. I concluded that the positive effects of a racially
21 heterogeneous class that I described in any original
22 report, would be achieved under the existing
23 admissions policy at the University of Michigan, and
24 would be unlikely to be achieved under an admissions
25 policy that did not consider race as a factor in
GRUTTER -vs- BOLLINGER, ET AL
28
1 admissions.
2 Q. Let's talk now about the basis of your overall
3 opinions. Tell us what those basis are?
4 A. Well, I have taught law for fourteen years every
5 semester pretty much in various settings. And when
6 I say various settings, I mean not just in different
7 countries or different law schools, but in settings
8 that are small classes, very large classes, classes
9 that are racially heterogenous. Classes that are
10 not diverse in other senses.
11 With no old people, for example, or
12 older people. Or classes with all people of one
13 ethnic background, particularly in Germany.
14 And I have talked to many of the law
15 professors over the years about how the diversity in
16 the class effects the dynamic in the Socratic
17 classroom and in the classroom teaching in the skill
18 setting, particularly negotiation.
19 And as I said, I have pretty much
20 read everything that's been written on law teaching
21 in the last 50 to a hundred years.
22 And so my opinions are based on
23 everything that I have done and everything that I
24 have read having to do with the law classroom.
25 Q. Are your opinions also based on part in law classes
GRUTTER -vs- BOLLINGER, ET AL
29
1 that you have observed, but not yourself taught?
2 A. Yes.
3 Q. How has that come about?
4 A. I have watched a lot of law classes taught, most
5 recently as an accreditor of law schools. And part
6 of the accreditation process includes a visit to the
7 school and an obligation to attend a cross section
8 of classes being taught in the school.
9 And so in the last year I've done the
10 accreditation visits for the University of Oregon
11 Law School, and the George Washington University Law
12 School. And in each school attended a large number
13 of classes across the curriculum.
14 Q. I have attended a lot of classes that's part of the
15 peer review or the tenure review process, or renewal
16 process for faculty at each of the institutions I
17 have taught at, and including when I was at the
18 University of Pennsylvania as a visitor.
19 And occasionally when I'm giving a
20 paper or talking in other law schools, I attend
21 classes as part of that.
22 Q. Do you have a reliable estimate of the number of
23 students that you have taught in the last 14 years?
24 A. Yes.
25 Q. Tell us what that is?
GRUTTER -vs- BOLLINGER, ET AL
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1 A. I have taught about 2500 students, law students in
2 the United States. And another 500 in Germany.
3 Q. Now, you indicated that you have been involved in
4 classes both as a teacher and as an observer that
5 had various levels of, not only general diversity,
6 but racial and ethnic diversity, is that right?
7 A. Yes.
8 Q. You have taught classes where there have been
9 virtually no minority students?
10 A. I've taught students in which there are no minority
11 students.
12 Q. And where there have been very limited numbers of
13 minority students?
14 A. Yes.
15 Q. And also where, in your judgment, there have been
16 meaningful numbers of minority students, is that
17 right?
18 A. Yes.
19 Q. And these differing diversity levels have, at least,
20 in times involved teaching the same subject matter,
21 is that right?
22 A. That's correct.
23 Q. What has the subject matter been?
24 A. Civil procedure, insurance and negotiation.
25 MR. KESSLER: Your Honor, at this
GRUTTER -vs- BOLLINGER, ET AL
31
1 time we offer Dean Syverud as an expert on legal
2 education.
3 MR. PURDY: Your Honor, we have no
4 objection and do not doubt Dean Syverud's expertise
5 on legal education.
6 But I think just from what we have
7 heard, again, this is going to a subject that
8 everything we've heard this morning, going to a
9 subject that has nothing to do with the issue that's
10 before this court.
11 THE COURT: It appears that's
12 correct, Mr. Kessler. And again, I certainly
13 believe that he's an expert in that area, but I'm
14 not sure what relevance that area has. But I'll
15 give it a little--
16 MR. KESSLER: (Interposing) We're
17 getting right to the heart of it.
18 THE COURT: Get right to the heart of
19 it.
20 MR. KESSLER: This is background that
21 I think the Court needed--
22 THE COURT: (Interposing) Diversity
23 isn't the issue here.
24 MR. KESSLER: Right.
25
GRUTTER -vs- BOLLINGER, ET AL
32
1 BY MR. KESSLER:
2 Q. We're going to talk now about critical mass,
3 Dean Syverud, and in that context I want to read to
4 you from Exhibit 4. Exhibit 4 is the 1992 Michigan
5 Law School policy that is being challenged here.
6 At the bottom of page nine of that
7 policy of Exhibit 4, it reads, "The second sort of
8 justification for admitting students with indices
9 relatively far from the upper right-hand corner, is
10 that this may help achieve that diversity which has
11 the potential to enrich everyone's education and
12 thus make a law school stronger than the sum of its
13 parts.
14 In particular we seek to admit
15 students with distinctive prospectives and
16 experiences, as well as students who are
17 particularly likely to assume the kinds of
18 leadership roles in the bar, and make the kinds of
19 contributions to society discussed in the
20 introduction of this report.
21 We reiterate, however, that no
22 student should be admitted unless his or her file as
23 a whole leads us to expect him or her to do well
24 enough to graduate without serious academic
25 problems."
GRUTTER -vs- BOLLINGER, ET AL
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1 And then on page twelve of Exhibit 4
2 continuing with the quote. "There is, however, a
3 commitment to one particular type of diversity that
4 the law school has long had and which should
5 continues.
6 This is a commitment to racial and
7 ethnic diversity with special reference to the
8 inclusion of students from groups which have been
9 historically discriminated against like African
10 Americans, Hispanics and Native Americans, who
11 without this commitment might not be represented in
12 our student body in meaningful numbers.
13 These students are particularly
14 likely to have experiences and prospectives of
15 special importance to our mission.
16 Over the past two decades, the law
17 school has made special efforts to increase the
18 numbers of such students in the school.
19 We believe that the racial and ethnic
20 diversity that has resulted as made the University
21 of Michigan Law School a better law school than it
22 could possibly have been otherwise.
23 By enrolling a "critical mass" of
24 minority students, we have ensured their ability to
25 make unique contributions to the character of the
GRUTTER -vs- BOLLINGER, ET AL
34
1 law school, the policies embodied in this document
2 should ensure that those contributions continue in
3 the future."
4 Do you see that language?
5 A. Yes.
6 Q. Were you on the University of Michigan Law School
7 faculty when this policy was adopted in 1992?
8 A. Yes.
9 Q. Did you vote on whether or not the policy should be
10 adopted?
11 A. Yes.
12 Q. How did you vote?
13 A. I voted for it.
14 Q. Did you believe that you understood the policy when
15 it was adopted in 1992?
16 A. Yes.
17 Q. What was your general understanding of the term
18 critical mass as used in the policy?
19 A. My general understanding was it meant that there
20 would be meaningful numbers of minority students,
21 and particularly African American and Hispanic
22 students, so as to achieve pedagogical objectives in
23 the classroom.
24 Q. Now, I understand, and we're not going to dwell on
25 this, that initially prior to this policy at least,
GRUTTER -vs- BOLLINGER, ET AL
35
1 you were skeptical about admissions policies like
2 Michigan's that considered race.
3 Did the inclusion of the reference to
4 critical mass in the 1992 policy help you change
5 your view?
6 A. Yes.
7 Q. Tell us in what way critical mass effected you're
8 thinking?
9 A. I mean I have to say that I didn't understand the
10 word critical mass to have a huge significance
11 separate from its reference, the back reference to
12 meaningful numbers in the paragraph above.
13 And it meant to me, and still means
14 to me, that something different than attempting
15 through social engineering to change society, which
16 was not a reason for me to support or believe in
17 this document.
18 It meant, instead, a direct
19 relationship for me to what happens in the law
20 school classroom, and whether I can make the law
21 school classroom work as best as it can.
22 And critical mass for me, or
23 meaningful numbers means that the dynamic in the law
24 school classroom is different depending on the
25 degree to which there are meaningful numbers of
GRUTTER -vs- BOLLINGER, ET AL
36
1 minority students in the classes I teach.
2 Q. Do some of the conclusions that you have rendered as
3 an expert in this case, bear on the critical mass
4 question?
5 A. Some do.
6 Q. All right. Tell us just in a general way what those
7 conclusions are?
8 A. I mean my original report was prepared when--I
9 gather the issues in this case were different, and I
10 gather they have been narrowed and I haven't been
11 following all the legal developments in the case
12 closely, I apologize.
13 Q. Understood.
14 A. It's not covered extensively in Nashville, I'm happy
15 to say. So, you have told me a little bit in the
16 last 24 hours about what the issues in the case are
17 now.
18 And again, I would say that the
19 quoted critical mass phrase in the policy meant
20 little different to me at the time, than talking
21 about meaningful numbers of minority students in
22 various classroom settings that I teach in.
23 The critical mass or meaningful
24 numbers matters to my conclusion in this sense. I
25 teach and still teach in a very traditional Socratic
GRUTTER -vs- BOLLINGER, ET AL
37
1 fashion, which involves I take the seating chart in
2 the class, I throw paper clips on it in front of the
3 students and I call on the students that the paper
4 clips fall on.
5 And I engage in a series of questions
6 and answers with the student, four to five students
7 most classes, based on the material assigned for
8 that day.
9 And my purpose in doing that is to
10 get a dialogue going in which the students question
11 deeply their assumptions and provoke other students
12 to see how many different angles there are in any
13 question that we address.
14 And the critical mass or meaningful
15 numbers issue is relevant to my conclusions, because
16 in my experience that dynamic is different within
17 the class among the students and between me and the
18 students, when the class is homogeneous.
19 When the class has a token minority
20 student or a token black student or to token
21 Hispanic student, and when there are enough minority
22 students, enough black students and enough Hispanic
23 students that there is a diversity of views and
24 experiences among the minority students, and among
25 the Hispanic and black students.
GRUTTER -vs- BOLLINGER, ET AL
38
1 So, that everybody in the class
2 starts looking at people as individuals in their
3 views and experiences, instead of as races.
4 Q. Now, we're offering you today in large part to help
5 us all understand the concept of critical mass, and
6 yet I note that none of your reports uses that term,
7 why not?
8 A. I read this policy again for the first time in two
9 years yesterday.
10 Q. The law school policy?
11 A. The law school policy. And I hadn't until yesterday
12 viewed critical mass as having some meaning
13 independent of what I have just described.
14 As meaningful numbers of minority
15 students in the actual classroom settings that you
16 teach in.
17 Q. Were you writing about the concept of critical mass
18 in your reports?
19 A. In the sense I have described today as which--I mean
20 in the sense I have describe it in, are there enough
21 minority students in my class that they become
22 individuals rather than representatives of races in
23 the dialogue among students and with me.
24 Q. In your experience as an expert in legal education
25 in the various settings that you have described, do
GRUTTER -vs- BOLLINGER, ET AL
39
1 you think that you can quantify in a specific way
2 what critical mass is?
3 A. No.
4 Q. Why not?
5 A. When you say critical mass or meaningful numbers of
6 minority students, what the meaningful part is to me
7 is, are there enough students say, for example,
8 African American students in a class such that each
9 of them, in fact, is and, in fact, acts freely to
10 express a diversity of views.
11 And to respond openly to the
12 questions I give, which are quite tense and
13 provocative at times.
14 And that number isn't the same number
15 or percentage in every class that I teach, it
16 depends in part on the individuals.
17 I have a class where an
18 individual--where it's enough to have one student,
19 because that one student is an extraordinary person,
20 but not many.
21 Q. If you can't quantify the term critical mass in a
22 reliable way, how do you know it when you have it?
23 A. I know when a class is working very well and when
24 it's flat from a lot of experience. And in my
25 experience law professors talk about precisely that,
GRUTTER -vs- BOLLINGER, ET AL
40
1 year to year and class to class as things go on.
2 I know I have a critical mass of
3 students when in the dialogue I have with students
4 and they have with each other in the course of civil
5 procedure or negotiation or whatever I'm teaching,
6 over the course of the semester regardless of what
7 the issue is, people are speaking and reacting as
8 individuals. And often in very unexpected ways.
9 And it's just my experience that in a
10 class with one or two African American students,
11 that usually does not happen.
12 Instead usually, and again, it's my
13 experience, usually the African American students
14 are silent. Not that they never say anything when I
15 call on them, but they on numerous issues it's hard
16 because they don't want to be a spokes person for
17 their race. And in particular in some of the issues
18 I teach.
19 Q. If I'm understanding you correctly, you define
20 critical mass by the presence of certain dynamics
21 that you have seen as a law school professor, is
22 that fair?
23 A. Yes.
24 Q. Let's see if we can understand a little more clearly
25 what those dynamics are. You talk about students
GRUTTER -vs- BOLLINGER, ET AL
41
1 feeling, at least, able to express themselves as
2 individuals, is that right?
3 A. Yes.
4 Q. Where critical mass is not present and there are
5 minorities present in the class, what tends to
6 happen if they're not silent?
7 A. Well, one or two things happens. One thing that
8 happens occasionally is that an African American or
9 a Hispanic student will express views on issues
10 raised by the facts of the cases that I'm teaching
11 that tend to be politically correct, expected views.
12 And it doesn't accomplish--when I'm
13 teaching particularly first year students, what I'm
14 trying to teach them is that they don't know what
15 people think in advance without asking and
16 listening.
17 Because law students are terrible
18 listeners and they are very bad at projecting onto
19 someone views and experiences and knowledge without
20 first finding out.
21 And I'm trying to teach particularly
22 litigators to listen first. And so it's a problem
23 when I want to provoke through my questioning,
24 students to see how every issue I'm teaching has
25 different points of view, and there are very strong
GRUTTER -vs- BOLLINGER, ET AL
42
1 arguments and currently often unexpected arguments.
2 And that people from different
3 backgrounds will come to the same fact settings and
4 have very unexpectedly different points of view on
5 it. And so that requires quite a bit of probing and
6 pushing of individual students.
7 If I have a token African American
8 student who is by the dynamic of the classroom
9 articulating what is perceived as what that person
10 is supposed to say on a particular issue, it doesn't
11 help with that lesson.
12 I'd like to get a diversity of views,
13 naturally by randomly calling on people among all
14 the students in the class, so that the lesson is
15 thought that people are individuals.
16 And the token minority student
17 problem for reasons I confess I don't fully
18 understand, doesn't produce that.
19 Q. How does the presence of critical mass or its
20 absence in the presence of tokenism impact the
21 majority students in the class, that is the
22 Caucasian students?
23 A. Well, as I said in my report, I think they get a
24 much poorer education as a result.
25 Q. Why?
GRUTTER -vs- BOLLINGER, ET AL
43
1 A. Because they often--I mean my majority students,
2 when white students have a vast range of
3 experiences. And when I call on my white students,
4 that lesson is often inevitable that they'll get
5 over the course of a semester's experience with the
6 white students.
7 Because my white students are always
8 diversed, there's many of them and they have many
9 experiences. And I have interesting and tough cases
10 that I'm teaching on, so the lesson is obvious to
11 them not to make assumptions they know everything
12 about every white student in the class by the fact
13 that they're white.
14 They don't learn that lesson
15 necessarily about other minority students, if there
16 isn't a range of minority students present.
17 Q. In your experience, is there's a relationship in the
18 classroom between having a critical mass of minority
19 students, and superficial thinking on the students
20 part, I mean?
21 A. On some questions, yes.
22 Q. Explain that?
23 A. Well, there are issues having to done with race in
24 all of my courses, they're usually more subtle and
25 most colleagues I talk with think or express.
GRUTTER -vs- BOLLINGER, ET AL
44
1 They come up with unexpected ways in
2 all the courses I teach, and race is an issue in
3 American law and kind of suffuses lots of things, to
4 much I think. But it's there and I have to teach it
5 the way it is.
6 It is still to teach cases where race
7 is an issue in the case, which it often is,
8 including in insurance law. And have everybody
9 talking about the issue as if they're Margaret Meade
10 studying the Samoans.
11 I don't know how else to describe
12 than that. Everybody is trying to project onto this
13 other group of people who aren't there.
14 Q. In a way that has an unreality to it, is that what
15 you're suggesting?
16 A. Yes.
17 Q. Is there a reason, you made reference a number of
18 times to the Socratic method and your use of the
19 Socratic method in classes.
20 Is there a reason why having a
21 critical mass is especially significant in
22 connection with the Socratic method?
23 A. Yes.
24 Q. Explain that, if you would?
25 A. I mean there's a lot of lawyers present, the point
GRUTTER -vs- BOLLINGER, ET AL
45
1 of the Socratic method is that the students learn as
2 much from each other as they do from the teacher.
3 And from the dialectic of watching
4 how the students respond to questions and
5 interacting--they learn from each other answers as
6 much as from the questions the professor ask, or
7 lectures from the professor.
8 And so the strength of the Socratic
9 method in part trends on active preparation and
10 engagement involvement in the students in the class.
11 And the quality of their answers is
12 often a function of the range of knowledge and
13 experience and background that the students bring to
14 bear in answering those questions.
15 And one relevant set of experiences
16 is related to race. It's not the only relevant set
17 of experiences that I value in a Socratic classroom,
18 but it is one.
19 Q. You have been discussing critical mass in the
20 context of particular dynamics that you see in the
21 classroom, and you don't see those dynamics when
22 it's not there.
23 Can you give us just one example of
24 what you have seen that would be a very positive
25 indicator that critical mass is present, versus what
GRUTTER -vs- BOLLINGER, ET AL
46
1 you would have seen had it been absent?
2 A. Yes. And we discussed this yesterday. I taught
3 insurance law most years at Michigan, and for many
4 years I taught insurance law, including a couple of
5 years, to extremely homogeneous classes racially.
6 And taught in particular an issue in
7 law and economics that concerns whether a tort law
8 should provide damages for pain and suffering in the
9 context of the death of a child when the parents are
10 suing.
11 And there's a decent literature on
12 that question from economists in law and economics
13 that not only suggest that that should not be the
14 case, because parents don't choose of their own
15 volition to go out and by life insurance on their
16 children.
17 In hence, since in private markets
18 they don't choose to do that. It would be odd for
19 the legal system to provide it mandatorily in a pain
20 and suffering context.
21 And I taught that literature as part
22 of a discussion day in insurance law for several
23 years.
24 And then one year I taught the same
25 body of reading, and I had an African American woman
GRUTTER -vs- BOLLINGER, ET AL
47
1 in my class, and that was a year that I had a what
2 we've been calling a critical mass of African
3 American students in my class, five I think.
4 But I had an African American student
5 interrupt me during class and say, I don't
6 understand, people do buy life insurance on their
7 children.
8 And I had a dialogue with that
9 student about her experience with child life
10 insurance, which I embarrassingly confessed I did
11 not know existed at that point.
12 And it turned out, and I discovered
13 through subsequent work in talking with other
14 professors and with sociologists, that, in fact, the
15 majority of children in the United States are
16 covered by child life insurance policies.
17 But child life insurance is something
18 pretty much, and at that point, entirely obviously
19 unknown to affluent parents.
20 And it's heavily phenomenon currently
21 among African American parents and it is heavily
22 bought.
23 And, of course, you know, then I
24 embarrassingly researched it and discovered it went
25 back a hundred years and is a central feature of the
GRUTTER -vs- BOLLINGER, ET AL
48
1 Tree Grows in Brooklyn and various other contexts.
2 But I didn't know that. I had no
3 experience with it. Child life insurance was
4 something I didn't think existed because law
5 economic scholarships said it didn't exist.
6 And it led me subsequently to change
7 my teaching materials to include writing on child
8 life insurance, and changed kind of how I looked at
9 life insurance in the classroom.
10 THE COURT: And you changed that only
11 because you had African American students in your
12 class?
13 A. It's hard to say. I mean it is an African American
14 student that bought it up.
15 THE COURT: That raised it.
16 A. So it's hard to say if that would have happened
17 otherwise. I don't know.
18 BY MR. KESSLER:
19 Q. But as a follow-up to the Court's question, do you
20 believe that based on your experience this African
21 American student would have felt comfortable
22 interrupting you and raising this point, that in
23 turn, promoted the discussion and the other changes
24 that you have described?
25 MR. PURDY: Your Honor, I have to
GRUTTER -vs- BOLLINGER, ET AL
49
1 object.
2 THE COURT: Sustained.
3 BY MR. KESSLER:
4 Q. Can't a good law professor make up for the lack of
5 racial diversity in a classroom where there isn't a
6 critical mass present?
7 A. I think a good law professor could try, and I have
8 in various settings. And I haven't succeeded.
9 Q. Have you discussed this point with your colleagues?
10 A. Yes.
11 Q. And what is your view based on those discussions, is
12 this just a problem that you have, or is this a
13 general problem?
14 A. Well, it's not a general problem at the moment,
15 because most law schools right now have what we
16 describe as a critical mass of minority students.
17 The context I discussed today is
18 particularly discussing with the people I teach with
19 in Germany, where the classes I teach are extremely
20 homogeneous, very bright students, all German
21 obviously and all of German nationality.
22 And it is a problem, because teaching
23 American case law to Germans, a lot of it is
24 incomprehensible. Not because the doctrine is
25 incomprehensible, but because the underlined facts
GRUTTER -vs- BOLLINGER, ET AL
50
1 and issues are different.
2 And I have tried to recreate the
3 dynamic of a diverse Socratic classroom for those
4 students, by myself asserting the views that I think
5 a diverse group of, say, African American students
6 would assert, or a diverse group of older students.
7 Because many of the students in
8 Germany tend to be in the same age group. And it
9 just doesn't work well. The professor is lecturing
10 instead of the students--drawing it out of the
11 students own experiences.
12 Q. You have said both in your report and today, that
13 you really can't achieve this array of viewpoints
14 and deep thinking that you have talked about without
15 having racial diversity to a meaningful degree, or a
16 critical mass in the classroom.
17 Isn't that just a way of saying that
18 race is a proxy for viewpoint?
19 A. That's what I would have thought when I started
20 teaching, and that's what I found and really did
21 find affirmative action policies troubling and
22 patronizing to some degree.
23 And as I have suggested by my
24 testimony, considering race in admissions in order
25 to get a particular viewpoint--a particular
GRUTTER -vs- BOLLINGER, ET AL
51
1 designated approved viewpoint into the classroom is
2 what worried me about race and admissions.
3 And continues to, in my view, be an
4 inappropriately wrong basis for this kind of policy.
5 I don't view it that way now after teaching for
6 fourteen years, and I guess it's based on my
7 experience in the classroom that I don't view it
8 as--that's not how I view it.
9 I view it as basis for in some way
10 doing the opposite, which is educating future
11 lawyers that there is not a racial point of view
12 that they can assume one has because of ones race.
13 And so that it is the case that many
14 of my African American students have what people
15 would presume would be their views on some issues in
16 law ahead of time, but it's also the case that I get
17 very unexpected points of view and incredible class
18 discussion and analysis that follows from it. And
19 that's why I value it.
20 Q. I want to change gears here, we're coming down the
21 home stretch, your Honor.
22 THE COURT: All right.
23 BY MR. KESSLER:
24 Q. You have read the recent supplemental report by
25 Professor Raudenbush, that's Exhibit 150, you made
GRUTTER -vs- BOLLINGER, ET AL
52
1 reference to it before. I want to ask you a couple
2 of questions that are based on Professor
3 Raudenbush's report and his conclusions.
4 He concluded, among other things in
5 his report, that Michigan law schools minority
6 enrollment would only be about four percent if
7 Michigan adopted a race neutral policy, as compared
8 with roughly 15 percent under the current policy,
9 you recall that?
10 A. Yes.
11 Q. He also concluded that a first year law section at
12 Michigan, which you probably recall involves about
13 85 students, would only have a 67 percent
14 probability of enrolling three or more minority
15 students as compared with a hundred percent
16 probability of that happening under the current
17 policy, do you recall that?
18 A. I recall that with reference to African American
19 students.
20 Q. Okay. And I want to give you just a couple of more
21 statistics from his report. He also concluded that
22 a first year half section, which is about 42
23 students, would only have a 24 percent probability
24 of them gaining three or four minority students
25 under a race neutral policy, compared with a 96
GRUTTER -vs- BOLLINGER, ET AL
53
1 percent probability of that happening under the
2 current policy.
3 A. Yes.
4 Q. He also concluded--well, let me ask you one
5 question.
6 Does the presence of just three
7 minority students in a class of either 85 or 42,
8 does that represent fairly modest numbers?
9 A. I'm sorry. When you minority students, you're
10 referring to African Americans, Hispanics?
11 Q. Underrepresented minorities, African Americans,
12 Hispanics, Native Americans and so on?
13 A. And can you repeat the question?
14 Q. The question is whether having three minorities
15 overall in classes of either 85 or 42, are those
16 relatively modest numbers of minorities?
17 A. Well, their modest in the sense of achieving the
18 pedagogical side that I talked about in my report,
19 yes.
20 Q. Let me give you just a couple of more conclusions
21 that Professor Raudenbush drew.
22 He also concluded that the
23 probability of enrolling three African Americans or
24 three Hispanics, so it's either or, in the 85, the
25 large student section, a hundred percent under the
GRUTTER -vs- BOLLINGER, ET AL
54
1 existing policy, but only 49 percent under a race
2 neutral policy.
3 And lastly, he did make other
4 conclusions, but I'm not going to go through all of
5 them just in the interest of time.
6 He concluded that the probability of
7 enrolling three African Americans or three Hispanics
8 in the half section, the 42 student section, is 89
9 percent under the current policy, but only 13
10 percent under a race neutral policy.
11 And my question to you is, based on
12 those conclusions that Professor Raudenbush drew and
13 assuming that they are correct, does that indicate
14 to you that a race neutral policy at the University
15 of Michigan Law School wouldn't produce a critical
16 mass of minority students?
17 A. It indicates to me that it would not.
18 Q. Based on Professor Raudenbush's analysis, and again,
19 assuming that it is valid and correct. Do you
20 believe that the University of Michigan Law School
21 has considered race only to the extent necessary to
22 achieve a critical mass of minority students?
23 MR. PURDY: Object on foundation.
24 THE COURT: Sustained.
25
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1 BY MR. KESSLER:
2 Q. Would you encourage a student--my last question.
3 Would you encourage a student who is interested in
4 attending law school, to pursue legal education in a
5 school that was not committed to diversity in
6 general, and did not enroll a critical mass of
7 minority students?
8 A. I would and, indeed, frequently counsel students on
9 precisely that issue. And I advise them not to go
10 to schools unless they have a meaningful number of
11 minority students in the classroom settings.
12 And I do that for the reasons given
13 in the report. I am skeptical they will get the
14 best education that they can get if they don't have
15 that advantage.
16 MR. KESSLER: Thank you, Dean
17 Syverud, I have nothing further.
18 MS. MASSIE: Nothing for the
19 Intervenors.
20 THE COURT: Mr. Purdy.
21 CROSS-EXAMINATION
22 BY MR. PURDY:
23 Q. Good morning, Dean Syverud.
24 A. Good morning.
25 Q. My name is Larry Purdy and I represent the
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1 Plaintiff, we met this morning for the first time
2 before court opened, you recall?
3 A. I recall.
4 Q. Okay. You mentioned that you have consulted with
5 the University of Oregon Law School, is that
6 correct?
7 A. No, I was on the accreditation team for the American
8 Bar Association that was reaccrediting the
9 University of Oregon Law School.
10 Q. You think the University of Oregon Law School offers
11 an outstanding legal education to its students?
12 A. I think it is a good legal education for its
13 students.
14 Q. Do you consider the Oregon Law School to have a
15 critical mass of underrepresented minority students
16 in the student body?
17 A. I do not.
18 Q. Nevertheless, you consider that it offers a good
19 education to the law students that attend?
20 A. I do.
21 Q. The University of South Dakota, what was your
22 affiliation with the University of South Dakota?
23 A. I was asked by the Dean to speak to the faculty and
24 students there.
25 Q. Do you consider the University of South Dakota to do
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1 a good job of offering a legal education to the
2 students that attend that law school?
3 A. I do.
4 Q. If a student from South Dakota said, Dean Syverud,
5 should I attend the University of South Dakota Law
6 School, would you tell him or her not to go there
7 because in your view the racial mix might not be up
8 to what you would expect?
9 A. I would ask that student about that student's career
10 goals, and my advice would depend on those. My
11 family is from South Dakota, and South Dakota is not
12 a racially diverse place.
13 It's kind of like Scandinavian,
14 German with the exception of parts of Sioux Falls.
15 And I would and actually was asked by students when
16 I was at South Dakota about this issue, because it's
17 a quite homogeneous law school in the racial sense.
18 Not in the experiential background of the students.
19 And if a student, a potential law
20 student wanted to practice law in settings around
21 the United States where there is a great deal of
22 racial diversity, or practice law internationally, I
23 would not advise that student to go to the
24 University of South Dakota Law School, for the
25 reasons you gave, among others.
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1 Q. Let me so we all understand. If you have a student
2 in South Dakota and they wanted to attend the
3 University of South Dakota Law School, but had an
4 aspiration of practicing law, say, on the east coast
5 or the west coast, it would be your advice that they
6 not attend that law school which you have already
7 told us you believe gives a good education, a good
8 legal education, correct?
9 A. I testified it's a good legal education, yes.
10 Q. But because of your view of the lack of critical
11 mass, because I assume we can all agree, there is a
12 lack of critical mass in minority students in South
13 Dakota?
14 A. Yes, there are a decent number of Native American
15 students at the University of South Dakota Law
16 School, because of the Native American population in
17 South Dakota. There is a very small percentage of
18 African Americans or Hispanic students.
19 Q. As a matter of fact, Native American students can
20 add a tremendous amount of diversity to a law
21 school, can they not?
22 A. Yes, they can.
23 Q. How many Native Americans students attend Vanderbilt
24 Law School?
25 A. Almost none. But your question was would I advise
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1 the person to go to the University of South Dakota
2 Law School, and I answer is between equally situated
3 law schools, and there would be choices for such a
4 student.
5 Including schools like William
6 Mitchell in Minneapolis or other schools in the
7 region, that are more racially diversed in the
8 senses that we've described.
9 And I seriously would advise that
10 student to look very closely at those alternatives.
11 Not if that person wants to practice on the coast,
12 but if that person has a goal of practicing in
13 Minneapolis. And I did so advise a student.
14 Q. My ala mater would be pleased to hear that.
15 A. I'm sorry, I didn't know that.
16 Q. That's all right, I'm sure they'll be proud to hear
17 that you would advise students to go there.
18 A. Okay.
19 Q. I want to go back because there are many state
20 residents in South Dakota who, for a variety of
21 reasons, socioeconomic reasons, family reasons,
22 would prefer or may, indeed, be required to attend
23 law school in South Dakota, would you agree?
24 A. Yes.
25 Q. And are you suggesting, however, that a student who
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1 attends law school in South Dakota is going to be
2 somehow unprepared to go out and practice law on the
3 east coast or the west coast, or in Minneapolis, or
4 Detroit or Chicago, simply because of the racial mix
5 that may be present in his or her law school class?
6 A. No, I'm not suggesting that.
7 Q. You had a fascinating question earlier about
8 learning something about the extent to which parents
9 may buy life insurance for children, do you recall
10 that?
11 A. Yes, I do.
12 Q. Dean Syverud, isn't it true that had that issue been
13 brought to your issue by a white student or an Asian
14 student, it still would have been a surprise to you?
15 A. Yes. It just wasn't, so.
16 Q. But the color, or the ethnicity of the student who
17 brought that to your attention, had nothing to do
18 with what you learned from that advice, correct?
19 A. That is correct. And it has been my experience over
20 time that the experiential base of students is
21 diverse among all students, not just in racial
22 minorities.
23 But it has been my experience that a
24 critical mass of minority students does bring an
25 experiential base that tends not to come out
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1 otherwise.
2 Q. You have raised the example of sometimes where there
3 might be, say, just one and let's use for example an
4 African American student in the class.
5 That if asked a question, it was your
6 view or your feeling that a black or, say, Hispanic
7 would, and I believe I wrote this down and I
8 apologize if I didn't get it correctly.
9 That they had race views that tend to
10 be the politically correct or the expected views, do
11 you recall that testimony?
12 A. I recall testifying that the more common response is
13 silence or not kind of probing examination of
14 individual views. And if not that, then the next
15 most common response in a token situation, is the
16 politically correct view.
17 Q. Do you assume that there are expected views from
18 black students or Hispanic students?
19 A. That's a good question. I guess from my experience
20 of teaching and particularly talking with students
21 inside and outside class, I have become increasingly
22 convinced that many white students have projected
23 expected views that minority students will have
24 uncertain questions, yes.
25 Q. Are you generalizing now as to white students, in
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1 other words, you assume that most white students
2 expect a particular view from a minority?
3 A. I'm not assuming anything, I'm basing it on
4 conversations with my white students.
5 Q. But there are white students, I'm sure, who don't
6 share that view?
7 A. Yes, that's very correct.
8 Q. And wouldn't it be true that if we didn't walk into
9 a classroom with an expected view from anyone based
10 on their race, we wouldn't even have this issue,
11 wouldn't that be true?
12 A. If no one would walk into the room, no student or
13 teacher went in expecting what the views and
14 experiences of the people in the class would be, I
15 agree we wouldn't have this issue.
16 Q. In other words--I apologize, I didn't mean to talk
17 over you.
18 A. That's okay.
19 Q. In other words, would you agree with this, Dean
20 Syverud, if we respected one other as individuals
21 and not as representatives of our race, there would
22 be no expected view, correct?
23 A. Yes, and that's exactly one of the primary goals I'm
24 trying to get to in my teaching. Your question
25 presumes that kind of the mental attitude of the
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1 professor going in, can kind of produce that
2 atmosphere in the classroom.
3 And that's the way I started
4 teaching, that's the presumption I started teaching
5 with. And I guess I have a different presumption
6 now from a lot of experienced teaching.
7 That it isn't just me--it isn't
8 just--it isn't something the professor automatically
9 causes to happen by attitude of the teacher in the
10 classroom.
11 It requires a dialogue among the
12 students over a period of time that doesn't consist
13 of kind of self righteous lecturing of that point of
14 view by the professor, but as it emerge from
15 understanding of hearing everybody talk about their
16 points of view during the course of the semester.
17 And that's hard to make happen in a
18 classroom that doesn't have significant numbers of
19 minority students.
20 Q. You make it sound, and please correct me if I'm
21 wrong. But you make it sound as if the vast
22 majority of law students that come into our very
23 fine law schools today, have these assumptions about
24 other people that somehow race or ethnicity dictates
25 their views, is that your assumption?
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1 A. I guess I'm saying something different, which is
2 that for reasons I don't understand the degree to
3 which people prior to law school, law students I
4 have will come in, listen to each other before
5 talking and projecting assumptions about views is a
6 problem. It really is a problem.
7 A degree to which by the time
8 students get to law school, they have categorized
9 people. It has increasingly bothered me.
10 I guess that's a criticism of the
11 educational system up to law school. And I guess
12 that could be viewed as me being patronizing of my
13 students.
14 It's just my experience though that
15 many students assume they know what people think of
16 issues before they ask.
17 And assume that the experiences of
18 individuals is similar to their own until--it's part
19 of the socialization process.
20 And there is a socialization process
21 in law school of wanting to seem professional like
22 everybody else. That it requires some effort on my
23 part to break down.
24 Q. Do you make any assumptions, Dean Syverud, as to the
25 extent of which your law students either when you
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1 were at Michigan, or now that you're at Vanderbilt,
2 had interracial relationships before they ever got
3 to law school, do you make any assumptions about
4 that?
5 A. I don't make assumptions except for what information
6 we gleam from the admissions applicants and the
7 materials about the students.
8 Q. I'm sorry, go ahead, I apologize.
9 A. So, there is some, you know, there's some data in
10 the admissions files and the essays and other things
11 that students write.
12 And usually I do look at that
13 material before I teach, particularly, a first year
14 class. So I get some information about the
15 backgrounds, including experience across races in my
16 students.
17 Q. But is there anything in an applications file that
18 suggest that students either at Michigan or those at
19 Vanderbilt, have come into the school without any
20 interracial relationships or dealings before they
21 got there?
22 A. Actually the individual admissions files don't show
23 that detail of experience. I mean I take my first
24 year students out to lunch in groups and talk about
25 their experiences and their backgrounds, where
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1 they're from.
2 And in Vanderbilt many of them are
3 from small towns in the south, where there's
4 substantial interracial experiences by the nature of
5 the community. So I guess it varies by the
6 individual.
7 There are students have no experience
8 at all. There are students who are brought up in
9 racially diverse settings because the churches are
10 very segregated, or the schools are very segregated
11 and they have not had much experience.
12 And there's students who have
13 unbelievably diverse interracial experiences.
14 Q. And that varies across racial lines, wouldn't that
15 be true, of both blacks students, for example, and
16 white students?
17 A. Yes, it sure does.
18 Q. In your testimony you made a statement, you said
19 that you never had any trouble with your white
20 students in terms of seeing over the course of a
21 year a vast majority of experiences, you recall that
22 testimony?
23 A. Yes, I said that I have never had any trouble with
24 white students projecting onto another white student
25 assumptions of their views of almost all issues
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1 because of their race.
2 And that's primarily been every class
3 I've taught there's been such an incredible
4 diversity of background and experience among the
5 white students that become very obvious very quickly
6 in the semester.
7 Q. Sure. In other words, every individual is different
8 and there's a broad range of diversity and a broad
9 range of experiences that are present in both the
10 Law School of Michigan, as well as at Vanderbilt?
11 A. Yes. But the difference is that that becomes
12 obvious among the white students early in the
13 semester everytime. It becomes obvious everytime,
14 because there's always a critical mass of white
15 students in every class I've taught.
16 And so very quickly after I've called
17 on four or five of them, it's obvious they all don't
18 have the same views and they all don't agree. And
19 therefore, they are comfortable expressing different
20 views and disagreeing with each other very quickly.
21 Q. You've made an assumption, and again correct me if
22 I'm wrong. I believe you've made the assumption
23 that the black students, for example, who come into
24 your classroom are less comfortable expressing their
25 viewpoints at Vanderbilt Law School, is that
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1 correct?
2 A. It's been my experience that for some black students
3 that is the case, yes.
4 Q. But not for all, correct?
5 A. Very correct.
6 Q. And there are white students who are uncomfortable
7 expressing their views, are there not?
8 A. Yes. And that's kind of why I call on them the way
9 I call on them. Which is at random dropping paper
10 clips on to the seating chart. So the uncomfortable
11 ones have to talk too.
12 Q. So I'm sure they're always worried when you start
13 throwing the paper clips?
14 A. They are very worried, yes.
15 Q. You made a very interesting comment, I want to make
16 sure I got it down. I believe in your testimony
17 earlier this morning you said that it can be enough
18 to have one member of a particular minority in a
19 classroom, correct?
20 A. Yes.
21 Q. And that just simply depends on that individually,
22 his or her personality, correct?
23 A. It's really tough, because it's hard for--it's hard
24 in the sense for one African American student to
25 demonstrate to in various ways a diversity of views
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1 among African American students. Because by
2 definition, that's a unique individual.
3 But what one outspoken and unique
4 individual can do is shake up expectations and start
5 getting everybody in the class to view that person
6 as a unique individual.
7 Q. Dean Syverud, I believe in one of your reports you
8 have talked about the law school education
9 being--and I'll just paraphrase. It being
10 immeasurably poor, or if there's not meaningful
11 numbers, or significant numbers of blacks, Hispanic,
12 Asian Americans and white students, I believe that
13 was what you said, you recall that?
14 A. Yes. I have to look at the report, but I remember
15 that sentence in the report.
16 Q. Sure. And if you were lacking, if a law school were
17 lacking in any one of those particular groups, in
18 other words, lacked a critical mass, do you believe
19 that that law school would be offering an inferior
20 education, a legal education to its students?
21 A. As compared to schools that didn't lack that
22 critical mass, yes.
23 Q. I earlier asked you about Vanderbilt's enrollment of
24 Native Americans. And, in fact, do you know if
25 there is even one Native American at Vanderbilt Law
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1 School currently?
2 A. Yes, there is currently. I mean we had,
3 historically we had a huge, believe it or not,
4 Cherokee population before World War II.
5 But currently it's quite common for
6 an entering class not to have a single Native
7 American student. There is one in this year's
8 entering class, I believe.
9 Q. You consider that a critical mass?
10 A. No, I don't.
11 Q. How about, let's just use last year's entering class
12 at Vanderbilt. Were there any Hispanic students?
13 A. You mean the class that entered in 1999, there was
14 not a single Hispanic student, correct.
15 Q. Did you tell your students that entered in that
16 class that their education was going to be inferior
17 because of the absence of Hispanic students?
18 A. I talked to students about the issue and explained
19 why I was very concerned about it, yes.
20 Q. But the truth is the class had no Hispanics in it?
21 A. That's correct.
22 Q. Do you recall the percentage of the class that was
23 made up by African American students?
24 A. In the entering class in 1999?
25 Q. Yes, sir.
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1 A. I don't recall the exact percentage, no.
2 Q. If I told you it was around seven percent, would
3 that be consistent with your understanding of that
4 class?
5 A. I would think it would be slightly larger than that.
6 Q. Outside of African American students, there were no
7 Native Americans in last year's entering class,
8 correct?
9 A. That's correct.
10 Q. No Hispanics was in that class, correct?
11 A. I believe that's correct, yes.
12 Q. And so the total underrepresented minority
13 population in last year's entering class would have
14 been--and I just want you to assume, and you correct
15 me if I'm wrong.
16 But I want you to assume it was about
17 seven percent.
18 A. Okay.
19 Q. And that would be the total underrepresented
20 minority population at Vanderbilt in last year's
21 entering class?
22 A. Correct. I will take that assumption as correct.
23 Q. Okay. Would that constitute a critical mass of
24 underrepresented minority students, in your view?
25 A. I think it would represent a critical mass of
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1 African American students. And I say that primarily
2 because I taught civil procedure to half of those
3 students last year, and had in my civil procedure
4 class at least five or six African American
5 students, and the dynamic I described occurred.
6 That is, over the course of the
7 semester the students became individuals with the
8 kind of caustic views across races, across black and
9 white races.
10 Nashville, Tennessee is not a state
11 that--it's a southern state where the significant
12 minority population is African American.
13 But I would say it had a critical
14 mass of African American students, because the
15 pedagogical goals that I described happened in my
16 class with African American students.
17 Q. Of course, the University of Michigan's admissions
18 policy talks about a critical mass of
19 underrepresented minority students, correct?
20 A. I believe so, yes.
21 Q. And that included the Hispanics, African Americans
22 and Native Americans?
23 A. Yes. I believe it did, yes.
24 Q. If Vanderbilt last year rather then have a seven
25 percent African American students, it had no African
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1 American students but seven percent Hispanic
2 students, would you still have the same view of the
3 class?
4 A. Again it would depend on what happened in the class
5 I taught. I mean when I say meaningful numbers of
6 minority students, it's not a particular minimum
7 standard quantifiable goal. It's what happens in
8 class with those particular students as to whether
9 it works.
10 I wouldn't be concerned in the same
11 way in that hypothetical as I was, in fact,
12 concerned about the Hispanic enrollments if I had no
13 African Americans in the classroom.
14 Q. Dean Syverud, we have talked a lot about critical
15 mass and you have been lucky, because you haven't
16 had to be here the last week or so because that
17 subject has come up a lot. And we try to get a
18 number on it and I don't think we're going to be
19 successful, at least, here in this courtroom.
20 But if I were to ask you would five
21 percent underrepresented minority enrollment
22 constitute a critical mass, do you have an opinion
23 one way or the other?
24 A. I guess from what I said, you can probably guess at
25 what my opinion is, but I will say.
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1 Q. Sure.
2 A. It would depend on the effect in the classroom. I
3 would say that five percent African American
4 enrollment to the extent it produced significant
5 numbers of African American students in the relevant
6 classroom settings, would produce a critical mass.
7 So it would depend on what classroom settings the
8 school employs.
9 Q. And, of course, whether or not that particular
10 percentage might constitute critical mass is going
11 to depend uniquely on the individuals, correct?
12 A. That's my view, yes.
13 THE COURT: And the professor's?
14 A. Yes.
15 MR. PURDY: I'm sorry?
16 THE COURT: I said and the professor,
17 depending on what the teaching method is and so
18 forth.
19 A. Yes, I agree.
20 BY MR. PURDY:
21 Q. That prompts another question. Do you believe, as
22 of last year, do you believe that the Vanderbilt law
23 faculty had critical mass of minority members?
24 A. I'm sorry? You want to talk about diversity in the
25 law faculty?
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1 Q. No, I just want to ask one question, and I
2 apologize. And I will limit it to this.
3 A. Sure.
4 Q. Beginning in 1999, the 1999 calendar year, academic
5 year 99/2000, was it your view that the Vanderbilt
6 faculty had a critical mass of minority members?
7 A. Well, I guess I can't just translate this
8 significant numbers question that we've been
9 discussing for students onto faculty, it's a
10 different question.
11 I guess the dynamics of faculty
12 interaction with each other and with the students is
13 a little different then the dynamic of one professor
14 teaching a class. So I never thought about critical
15 mass of faculty.
16 Q. Okay.
17 A. And I didn't understand that that was-
18 Q. (Interposing) It's not an issue, I just asked the
19 question and let me just be clear.
20 A. Yes.
21 Q. Critical mass that you have been talking about for
22 students, might be something entirely different if
23 we're talking about faculty?
24 A. Yes. It is the case that as of last year there was
25 one tenured African American faculty member at
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1 Vanderbilt, there are four now.
2 It is the case that there is only two
3 Asian American faculty members at Vanderbilt, and no
4 Hispanic of Native American faculty.
5 I guess I haven't--I guess the kind
6 of clastic views on what critical mass what--on
7 affirmative action issues with regard to faculty
8 recruitment.
9 And I've been testifying here about
10 pedagogy in the classroom, and I actually think it's
11 a different question about professors.
12 Most professor teach as individuals,
13 and so the notion that there is a critical mass of
14 your one person when you're teaching.
15 Q. Can we assume then, and I'll move on. Can we assume
16 that your views about the use of race and selected
17 faculty may be different from those of selected
18 students?
19 A. Yes, you can.
20 Q. Dean Syverud, let me give you, and it's not a
21 hypothetical, but I'm going to give you a law school
22 with 16 percent African American students. So I
23 want you to assume this, but I will represent you is
24 the case.
25 Sixteen percent African American
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1 students, over five percent Hispanic students, over
2 one percent Native American students, almost five
3 percent Asian American students, two person foreign
4 students, and approximately 69 percent Caucasian
5 students.
6 Would that just hearing those
7 numbers, does that sound to you like a student body
8 where there's a critical mass?
9 A. Again, my context is that it depends on the
10 particular classroom and professor. But I would
11 think it would be more likely that in various
12 classroom settings with drawing from that
13 population, there would be meaningful numbers of
14 minority students in the original classes.
15 Q. And I'll represent to you that that's about 22
16 percent, 22.4 percent of underrepresented minority
17 students.
18 Would that make that law school, in
19 your view, an inherently better school than say,
20 Vanderbilt, which has no Hispanic students, no
21 Native Americans students entered in your last year
22 entering class?
23 A. I think it would make various teaching settings more
24 likely to produce the pedagogical goals that I have
25 described. And that would make it a better law
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1 school in that respect, yes.
2 Q. I'll represent to you, and again I will stand
3 corrected if I'm in error. But I believe those are
4 the numbers from Thomas Cooley Law School here in
5 Michigan. Are you familiar with Thomas Cooley?
6 A. I sure am.
7 Q. And it's a fine law school, is it not?
8 A. I think it's a very good law school.
9 Q. And, in fact, Michigan every year, at least, not if
10 every year, but at least frequently gets transfer
11 students from first year students who completed
12 their studies at Thomas Cooley and then they come to
13 Michigan Law School, correct?
14 A. I haven't looked at Michigan's transfer since I left
15 in '97. But certainly while I was associate dean
16 there, it was one or more transfer students from
17 Cooley.
18 Q. But because of the racial mix that I have just
19 described to you, do you believe that Thomas Cooley
20 offers a better legal education to its students
21 because of its abundant racial heterogeneity than
22 does Michigan?
23 A. I guess I believe that what I have testified to is
24 that at a certain point, there's meaningful numbers
25 of African American students and other groups of
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1 students in particular classroom settings.
2 And therefore, the result it's
3 possible and likely that students become individuals
4 and learn in the ways I have described are my goals.
5 I don't think that results in this
6 kind of straight line projection that the higher
7 percentage you go, the better it gets automatically.
8 What I've been testifying to is that
9 there is some threshold over which you have to
10 cross, and if you don't get to that point it doesn't
11 happen in the classroom. And I do think that's a
12 very material factor in the quality of the
13 education.
14 And so, for example, if I honestly do
15 think the educational experience at Cooley is quite
16 a bit better than some very highly ranked law
17 schools where there isn't much racial diversity in
18 the classes and--I don't think it's just for that
19 reason, I think there's other things Cooley does
20 well that some schools do not do.
21 So, I guess this is one factor that
22 makes the law school better than other equally
23 situated law schools.
24 There's other things that those other
25 law schools can do better, they could have better
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1 research with their financial aide, or a more
2 prominent faculty, you know other, things. But this
3 would be one relevant factor, yes.
4 Q. If depending on ones career goals, going back to
5 your comment about South Dakota?
6 A. Yes.
7 Q. The student at South Dakota. Depending upon ones
8 career goals here in Michigan, is it conceivable
9 that you might suggest to a particular student that
10 they should attend Thomas Cooley as opposed to the
11 University of Michigan?
12 A. Yes.
13 MR. PURDY: That's all I have, your
14 Honor.
15 THE COURT: Anything, Mr. Kessler?
16 MR. KESSLER: I have just a few
17 questions, your Honor.
18 REDIRECT EXAMINATION
19 BY MR. KESSLER:
20 Q. Dean Syverud, I'm sure you recall the discussion
21 with Mr. Purdy about the Oregon Law School, and that
22 Oregon offers a good legal education, but perhaps
23 has no critical mass of minority students, you
24 recall that?
25 A. Yes.
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1 Q. Would Oregon be a better law school offering a
2 richer and more valuable legal education, in your
3 opinion, if it did have a critical mass of minority
4 students?
5 A. Yes, it would.
6 Q. And would the same be true of South Dakota?
7 A. Yes, it would.
8 Q. Would the same be true of any law school, just fill
9 in the blanks, all other things being equal?
10 A. Yes.
11 Q. There was a discussion that you had with Mr. Purdy
12 in which you indicated, if I got my notes right,
13 that you were not suggesting that a South Dakota law
14 school graduate would be unprepared, that was the
15 word, unprepared to practice on either the east
16 coast or the west coast or in large cities, which
17 obviously have diverse populations, do you recall
18 that?
19 A. Yes, I do.
20 Q. Would the graduates of the South Dakota Law School
21 be better prepared, in your opinion, to practice on
22 either of the coasts, or in any large city, or to
23 practice internationally if they graduated from a
24 law school that had a critical mass of diverse
25 students, critical mass of minority students, I
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1 should say?
2 MR. PURDY: Your Honor, I have to
3 object on foundation.
4 THE COURT: Sustained.
5 MR. KESSLER: Your Honor, he opened
6 the door.
7 THE COURT: He opened the door, but
8 you've gone a little bit outside. I mean his
9 opinion is no different than anybody elses, I'll
10 sustain the objection.
11 BY MR. KESSLER:
12 Q. You had a brief discussion with Mr. Purdy about
13 situations where there might be just one, I think
14 the example was African American in a class, and in
15 an unusual case the African American had a
16 particularly forceful and outgoing and confident
17 personality.
18 You might achieve some of the
19 benefits of critical mass with just that one
20 student, do you recall that?
21 A. Yes, I do.
22 Q. Would that be the exception, in your experience?
23 A. Yes, most definitely.
24 Q. There was discussion about the Hispanic student
25 population at your law school, at Vanderbilt, I
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1 think in the class of 1999?
2 A. Yes.
3 Q. Has the number of Hispanic law students at
4 Vanderbilt Law School, in your experience, varied
5 rather dramatically from one year to the another?
6 A. It certainly has.
7 Q. So, it's not the case that Vanderbilt in general
8 doesn't enroll Hispanic law students, is that right?
9 A. No. There are numbers of Hispanic American students
10 in the third year class and the first year class,
11 and in the classes that have graduated recently.
12 But our minority enrollment of
13 various groups, varies considerably year to year.
14 We read the files and do the admissions and it
15 varies.
16 Q. As a legal educator who is devoted to delivering the
17 best possible education to your law students, would
18 you always prefer that Vanderbilt have meaningful
19 numbers of African Americans, as well as meaningful
20 number of Hispanics, as well as meaningful numbers
21 of Native Americans?
22 A. All other things being equal, I would prefer that,
23 yes.
24 Q. There was a discussion that you had with Mr. Purdy
25 about, you know, whether five percent African
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1 Americans might be enough to constitute a critical
2 mass.
3 And I think you indicated that it
4 would depend on the numbers of minority students and
5 the various classes and learning context, you recall
6 that discussion?
7 A. Yes, I do.
8 Q. I just wanted to be sure that I understood what you
9 were saying.
10 Is it your idea that what you want to
11 do in achieving a critical mass, is to avoid getting
12 token numbers of minorities in most classes so that
13 the dynamics that critical mass produces can be, in
14 fact, produced?
15 A. Yes, I mean--that's my belief. So, it depends on
16 the structure of the education, five percent might
17 work in some settings, depending on how the
18 curriculum work.
19 Q. And finally, there was discussion about the levels
20 of diversity at Cooley Law School and comparisons to
21 Michigan Law School and other law schools, do you
22 recall that?
23 A. Yes, I do.
24 Q. Once again, is the University of Michigan Law
25 School, or any law school all other things being
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1 equal, offering a better and richer legal education
2 to its students when it has a critical mass of
3 minorities, then that particular law school would
4 otherwise be able to deliver?
5 A. In that particular law school you mean Michigan?
6 Q. Michigan or Harvard or any law schools?
7 A. Yes, I think that a law school that has critical
8 mass or meaningful numbers of minority students in
9 classroom settings is offering a better educational
10 experience then the same law school if it did not.
11 MR. KESSLER: I have nothing further.
12 THE COURT: I don't know if you know
13 the answer to this. We have heard the term
14 throughout this trial selective law schools.
15 Would you consider Cooley a selective
16 law school?
17 A. No, I would not.
18 THE COURT: Would it be fair then to
19 say that if a law school felt that it was important
20 to have a lot of diversity, than if they just chose
21 not to become a selective law school that they would
22 be able to achieve that goal much easier?
23 A. I believe that if that--there is quite a bit of
24 diversity nationally in the applicant pool for law
25 schools. And I think if law schools abandoned the
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1 LSAT and GPA as significant factors in admissions,
2 and that's I think what it means by--or
3 substantially change what their targets are for LSAT
4 or GPA, it would be easier for them to take
5 diversity, yes.
6 THE COURT: The word "selective", I
7 think what it does is it talks about ranges of LSAT
8 and so forth?
9 A. Right.
10 THE COURT: If they chose to not to
11 be selective, their pool would be larger, and
12 therefore the accomplishment of diversity would be
13 much easier as indicated by Cooley?
14 A. Yes. I mean the term selective I think is one that
15 kind of, you know, people like Princeton Review or
16 US News or some come up with it. So I don't know
17 what exactly their numbers are that they use.
18 THE COURT: In all the pleadings, the
19 Michigan Law School has considered themselves
20 selective, they have used that word?
21 A. I'm sorry. I don't know.
22 THE COURT: I don't want to put you
23 on the spot.
24 A. I try not to use the word selective or elite in
25 referring to my law school, because it seems--
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1 THE COURT: (Interposing) That other
2 people will do it for you?
3 A. Arrogance.
4 THE COURT: Thanks, Dean, I
5 appreciate it very much.
6 (Witness excused.)
7 THE COURT: Okay. The next witness,
8 we're going to take a break or you want to start
9 with the next witness.
10 The reason is that I have some
11 sentencing at eleven that I was going to take the
12 11:00 break, and I know it's going to take a little
13 bit.
14 The attorney that are on the sides, I
15 don't see them here yet. They're very active
16 attorney, they're usually a little bit late.
17 So why we don't start and then we'll
18 take a break at 11. Maybe we can go to a quarter
19 after, and then take our break at a quarter after.
20 MR. PAYTON: Your Honor, we call as
21 our last witness the Dean Jeffrey Lehman.
22 THE COURT: Dean, we may have to
23 break in the middle of your testimony.
24
25
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1 JEFFREY LEHMAN,
2 was thereupon called as a witness herein and, after
3 having been first duly sworn to tell the truth, the
4 whole truth and nothing but the truth, was examined
5 and testified as follows:
6 DIRECT EXAMINATION
7 BY MR. PAYTON:
8 Q. Good morning.
9 A. Good morning.
10 Q. You want to state your name for the record?
11 A. Jeffrey Sean Lehman.
12 Q. And you are currently the Dean of the University of
13 Michigan Law School, is that correct?
14 A. Yes, I am.
15 Q. Would you describe your educational background and
16 just start with college?
17 A. I was a mathematics major at Cornell University, I
18 graduated in 1977. Then I participated in a joint
19 degree program at the University of Michigan in law
20 and public policy. I earned a J.D. and a master's
21 degree in public policy in 1981.
22 Q. And what did you do immediately after law school and
23 the joint degree?
24 A. I served as a law clerk for Frank Coffin who was
25 then the chief judge of the United States Court of
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1 Appeals for the First Circuit.
2 Then I served as a law clerk for
3 associate Justice John Paul Stevens of the Supreme
4 Court. And then I practiced law for four years.
5 Q. Where did you practice law?
6 A. I practiced in Washington, D.C.
7 Q. And what were your areas of practice?
8 A. I was a tax lawyer.
9 Q. And how long have you been the dean?
10 A. This is my seventh year as dean, since 1994.
11 Q. You followed Lee Bollinger as dean of the law
12 school, is that correct?
13 A. Yes, I did.
14 Q. Were you on the faculty before that?
15 A. Yes, I was.
16 Q. Were you and Dean Syverud on the faculty at the same
17 time?
18 A. Yes, we started the same year.
19 Q. Is it fair to say that your career in legal
20 education has been exclusively at the University of
21 Michigan?
22 A. That's not quite right. I spent a semester visiting
23 at the Yale Law School as a visiting professor. And
24 I have also taught at the University of Paris.
25 Q. Do you continue teaching as dean?
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1 A. Yes, I do.
2 Q. What do you teach students?
3 A. As dean I teach a course in social welfare policy.
4 Q. What did you teach when you were simply a member of
5 the faculty?
6 A. I taught basic income taxation, I taught corporation
7 taxation. And then I taught courses about welfare
8 law. I've taught a course on urban poverty. I've
9 taught a course on nonprofit corporate and tax law.
10 Q. Okay. And have you published articles since you
11 have been a member of the faculty in any of those
12 areas?
13 A. Yes, I published articles in all of those areas.
14 Q. Okay. I take it that you enjoy teaching?
15 A. Yes, I do.
16 Q. And that's why you've continued teaching?
17 A. Yes, that's correct.
18 Q. How did you get picked to be the dean of the law
19 school?
20 A. Dean Bollinger announced that he was leaving to go
21 to Dartmouth to become a provost. And so the
22 provost at the University of Michigan who was Gill
23 Whitaker appointed a search committee, that was
24 mostly faculty and some students at the law school.
25 Ted--was the chair.
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1 They conducted a national search and
2 recommended three finalists to the provost, and then
3 president and to their staff. The provost and the
4 president interviewed all three of us and selected
5 me.
6 Q. You became dean in 1994, is that correct?
7 A. That's correct.
8 Q. Is there some organization, I'm going to make this
9 up, called Deans, or Law School of Deans?
10 A. Yes, there is. There's the American Law Deans
11 Association.
12 Q. Okay.
13 A. We call it ALDA.
14 Q. Say that again.
15 A. We call it ALDA.
16 Q. Are you a member?
17 A. Yes, I am a member.
18 Q. Do you have an active participation in that
19 organization?
20 A. Yes, I'm a member of the board of ALDA, and I'm also
21 the president elect. I have become president this
22 coming summer.
23 Q. Okay. How extensive is the organization, are there
24 a lot of law schools, are there a few, what is it?
25 A. There's 182 law schools in the county, so therefore
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1 there's 182 deans. And there's about 120 members of
2 ALDA.
3 Q. Dean Lehman, were you surprised when the Plaintiff
4 Barbara Grutter brought this lawsuit against the law
5 school?
6 A. No, I was not surprised.
7 Q. Why not?
8 A. There had been a lot of--just starting in the 1990s,
9 there had been a lot of attention to the use of race
10 in admissions policies at the different law schools
11 and different universities.
12 And a popular case had been litigated
13 in Texas, and there was a lot of publicity about the
14 fact that CIR was planning to bring lawsuits against
15 other law schools. And filed suit against the
16 University of Washington in the spring of '97.
17 There was then listings in the
18 newspapers about several state legislators in
19 Michigan who were interested in there being lawsuits
20 filed against the University of Michigan.
21 And then two months before this case
22 was filed, there was a lawsuit against the
23 University of Michigan's undergraduate admissions
24 program. So, by the time the suit was filed against
25 us, we were not surprised.
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1 Q. I'm going to ask just some general questions about
2 your views on, say, what the central issue is in
3 this case. And then I want you to describe sort of
4 what happens as an educational matter and as an
5 interpersonal matter at the law school, and I'm
6 hoping that will be an unit that will take us to a
7 break.
8 THE COURT: We're moving along.
9 BY MR. PAYTON:
10 Q. Okay. This case has raised a lot of questions about
11 diversity in general, and about racial and ethnic
12 diversity inside of that.
13 In your view as dean of the law
14 school, is having a racially diverse student body
15 important? Is having a diversed student body
16 important as an educational matter?
17 MR. PURDY: Your Honor, once again I
18 have to object to the relevant grounds. Simply
19 because we are not making this an issue, no one is
20 disputing.
21 THE COURT: You agree with him.
22 Again, I will note your objection. I think we can
23 all agree on--
24 MR. PAYTON: (Interposing) I welcome
25 that agreement on this. But I do think that as a
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1 matter of trying to figure out how we take race into
2 account and what the extent is, you have to
3 appreciate why we do what we do.
4 THE COURT: You may proceed.
5 MR. PAYTON: Okay.
6 THE COURT: Plus at this time he's a
7 named defendant.
8 MR. PAYTON: He is.
9 BY MR. PAYTON:
10 Q. Is having a diversed student body important
11 educationally, and is having a racially and
12 ethnically diverse student body an important
13 educational matter?
14 A. Yes, both of those are true.
15 Q. Could you explain?
16 A. I think the best way to explain has to do with, at
17 least the way I would explain it, and I have heard
18 Dean Syverud explain it his way.
19 The way I would explain it has to do
20 with the way I speak to the entering class of
21 students each year.
22 When I welcome the students--the
23 students come, there's an orientation and part of
24 the orientation is that I get up in front and say,
25 welcome.
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1 And then I talk to them about what
2 they can look forward to experiencing at the
3 University of Michigan Law School.
4 And the central theme of my welcome
5 to them, is that they will be transformed in law
6 school. They bring a lot of different qualities and
7 talents and attributes with them to law school at
8 the beginning.
9 And they will have some of them
10 nurtured, and they will develop them more fully
11 while in law school, and also acquire new knowledge
12 about the law and legal systems.
13 And when I talk with them about
14 attributes, qualities of the mind. The one that I
15 emphasize in this opening is something that I call
16 the great lawyer's ability to engage sympathetically
17 with counter argument.
18 What I mean by that and what I
19 explain to them, is every lawyer in every situation
20 that they're working with the legal issue in a
21 problem, has to be able to explore it deeply and
22 understand its complexity.
23 They have to be able to understand
24 that if they're in an adversarial situation, their
25 client is likely to see the issue one way, the
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1 opposing client is likely to see it a different way,
2 a judge might be inclined to see it a different way,
3 the general public might be inclined to see it a
4 different way.
5 And a great lawyer is able to really
6 feel the position of each of the different parties
7 to a controversy.
8 So, what we're trying to do in law
9 school is to help them reflect simply, intuitively,
10 see that complexity and engage sympathetically with
11 all of the different points of view.
12 And we do that in a variety of
13 different ways. The most significant is the use of
14 the Socratic method, where we push students to take
15 a position on a problem or issue, and then push them
16 to rethink and to consider a different prospective.
17 This is where diversity comes in.
18 And it's very, very poor, I believe, that students
19 learn through their conversation with the faculty
20 member, and also by watching other students speak
21 with the faculty member, and then through
22 interactions among the students themselves.
23 And because students they respect us
24 a lot and they appreciate the value of what we say,
25 but they see us differently from the way they see
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1 each other.
2 They identify more closely, more
3 strongly with one other than they do with us as
4 members of the faculty.
5 And part of what happens in a
6 classroom when there's a diversity of views, is that
7 the students see, oh, here is a classmate of mine
8 who I know and I like and I respect, they see this
9 problem differently from the way I do.
10 And so they start to ask themselves,
11 well, why is that. And then they start to imagine
12 how would my classmate Joe think about this problem.
13 Or how would my classmate Susanne think about this
14 problem, before they see it, before it's being ask.
15 And it becomes really by the end of
16 the first year at law school, it becomes part of
17 what we talked about when we talked about thinking
18 like a lawyer.
19
20
21
22
23
24
25
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1 Q Dean Lehman, I'd like you to take few minutes and
2 actually give us a sense of sort of what happens in the actual
3 law school, that is, the Michigan Law School. What it looks
4 like physically, how students interact. Do they live on a
5 campus; do they not live on the campus. Do they eat at the law
6 school; do they not eat at the law school. How does this
7 interaction and teaching environment, if you could describe it
8 for us.
9 A It's a very intense experience. I think all law schools
10 are intense experiences. I have visibly visited a number of
11 them, seen a number of them. I think Michigan is a very intense
12 experience. The campus is a quadrangle on a single city block.
13 Two sides of the quadrangle are dormitories. Then there is a
14 very large sort of a cathedral like building that is the
15 reading room.
16 Q The dormitories are the law school's dormitories?
17 A Yes, it's called the Lawyers' Club. That was the name
18 that was given as part of the bequest by William W. Cook when
19 he provided it. So it's called the Lawyers' Club. The
20 Lawyers' Club dormitories are broken up into entryways.
21 They're sections -- they're vertical. So they go from Section
22 A around to Section --
23 THE COURT: You can go into this if you want. I've
24 been up there, I've seen it. I've got a picture of it sitting
25 right in my office. But for the record if you think it's
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1 important. Go on.
2 A I'll try to be quick.
3 THE COURT: Take your time. It's a beautiful
4 building. It's great to hear the Dean describe it.
5 A I love these buildings, actually. They're very special
6 and they contribute to the atmosphere, the educational
7 atmosphere of the school. There's a kind of a seriousness
8 about them.
9 THE COURT: As I say, that's why I have a picture of
10 the quad sitting -- in my waiting room.
11 A Each of the vertical sections, there are three or four
12 stories. So there are a few students in each level. So you
13 get to know the other people in your section better than you
14 know -- it's not like a dormitory where there's -- where it's
15 horizontal, where you can go up, across a single floor. You
16 get to know the people better.
17 About two-thirds of the first-year's class lives in
18 the dorms, the Lawyers' Club. One wing of the Lawyers' Club is
19 where the students' cafeteria is. And it's also where the
20 faculty dining room which is adjacent to the students'
21 cafeteria. Then there is the big cathedral-like building
22 which is the reading room of the library. There's an
23 underground library addition. And then the corner building is
24 called Hutchins Hall. And that's were almost all but two of
25 the classrooms are. Also where a number of the faculty
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1 offices are, where the administrative offices are.
2 So as a student -- we don't encourage this -- but
3 it's actually possible for a student to really spend the
4 entire -- their life within this block and set foot outside.
5 But students, their life is really internal to the quad.
6 There's some good coffee shops on campus.
7 Q Were you present when Professor Raudenbush testified?
8 A Yes, I was.
9 Q And he testified about some of the learning environments
10 that took place at the law school, the first year section, a
11 half section, legal writing class, the dormitories, the moot
12 court team, the legal clinics, the moot court competition. Were
13 those the right collection of environments that -- where
14 learning take place in the law school environment?
15 A They were some of them. They accounted for the vast bulk
16 of the students academics experiences, both there's also the
17 entryway. It didn't include seminars. Seminars tend to have
18 about fourteen or fifteen students. And it didn't include a
19 lot of extracurricular and co-curricular activities, the
20 journals and the -- it did have the moot court competition, but
21 it didn't have a lot of the sort -- like the criminal law
22 society or the substantially focused organizations.
23 Q Let me just ask you a question about how first year
24 sections work. It may be that, you know, we're all lawyers and
25 own memories may no longer be accurate in describing, first
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1 year section is eighty-five students. Does that mean those
2 eighty-five students essentially spend the first year together
3 in various classes?
4 A Essentially. The way we try to do is that there are --
5 the first year required courses are common law, torts, criminal
6 law, civil procedure and property. And among those, four of
7 those would generally be this eighty-five student section. It
8 would be the same eighty-five students for all of them. They
9 would then be divided into two small sections which I think
10 Professor Raudenbush called half sections of about half that
11 size each. Then that same group of eighty-five would also be
12 divided into four legal writing classes. We call our -- we've
13 revised our legal writing program after I became Dean. It's
14 now call the legal practice program. It's a very intensive
15 skills focussed course. And it's taught by our faculty and
16 there are four sub-sections per larger section. So the other
17 twenty people in your legal writing section would also be among
18 the eighty-five in your larger section. And then there's a
19 elective course that students can take in the second semester
20 of first years. And that would be offered to the second- and
21 third-year students.
22 Q Do students, first year in their sections and in their
23 half sections, and these legal writing courses, end up to
24 getting each other pretty well?
25 A They end up getting to know each other very well. And
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1 they're the people you really spend the first year with.
2 It was actually interesting when I as -- as Dean I
3 spend a lot a time with alumni. And it used to be the way
4 sections were assigned, it used to be they were assigned
5 alphabetically. And so when I meet alumni and they say well,
6 I really got to know the other people in the M's of the
7 alphabet.
8 Q And is part of the purpose behind this to create a focus
9 and to actually create the intense learning atmosphere that you
10 want as an educational matter?
11 A Yes, that's exactly right. The idea is the more you get
12 to know someone the better you get to know them, and really
13 that's what makes them ticks, the deeper the conversations can
14 go about law.
15 MR. PAYTON: Is this a good time, your Honor?
16 THE COURT: It's a great time. It's a great time.
17 We wills stand in recess. I will say, I'm hoping twenty,
18 twenty-five minutes.
19 (Court in recess 11:00 a.m.)
20 (Court reconvened, 11:40 a.m.)
21 THE COURT: All right, you may continue.
22 BY MR. PAYTON:
23 Q Before we broke, Dean Lehman, we were talking about how
24 the atmosphere of the law school facilitated learning, and you
25 had made some reference to some things that happened outside
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1 those little formal boxes, outside the classroom. Does
2 learning take place outside of, you know, the first-year
3 section, moot court, outside the classroom?
4 A Certainly. Part of the theory of the first year of law
5 school is that when students leave a class, they're leaving not
6 necessarily a neat tidy package of answers to questions.
7 They're leaving with -- in many ways a longer set of questions
8 that they're suppose to pursue on their own and with classmates
9 outside of the classroom. So if you go to the cafeteria, the
10 cafeteria is filled with first years at lunch time who are
11 eating and talking at the same time about problems and
12 questions that are left over from class. And they form study
13 groups, and work together in study groups to try to understand
14 what's going on in each class, and they argue with each other
15 in study groups as well.
16 After the first year of law school there's then just
17 a wonderful super-abundance really of opportunities to explore
18 the law and legal institutions outside the classroom through
19 law journals. We have six different law reviews, law journals
20 that are all student edited right now. There's Substantive
21 Society. There's an Environmental Law Society where students
22 are interested in issues in environmental law. There's a
23 Criminal Law Society as well. There's the Federalists'
24 Society. And there are student organizations which are more
25 about integrating one's personal background into the practice
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1 of law. So there's the Black Law Students Association, the
2 Christian Law Students Association, the Jewish Law Students
3 Union. A lot of organizations like that where people try to
4 integrate, aspects of themselves into what it means to be a
5 lawyer as well.
6 Q I want to go back into the class, Dean Lehman. You were
7 present when Dean Syverud testified about classroom experiences
8 and learning advantages of having a diverse student body that
9 has significant numbers of -- you've heard all that.
10 A Yes, I was.
11 Q Dean Syverud was your colleague on the faculty for ten
12 years; is that correct?
13 A That's correct, yes.
14 Q And, in fact, once you became Dean you picked him to be
15 your associate dean; is that correct?
16 A Yes, that's correct.
17 Q Why did you pick him?
18 A I've known Kent for a very long time. I've known him
19 even -- we were in law school at the same time. And he is
20 obviously a very bright man, a very diligent man, a very
21 talented man. He also from -- we started teaching the same
22 year, and he was immediately recognized as one of the most
23 excellent teachers at the law school. He won the Hart Wright
24 Prize. And he became somewhat legendary very quickly. I felt a
25 little bit envious I must confess. I think I thought I was a
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1 good teacher, but not quite on his level.
2 When it was time for me -- Ed Cooper was stepping
3 down as associate dean, it was time for me to choose an
4 associate dean who would reflect my sense of direction for the
5 school and also would be effective. And as he testified, a
6 significant part of the work of the associate dean is really
7 about curriculum, teaching. And you just don't find someone
8 better than Kent in those areas so I wanted him in that role.
9 Q Let me ask you, you have taught every year that you have
10 been at the law school as well; isn't that correct?
11 A There was one year that I did not teach.
12 Q Through all of your teaching experience I want to ask if
13 your experience in the classroom is consistent with what Dean
14 Syverud says happens in his classroom with respect to the need
15 for meaningful numbers or critical mass of minority students in
16 the classroom to generate that discussion you've described.
17 MR. PURDY: Just for the record, your Honor, a
18 continuing objection to the extent --
19 THE COURT: Sustained in terms of continuing. He may
20 answer the question.
21 A Yes. What he described is consistent with my own
22 personal experience. I taught classes where there have been
23 meaningful numbers of minority students present, and I have
24 taught classes were there have not been meaningful numbers of
25 minority students present, and there is a systematic difference
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1 that one observes in the classroom and the dynamics in the way
2 students relate to each other --
3 BY MR. PAYTON:
4 Q Does it matter -- withdraw that.
5 In your teaching experience have you as a teacher
6 ever been surprised about the way race would come up in a
7 class?
8 A Yes, I been surprised as a teacher. I have been surprised
9 -- I was surprise as a student actually. The first time I was
10 surprised was actually as a student when race came up. That
11 was the beginning of -- my beginning in some ways.
12 Q Do you want to describe that? Well, the student
13 experience that I was thinking about was my first-year contract
14 class. I took a course from J. J White who is still teaching
15 at the law school, and a very good teacher. And I actually
16 remember this discussion even though I've done very little
17 contract since. It was about the Doctrine of Unconscionability.
18 There's a doctrine in contract law which says that sometimes a
19 contract cannot be enforced if their terms were unconscionable.
20 And the case that we were learning about this doctrine is a
21 case called Walker Thomas, someone versus Walker Thomas. And
22 it involved a woman who had bought an appliance in Washington,
23 D. C. The case ended up in the D. C. Circuit. And she bought
24 it with some kind of revolving credit agreement. And
25 ultimately the creditor wanted to foreclose and repossess the
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1 appliance even though she made lot of payments. And I think it
2 was Judge Bassalon who wrote the opinion, striking the contract
3 as unconscionable, and refusing to inforce it. And there was a
4 lot discussion in class. And one of my classmates made a
5 comment about how the customer was African-American and how the
6 one reason to not enforce the contract was this was part of the
7 pattern of exploitation of black people in the commercial area.
8 And one of my black classmates then took issue with that
9 characterization and described it as patronizing and said that
10 it assumed the woman who bought the appliance did not
11 understand what she was getting into. And everyone knew under
12 the circumstances that there were a few ways to get credit in
13 the particular community that she was talking about, credit
14 markets weren't functioning very well. And revolving credit
15 was one of the ways you could get credit, and it was a
16 calculated risk that everyone in that community, or at least in
17 the community that he had grown up was used to. And he said if
18 you rule Judge Bassalon's way the dynamic response is going to
19 be that this form of revolving credit will no longer exist, and
20 it will no longer be possible to have access to this. So this
21 was an unexpected response for me, and I learned something from
22 that.
23 On a teaching side, I teach -- as I've mentioned,
24 I've taught courses about urban poverty, and I've taught the
25 course called the American Urban Underclass. One of the
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1 subjects in discussion there was about drugs. And I think --
2 I wasn't particularly surprised, but I think the white
3 students in the class were surprised at how hard line some of
4 their black classmates were on drugs. They were expecting to
5 be -- they came to the class with an expectation that that
6 would not be the case.
7 Q I want to switch subjects here. I want to switch the
8 process that resulted in the adoption of the 1992 Faculty
9 Admissions Policy that we have been talking about a lot in this
10 trial. Dean Lehman, you served on the Faculty Admissions
11 Committee that Dean Bollinger put together in the fall of 1991;
12 is that correct?
13 A Yes, it is.
14 Q Were you at that time aware of there being any written
15 admissions policy?
16 A No, no, at that time I was not aware there was any
17 written admissions policy.
18 Q Did you at that time know how admissions worked at the
19 law school?
20 A I had a general sense how admissions worked. I applied
21 to law school, and I was admitted.
22 Q It worked really well for you.
23 A It was a good decision. No, I had a general sense of
24 what was described as the pool system that there be two groups
25 but some were admitted on the numbers, and some admitted
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1 without the certain numbers. Or you needed certain numbers to
2 get into the pool. I didn't have specific detailed knowledge of
3 how it was applied.
4 Q You're on the committee. The committee is now
5 functioning. You've heard various witnesses testify about that.
6 Professor Lempert testified at some length about how the
7 committee functioned, and I'm not going to go back over that.
8 Let me just focus on one part of the committee's operations.
9 Did you know Dennis Shields before you served on that
10 committee?
11 A No, I did not.
12 Q You met him through the committee?
13 A Yes, I did.
14 Q And what was Dennis Shields' contribution to that
15 committee from your point of view, just a committee member?
16 A He's made a lot of contributions over the course of the
17 year. The most significant from my prospective was that he
18 insisted that we start out our process by reading files, by
19 reading cases, if you will, and making decisions on the files
20 as we read them as a group.
21 Q Was what new to most of you?
22 A It was new to me. I never read files before. I don't
23 know if I was on a committee that read files before. I think
24 it was new for just everybody.
25 That was a very significant exercise for me because
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1 I guess I had -- I think I tried to do this on a starting to
2 read files. I had assumed maybe because of my background.
3 What I would do is I would start with the numbers the LSAT
4 score and the GPA and form kind of a presumption or a strong
5 presumption on an admit or deny based on the numbers. And
6 then I sort of modified that based on what else is in the
7 file. So you sort of look at the numbers and then you kind of
8 look through the file and adjust based on that. And that
9 turned out not to be possible, really. At least it wasn't the
10 way -- it wasn't for me to read the files in that way. They
11 are very dense. There's a lot of information in the files
12 and -- I understand, you know, all the students that we were
13 looking at seriously have something impressive about them,
14 very impressive about them. And they all relatively high
15 grades and test scores. And what you're looking at is within
16 that group what kind of a person this person is. And there's
17 -- before I read these files I had not realize how much you
18 could learn from looking at essays. I thought essays were --
19 never know who wrote them, or who or maybe got couched by
20 their parents or something like that so you should discount
21 them. Well, some essays you look at and, you know, they're
22 badly written, there's not -- even for people with high
23 grades. They're not in a percent grade, there's not sustained
24 argument. They're sloppy. You learn something about
25 temperament, I guess. You see lots of cross outs, and
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1 handwritten additions. It tells you something if the person
2 didn't take -- at least they didn't take the particular
3 process very seriously.
4 So what I got from Dennis Shields was intense
5 reading of the files.
6 Q Now, when you came to write the policy, the policy
7 actually includes the short description of some of the files
8 that you reviewed as a committee; is that correct?
9 A Yes, that's correct.
10 Q And you included that in the policy itself.
11 A Yes, that's right.
12 Q When you think back the files that you read let's just
13 take the ones that end up in the policy, do you think of oh,
14 yeah it's the 151 LSAT score and that's how I remember him.
15 And Y's blah, blah, GPA, I mean, how do you think about people
16 after you have read their if you will file?
17 A You form an impression of a person. And it's largely
18 formed on the basis of their experiences, their background,
19 what they've achieved, what they've been through. For some,
20 you know, you remember someone who had 4.3 summa undergraduate
21 experience. That sometimes be the most salient feature in the
22 file, their LSAT score. But those are unusual files. For
23 most, we're looking at people who are not summa cum laude
24 undergraduate, but very good undergraduate grades, you know, A
25 minuses and B pluses. And then you have people who have very
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1 high LSAT scores, but not perfect scores. And then you
2 remember what they did, where they came from, or what they said
3 sometimes in an essay, you know, the way they discussed the
4 book, or, you know, a book that meant something to them. We
5 obviously don't think about them as numbers. Even those little
6 precipe that you have in the policy -- in looking at Exhibit 4
7 a lot, as we all have -- the four cases in the policy X. Y. Z.
8 And I've been actually trying to remember who those people
9 were. I actually remember one of them, the second "X" one
10 pretty well because he did enroll and I got to know him after
11 he enrolled.
12 But what I did get a sense of those were just a
13 precipe for us. At the time, the committee, we knew a lot
14 more than putting those little paragraphs about each of those
15 four people now, most of it doesn't make a difference.
16 MR. PAYTON: I need a little guidance. I can keep
17 going.
18 THE COURT: It's up to you. Do you want to break
19 for lunch now? It doesn't make any difference to me. I have
20 nothing else. We can go to lunch right now, and reconvene at
21 1:15 and finish up this afternoon.
22 MR.PAYTON: Or I could go on for fifteen minutes?
23 THE COURT: Whichever you like.
24 BY MR. PAYTON:
25 Q Dean Lehman, we have heard some testimony about some of
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1 the discussions back and forth on the committee. And I want to
2 focus your attention on just a couple of areas, in particular
3 not go back over a lot of things. I believe we heard
4 discussions, about the possibility of identifying 11 to
5 17 percent as a target range for under-represented minority
6 enrollment at the law school that was included in one of the
7 drafts of the policy, do you recall that? Do you recall that
8 was testified to?
9 A I'm just hesitating on the word "target range." The
10 first draft of Professor Lempert's -- I did refer to the
11 numbers 11 to 17 percent. I think it was describing the past
12 -- the recent history of the law school. The recent range that
13 we had experienced and was describing it as exemplary of the
14 kind of meaningful numbers that create the kind of classroom
15 dynamic that we're looking for. That draft had those numbers
16 in it, but not that led to a significant discussion.
17 Q What's your memory how that discussion came up, the end
18 of the discussion as there are no numbers in the policy?
19 A Right. My --
20 PLAINTIFF: Excuse me, your Honor. I'm concerned
21 here if we're getting into hearsay about what others may have
22 said because they've had the opportunity to bring witnesses in
23 to talk about this, and all the committee members are faculty
24 members.
25 THE COURT: I think he's asking what his
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1 recollection was and why they didn't put numbers in.
2 MR. PURDY: As long as it's -- not specific
3 discussions.
4 THE COURT: Are you asking generally?
5 MR. PAYTON: He's a member of the committee.
6 THE COURT: He may answer.
7 A Well, I can say more directly what my views were the
8 numbers which haven't changed. I thought and this ultimately
9 was the view of the committee that it is not appropriate to put
10 any range of numbers into the policy. I came -- and this was
11 part of the discussion about Reagan and Reagan was of a
12 different view initially -- all of us, I think were of the view
13 that we needed to have a policy that was lawful. It's a bad
14 thing for a law school to adopt a policy that's not lawful --
15 BY MR. PAYTON:
16 Q Or anybody else?
17 A Or anybody else but I think especially a law school,
18 especially our law school. And that was part of our charge was
19 to make sure that our policy was legally appropriate, that we
20 would conduct our admissions system in a way that comported
21 with the law as we understood it. And we all understood the
22 governing authority to be Bakke. And it was quite clear in
23 Bakke, Judge Powell, and joined by four other justices that
24 struck down the Davis policy because it was a quota system and
25 my view was we should not do anything that could lead to moving
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1 in the direction of a quota system.
2 Now, Reagan expressed a different view. His view
3 was that these were just guidelines, this was permissible
4 under Bakke and this was perfectly fine and we could defend
5 it. But I wanted -- and all of the committee at the end I
6 think -- but I think all of us -- a lot of us were of the view
7 that we wanted to be conservative on this. And the risk that
8 exists when you put numbers in, even as a guidelines is that,
9 your know Dennis Shields might leave, there would be a new
10 admissions officer who would come in, who would not have been
11 party to the conversation, they would see these numbers and
12 they would register in their mind and become something like
13 that.
14 So I wanted the numbers out, Dennis Shields wanted
15 the numbers out, Ted Shaw wanted the numbers out, and Rick
16 Lempert quickly moved to agree -- he was opposed to taking
17 them out initially.
18 Q Okay. I'm going to move to another subject about the
19 committee's discussions and deliberations. Do you recall any
20 discussion that the committee had about an early draft of the
21 policy that talked about the delivery of legal services to
22 minority populations?
23 A I actually recall just from Rick Lempert's testimony that
24 he had a draft that referred to that as a goal for the policy
25 and that led me to -- and my memory is a little bit fuzzy on
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1 this, but my -- I have a sense that the reason that came out
2 was this part of the same discussion that Justice Powell's
3 opinion had in Bakke -- Davis had offered as a justification to
4 their policy the delivery of medical services to under-served
5 communities. And Justice Powell had said whether or not that
6 might in fact be a legitimate justification at some point, it
7 was not proven by facts on the record in that case, and
8 therefore it wasn't adequate. And so the question is well, you
9 know, could we design a policy that would promote that goal and
10 make that case for the legal profession. And, again, we didn't
11 have that case made in front of us at that time and it seemed
12 insufficiently cautious to go in that direction in drafting the
13 policy.
14 Q I'm jumping ahead, once we get to the spring of 1922,
15 April, the committee makes a recommendation that is the policy
16 you have, the faculty adopts it.
17 A Yes.
18 Q Were you at the faculty meeting?
19 A Yes, I was.
20 Q And the faculty adopted the policy and that is the policy
21 now?
22 A Yes, it is, sir.
23 Q Now a couple years later you become the Dean?
24 A Yes.
25 Q And this becomes something that you have some greater
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1 responsibility for, the Director of Admissions reports to you.
2 A Yes, that's right.
3 Q And reported to you starting in 1994?
4 A Yes.
5 Q Since you have been Dean, 1994, to right now has the
6 Admissions Office carried out the policy that is in Exhibit 4,
7 the 1992 policy?
8 A As best I know, yes.
9 Q Are there any aspects of the policy that aren't being
10 fully carried out to your satisfaction?
11 A There's one part. In the policy after the -- after the
12 initial discussion of grades and LSAT, there's then a
13 discussion of two circumstances where you might take people
14 with relatively low LSAT. In the first circumstance where
15 people -- where there's reason to believe that someone will out
16 perform the numerical predictors. So this is the first Example
17 X.
18 Q Reason to be skeptical.
19 A Reason to be skeptical, that's the language.
20 In the paragraph that follows or two paragraphs
21 shortly after that Example X there's a recommendation from the
22 committee where we thought it would be good to identify
23 students who are admitted in significant part because of this
24 consideration, this belief that apart from everything else in
25 the file there's reason to be skeptical of the numerical
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1 predictors of law school performance. There's a
2 recommendation that the Admissions Office should identify
3 those people and track their actual law school performance to
4 see if this kind of skepticism that you could have because
5 perhaps, for example, their undergraduate grades were better
6 than their SLAT score would have predicted, to see if that
7 actually does carry forward into law school. And that
8 tracking has not happened although I've asked my assistant
9 deans of admissions to make it happen.
10 MR. PAYTON: This might be a good time to break for
11 lunch?
12 THE COURT: We'll reconvene at 1:30.
13 (Court in recess.)
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19
20
21
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1 MR. PAYTON: Good afternoon. Before we begin, Your
2 Honor, I'd like to introduce John Pickering, a member of our
3 defense team.
4 THE COURT: Welcome. Nice to see you. My law clerk
5 thought it was you. It's a pleasure to have you.
6 BY MR. PAYTON:
7 Q Dean Lehman, I want to ask you some questions about the
8 actual policy that's Exhibit 4 in this, Exhibit 4.
9 MR. PAYTON: I don't want to be repetitive but there
10 are some things that I'm going to go over with the Dean --
11 THE COURT: That's fine.
12 BY MR. PAYTON:
13 Q Dean Lehman, do you have a copy of Exhibit 4 in front of
14 you?
15 A Yes, I do.
16 Q Let me just read the very first sentence of the policy.
17 "Our goal is to admit a group of students who
18 individually and collectively are among the most
19 capable students applying to American law schools
20 in a given years."
21 The Court, the Judge has raised some question about
22 how we go about defining, we, the law school, define who we
23 are. Are we selective, elite. Can you tell all of us how
24 this policy is defining who it is it wants to be the students
25 at the law school?
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1 A Well, this first sentence and the first paragraph really
2 in its entirety is about the history and tradition of the law
3 school. And it is something --
4 THE COURT: I want to hear this, but just so --
5 since it's addressing a question that I asked I am very
6 sensitive to the fact that the university and in particular
7 the law school have a right to define what their goals are and
8 who they want, and so forth. My question wasn't directed
9 towards that because you and I talked about -- even Justice
10 Frankfurt talked about the independence of school, my point
11 was that as that paragraph says the university has made a
12 choice, and that's their choice. And I'll hear it, and I have
13 no problems. That was my point --
14 MR. PAYTON: Oh, no, I'm taking it in exactly that
15 spirit, and I'm asking the Dean to sort of explain what the
16 law school is and how it defines itself. And this policy is a
17 definition --
18 THE COURT: I understand it. I've read it many
19 times.
20 A Michigan, I think is a very special place, and I feel
21 privileged to a member of the faculty, and to be the Dean of
22 the University of Michigan Law School. I think the first
23 paragraph is really talking about the history of the school.
24 It was founded in 1859. And over the course of the last
25 hundred and forty years, I think we have come to exemplify what
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1 a great public institution can be, what a great public law
2 school can be. I think when we look at what our graduates have
3 done in the world, not only in representing their clients but
4 -- in a significant part of representing in their clients, but
5 beyond that, in serving their communities, serving the bar,
6 serving society, we're very proud of what they have done, what
7 our graduates have done. And we don't think it's just because
8 of who they were when they came to the law school, we think
9 it's also because of what they've experienced at the law
10 school. I think most of us who graduated from law school feel
11 that something special happened to us while we were at
12 Michigan. And our goal is to make sure that we continue to
13 produce for society, and for the bar, graduates who exemplify
14 what a great lawyer can be. And we think that it's especially
15 important that there be public law schools that are at the very
16 highest level. I believe quite seriously that our society would
17 not be as good a society if the only way people could have the
18 very finest education would be to attend a private school.
19 Q Go to the second paragraph. The second paragraph begins.
20 "Collectively we seek a mix of students with varying
21 backgrounds and experiences who will respect and learn from
22 each other. We hope our students will find in their peers
23 both rich resources for learning and the kind of sustained
24 friendships that help in getting over hard times and make the
25 good times yet more pleasant. We hope professors will see in
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1 their students one of the rewards of teaching at this school."
2 What's this paragraph talking about?
3 A I really like this paragraph. This is about -- this is
4 about what kind of a community we are. This is about -- every
5 word in here says something special about our community. I
6 think the mix of students, the students respect each other, who
7 learn from each other. The fact that we are -- we're trying to
8 assemble a group of students who will find in their peers
9 people to learn from and sustain friendships. All of those are
10 important. We're trying to provide the kind of learning
11 environment for our students where they can be transformed
12 intellectually and socially.
13 Q Okay. We're talking about generally I think in this case
14 how the law school goes about selecting those students. In
15 selecting those students how important are factors like grades
16 and LSAT scores?
17 A They're quite important.
18 Q Are they the most important factors?
19 A It's hard to say, you know, what is the most important
20 factors, as I said when you're reading of files. But if I had
21 to identify the most important factors --I mean -- say about
22 grades, a gradepoint average is not a very significant standing
23 alone. I don't think you need -- we have in the file the
24 whole transcript, so we can see how a student performed as a
25 undergraduate in an entire curriculum. What choices they made
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1 about what courses to take, how difficult they were, and how
2 they performed, and what the pattern was over time, and all of
3 that. It's not just straight up or straight down. It can vary
4 from year-to-year, semester-to-semester. That's very
5 important. The transcript and where they went to school as an
6 undergraduate so we can sort of adjust for how difficult we
7 think the undergraduate curriculum was. All those kinds of
8 things are I think very important because the LSAT test is
9 important because it goes to this first part of the policy
10 about trying to predict as best we can how well someone will do
11 in law school classes.
12 Q If you go to page three, there's a sentence right there,
13 a sentence right in the middle of page three and I'm going to
14 read it out. It reads,
15 "Our most general measure do you see that?
16 A There's two sentences that begin --
17 Q Keep going.
18 "Our most general measure predicting graded law
19 school performance is a composite of" --
20 Let me just stop before I finish with that sentence.
21 What is graded law school performance?
22 A Well, there's ungraded. A lot of the way students
23 perform in law school is not graded. We - in most of our
24 classes, in fact, especially in the first year, classroom
25 participation isn't graded except in unusual cases usually. The
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1 grades come performance on the final exam. But students
2 perform in law school orally in class. And then outside of
3 class they perform by being on journals. They perform the moot
4 court competition, all of the different academic organizations
5 and nonacademic organizations. All of those are part of how a
6 person is as a member of the community.
7 Q I'm sorry, I must have misunderstood. The non-graded law
8 school performance is also important in someone's legal
9 training I take it.
10 A Yes.
11 Q Let's go back to this sentence.
12 "Our most general measure predicting graded law
13 school performance is a composite of an
14 applicant's LSAT score and undergraduate
15 gradepoint average..." do you see that?
16 A Yes.
17 Q Has there -- let me keep going.
18 "However, each of these measures is far from
19 perfect. The asserted connection between graded
20 law school performance and the likelihood of
21 success in practice is based more on faith and
22 anecdote than it is on rigorous research findings."
23 A Yes.
24 Q Has there been research on this link between graded law
25 school performance and the success in practice?
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1 A You mean before this policy was written or since then?
2 Q Since then.
3 A Yes, there's been some since then. There's been a study
4 that was done by Professor Lempert and Professor Chambers and
5 Jerry Adams. One of the things it does is look at the
6 connection between grades in law school -- just throughout
7 school, and different measures of success in practice.
8 Q And what kind of point is there?
9 A Very weak. I don't remember exactly what the percentages
10 are, but it's not very strong.
11 Q There are several places throughout the policy, we've
12 seen them and I don't think I need to direct you to them, but
13 there are several places throughout the policy that talk about
14 -- and I'm generally paraphrasing that someone who has higher
15 grades and/or higher test scores has higher chances off
16 admission.
17 A Yes.
18 Q Okay. If, in fact, the link that you just mentioned is
19 weak, why consider GPA and LSAT scores?
20 A Well, one of the things we're about is trying to predict
21 how people do in the practice afterwards, and contribute to the
22 world. I think -- let me break it up.
23 There are several reasons for this. One, is this
24 study that was done of Michigan graduates as people who had
25 all been through the Michigan experience and training after
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1 having been offered admission and had come in here. So that
2 group then goes off and is offered and does things that are
3 measured in the study.
4 The variation in that is small. That doesn't mean
5 that if we accepted randomly from our applicant pool that we
6 would then see the same results afterwards. So we're seeing
7 grades in law school for our students who are wonderful
8 students, excellent students, not correlating very much to my
9 variations afterwards.
10 I actually suspect if you tested further and further
11 with more refined measures you might find more of a
12 connection. As a teacher I kind of hope so because I think
13 that part of -- I know that what I grade for is real, it's
14 significant. And I actually think it's more significant for a
15 practice than these studies have found so far. But I think
16 it's significant.
17 But then even beyond that what happens during these
18 three years is important, too. And so part of what we're
19 grading -- part of what we're doing when we're grading, is
20 we're not -- is giving feedback. We are telling people how
21 you are doing on what you're doing so far. And people I think
22 learn from the feedback that they get from grades. So even if
23 it didn't correlate at all afterwards, I still think the
24 grades would perform a legitimate and helpful function.
25 Q You were present when Erica Munzel the current Director
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1 of Admissions and when Dennis Shields the preceding of Director
2 of Admissions said that in reviewing application files they
3 don't look at index scores, did you hear that?
4 A Yes.
5 Q Did you know that?
6 A Yes.
7 Q How did you know that, through the committee?
8 A Well, we didn't look at index scores per se I don't think
9 very much in the committee. But -- I mean, I've talked with
10 both Dennis and now Erica on how they look at individual files,
11 and I've seen files, a fair number of files, and the numbers
12 are not in the file.
13 Q Okay. On page seven of the policy, just go to page
14 seven. At the very bottom it reads.
15 "During the last two years" -- do you see where I
16 am?
17 A Yes.
18 Q "The Dean of Admissions has consulted with the
19 faculty on a portion of the admissions decisions.
20 This has allowed the faculty as represented by
21 its admissions committee to tell its Dean of
22 Admissions how a mix of faculty evaluate the
23 different kinds of strengths and weaknesses that
24 are found in application files."
25 Do you see that?
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1 A Yes.
2 Q Okay. How important is that in --
3 A It's applicant file, actually.
4 Q I'm sorry? I forgot what I said.
5 A Application files.
6 Q Applicant files, okay. How important is that?
7 Q My mistake, I meant.
8 A Your mistake is not important at all.
9 Q How important is it that the faculty play that role in
10 looking at files?
11 A I think it's very important. I think that our -- there
12 emerged over time kind of a specialization in the legal
13 academy. And so the people who are the best admissions
14 officers are not people who are faculty members. They don't
15 have experience as a faculty member. And so the best way for
16 an admissions officer to come to understand the values of the
17 faculty and what matters in the classroom, what they're looking
18 for in the classroom is to talk about specific cases. I think
19 this is like why we teach cases in law school, why we use the
20 case method. You learn about general principals by studying
21 specific examples in specific cases.
22 So I think -- there's actually two ways, but I think
23 it's about helping the Dean of Admissions to get a sense of
24 what the faculty considers significant and important for
25 teaching.
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1 And it's also a good way I think to keep the faculty
2 in touch with what's happening in the administration of the
3 law school. The faculty sets policy. They then entrust it to
4 me, and to all the administrative staff to faithfully execute
5 that policy. I think it's helpful for them to get a more
6 grounded sense of what it actually turned out to be on a daily
7 basis.
8 Q I want to go to page eight of the policy?
9 A Yes.
10 Q At the bottom of the page. I'm going to read that
11 paragraph so you can see where we are in the policy.
12 "As we have noted, some students will qualify for
13 admission despite index scores that place them
14 relatively far from the upper right corner of the
15 grid. There are two principal types of reasons
16 for such admissions. First, there are students
17 for whom we have good reason to be skeptical of an
18 index score based prediction."
19 Do you see that?
20 A Yes.
21 Q This is actually the part of the policy we were referring
22 to before we broke where you said that you wanted there to be
23 more of an analysis of how these students did; is that correct?
24 A I was referring to the -- there's a paragraph on page
25 nine in the middle.
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1 Q That's the middle paragraph on the next page?
2 A Yes, that's right.
3 Q I'm going to go to the bottom of page nine. It reads.
4 "The second sort of justification for admitting
5 students with indices relatively far from the upper right
6 corner is that this may help achieve that diversity which has
7 the potential to enrich everyone's education and thus make a
8 law school class stronger than the sum of its parts. In
9 particular we seek to admit students with distinctive
10 perspectives and experience as well as students who are
11 particularly likely to assume the kinds of leadership roles in
12 the bar and make the kinds of contributions to society
13 discussed in the introduction to this report."
14 Do you see that?
15 A Yes.
16 Q Is there a particular set of experiences or perspectives
17 that this part of the policy is looking for?
18 A A particular --
19 Q Are there particular perspectives or experiences that
20 this part of the policy is looking for?
21 A This part of the policy is talking about the diversity,
22 about the range of -- the range of experiences that makes --
23 the language, "the whole greater than the sum of its parts"
24 makes the law school class stronger than the sum of its parts.
25 This is not about any particular kind of diversity. This is
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1 about the whole range of perspective and experiences. It's the
2 perspectives and experiences that inform the study of law in
3 legal institutions. That's what we're interested in. We're
4 interested in the kinds of perspectives and experiences that
5 will -- could -- there's no guarantee, but there could lead
6 people to say something surprising, I guess about law in the
7 classroom.
8 Q Before we get to the next section, which we're going to
9 spend some time on, I want to ask how important it is that the
10 student body contain this general diversity of experiences,
11 backgrounds, and perspectives?
12 A Oh, it's absolutely essential. It's absolutely essential.
13 Q Now, I want to talk about -- go to page 12. I'm just
14 going to introduce where we are on page 12. We've all heard
15 this several times, at the very top.
16 "There is, however, a commitment to one particular
17 type of diversity that the school has long had and which
18 should continue. This is a commitment to racial and ethnic
19 diversity with special reference to the inclusion of students
20 from groups which have been historically discriminated
21 against, like African-Americans, Hispanics, and Native
22 Americans who without this commitment might not be represented
23 in our student body in meaningful numbers. These students are
24 particularly likely to have experiences and perspectives of
25 special important to our mission."
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1 Is this commitment to this as it says, "one
2 particular type of diversity" different or separate from the
3 general diversity we've just discussed?
4 A No, it is a part of the general commitment to diversity
5 that we've discussed. It is something that we -- we ask the
6 Dean of Admissions to pay attention to diversity. And we say,
7 pay attention to diversity of the class and all its dimensions.
8 And then we say there's one particular type that we
9 are singling out and the reason for that, the reason for
10 mentioning it especially comes towards the end is we're
11 describing a kind of diversity where without this commitment
12 might not be represented in our student body in meaningful
13 numbers.
14 So we're here talking about diversity generally.
15 And then there's an example of where we say if we didn't pay
16 attention this kind of diversity might not happen and would
17 not be likely to happen by accident.
18 Q Now, the sentence that says -- which includes, "groups
19 which have been historically discriminated against," what about
20 Asian Americans They've been historically discriminated
21 against; haven't they?
22 A Yes but -- there's two parts here to the reference of
23 African-Americans, Hispanics, and Native Americans which says,
24 "from groups which have been historically discriminated
25 against, like, African-American, Hispanics and Native
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1 Americans, who without this commitment" -- like I mentioned
2 before -- "who without this commitment might not be represented
3 in our student body in meaningful numbers." That's not the case
4 with Asian Americans.
5 The second half -- the first half, yes, Asian
6 Americans have been historically discriminated against like
7 other groups in society.
8 Q What is the significance of groups that have been
9 historically discriminated against? Why is that some special
10 focus here?
11 A It's because we're a law school, and we're talking about
12 the law in a legal institutions. And as we teach about a whole
13 range of -- there are courses in areas of law about
14 discrimination per, se. But as we're teaching about the law
15 more generally there are a variety of issues which are
16 influenced in part by the experience of historic
17 discrimination. Sometimes, for example, I teach in areas about
18 the labor market and the way people act in the labor market.
19 And sometimes people assume that people will always act in
20 their own rational self-interest. And they will look at
21 behavior and say, well, gee, that seems to be self-destructive
22 behavior, that seems not rationally self-interested behavior.
23 And one of the reasons that explains it is that this person has
24 grown up in a context where they have been told, you know,
25 there is current discrimination in society, there's been
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1 historic discrimination in society. So your level of trust
2 should be lower than what it would be if you hadn't had that
3 experience. And that then can shape people's discussion and
4 reaction to a whole variety of legal doctrines.
5 Q Let me go to the next paragraph as we've also spent a lot
6 of time on what's in the next paragraph. It begins.
7 "Over the past two decades, the law school has made
8 special efforts to increase the numbers of such students in
9 the school. We believe that the racial and ethnic diversity
10 that has resulted has made the University of Michigan Law
11 School a better law school than it could possibly have been
12 otherwise. By enrolling a `critical mass' of minority
13 students, we have ensured their ability to make unique
14 contributions to the character of the Law School; the policies
15 embodied in this document should ensure that those
16 contributions continue in the future."
17 What does critical mass mean?
18 A I agree with much of what Dean Syverud said when he
19 testified this morning. I think that the key reference here --
20 well, there's two references that are important to me. One is
21 in the paragraph before, the reference to meaningful numbers.
22 And then that second half of the sentence where it says, "we
23 have ensured their ability to make unique contributions to the
24 character of the Law School." It is the case that without
25 meaningful numbers of minority students, it's hard for minority
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1 students to make unique contributions as oppose to making
2 contributions that leaves them as a spokesperson for their
3 race.
4 What to me a critical mass entails is having a
5 sufficient presence of minority students that the classroom is
6 not flat. That the classroom is hot, where people are talking
7 and engaging openly, candidly as individuals, and drawing on a
8 broad range of backgrounds and experiences which are personal.
9 That's when the classroom is working really, really. well.
10 So what's the critical mass of minority students is
11 having a sufficient minority students that in those areas, in
12 those dimensions we -- you're talking about issues which
13 relate to race. And as we've seen that can be such a broad
14 range of issues. Then you have that kind of open and engaged
15 honest dialogue.
16 Q Is critical mass a particular number of under-represented
17 minority students?
18 A No, it's not a particular number.
19 Q Is it a particular percentage?
20 A No, it's not a particular percentage Is it a particular
21 range of numbers or range of percentages of under-represented
22 minority students? It's not a particular range of numbers or
23 percentages.
24 Q Well, how do you know when you get there?
25 A When you get there, when you have a critical mass?
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1 Q Right. How do you know when you have the critical mass?
2 A You know when you have a critical mass when you see the
3 kind -- it is connected to context. And in a given context,
4 sense a critical mass when you have -- what we might think of
5 as kind of break-through movements in the class, break-through
6 conversations where people say I heard something new today that
7 shook a pre-conception of mine. Or I heard a perspective that
8 I might not have had any pre-conceptions at all, but I learned
9 something different. I learned a different perspective on a
10 legal problem or a legal issue that now going forward I am
11 going to incorporate into my tool kit so that I can try now to
12 see the world through now the eyes of a different classmate in
13 a different way.
14 So you recognize it through the interactions of
15 people.
16 Q Is it important for there to be a critical mass of
17 under-represented minority students in each class?
18 A Ideally you'd to like have a critical mass of
19 under-minority students in every class. That would be ideal.
20 Q I guess you asked when Professor Raudenbush testified,
21 and he took those categories what we talked about in the
22 first-year section, half section, moot court, moot court
23 competition, et. cetera, and tried to come up with some view
24 of that statistically given numbers of under-represented
25 minorities students in the student body. Was that helpful in
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1 trying to understand where the law school may be with respect
2 to critical mass?
3 A It was, actually. I hadn't studied his expert report
4 actually before he testified so I saw the tables to refresh in
5 the courtroom. And I think they actually captured something
6 significant in a statistical way that I think most of us in the
7 school know impressionistically from our experience.
8 I do think that the number three is significant. I
9 think that the dynamics are different when there is, say, one
10 African-American students in a class, versus two, versus
11 three. I think at three or more you start to see a different
12 kind of conversation, more opportunities for differentiation,
13 disagreement, individualization of the students.
14 And I think what Professor Raudenbush's study did
15 was it connected the number three in the small, individual
16 classes, to the overall general class composition as a whole.
17 And I thought that was actually helpful.
18 Q Okay. Now, when the Director of Admissions is -- strike
19 that.
20 Since you've been Dean have you ever had a
21 conversation with the Director of Admissions Mr. Shields or
22 Ms. Munzel where you said get me that number of
23 under-represented minorities?
24 A No.
25 Q Or get me that percentage of under-represented
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1 minorities, or that range?
2 A No.
3 Q Have you ever had discussions with them about what you
4 understand to be the dynamics in classes given what's going on
5 from members of the faculty?
6 A Yes, yes, I try to give -- when faculty colleagues talk
7 to me and say I like this, or I don't like this, or something,
8 I try to pass that on to the Dean of Admissions.
9 Q Have you ever been in a circumstance since you've been
10 Dean where in your judgment that while talking to your faculty
11 you have more than a critical mass of under-represented
12 minority students?
13 A Let me try to say what I think I understand you to be
14 asking when you say more than a critical mass. What I would
15 understand that question to mean is are we at a point where --
16 there would come a point -- there's a point where adding
17 additional racial and ethnic diversity to the class is still in
18 a token range and isn't getting you the educational benefit
19 that you want.
20 Then there's this period which we think of as --
21 using the term from the policy "critical mass" meaningful
22 numbers where additional racial and ethnic diversity of
23 classes is having a payoff in the number and frequency of
24 educationally committed interaction.
25 Then there comes a kind of period of diminishing
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1 marginal, the term, where you say the additional benefits
2 that come from additional members of historically --
3 under-represented minority groups, the additional educational
4 benefits for the entire class decline. So have we been in a
5 -- has any faculty ever said to me I think we're in that mode
6 now, where we're seeing diminishing marginal returns to the
7 university, no, no one ever said that to me.
8 Q Into the policy there's attached a grid. Do you know
9 what I'm talking about?
10 A Yes, yes, I do.
11 Q Was there a time when you were Dean when there were grids
12 -- not this grid -- but grids like this which seemed to give
13 descriptions of prior year admission decisions broken out by
14 more than simply total class or did it by race?
15 A Yes, yes, there were.
16 Q And what happened to those grids?
17 A I asked that those grids no longer be produced,
18 calculated, broken down by race.
19 Q Now, I believe this was in 1995, why did you do it?
20 A Well -- I have to think what the year was. I assume
21 you're right about that.
22 The reason why I did it, is -- well, it actually
23 connects back with what I was saying about numbers in the
24 policy when I was a member of the committee. One could look
25 at grids such as these -- one can -- even without having them
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1 on the basis broken out by race, you can look at a grid like
2 this and you can misunderstand what this is doing. You can
3 look at the grid here which is not broken out by race, it's
4 just all applicants and you can get the sense that this is
5 intended to guide decision-making for the Office of
6 Admissions. They're suppose to be admitting a certain
7 percentage, you know, thirty-six out of four hundred and
8 ninety-nine, or whatever, in SLAT score, thirty-eight to
9 forty-one, and GPA of 3.5 to 3.74.
10 Q Was this used to make admissions decision?
11 A This? No. This grid was never used to make decisions.
12 No, that's not the purpose of it.
13 The purpose of attaching this to the policy
14 initially was to give a visual representation to the idea that
15 is in the policy that says higher grades matter, higher
16 undergraduate grades matter; higher SLAT scores matter in our
17 admissions policy. And the higher your grades and the higher
18 your SLAT score -- on the grid you can see it moves you
19 farther towards the top. And then in the aggregate since they
20 matter individual cases what you would expect see in the
21 aggregate is a higher percentage of offers to individuals, the
22 higher their grades and SLAT scores. Or as we say for
23 shorthand in the policy the higher their index score.
24 And by the way you asked me earlier about -- was I
25 surprised that index scores aren't used per se, index scores
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1 aren't used per se, the grades and SLAT scores are used. So
2 you know, the score per se isn't used, but the elements of it,
3 about which we have much more rich detail are in.
4 But another reason why I wouldn't want to have this
5 be used as per se, as a decision-making tool, is that these
6 grades on the side are -- they don't show -- you know, some
7 undergraduate schools have a lot of grade inflation, and some
8 undergraduate schools don't have a lot of grade inflation.
9 And, so, if we can't pay any attention to where
10 somebody went to school and just looked at grades we would be
11 missing a lot of relevant information.
12 So that's why as a decision-making tool this isn't
13 used as a tool. It is used to describe for us how the class
14 is along these dimensions in any given year, and what our
15 decisions have been.
16 But given all that, given that it's not useful as a
17 tool, my concern was twofold: One, that if we continued to
18 produce these tables by race, and they weren't used, they
19 would be misunderstood to mean, or to suggest, or to incline
20 that we have two different decision-making tools when, in
21 fact, it's not a decision-making tool for anyone. But also
22 just having them there can reinforce I think -- sometimes in
23 people, an approach to a file that is less than
24 individualized. And it could include -- it could lead an
25 admissions officer to maybe even subconsciously start to use
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1 these as decision-making tools which is not what we want.
2 Q Dean Lehman, what would happen if the law school couldn't
3 use race or ethnicity as a factor in its admissions process?
4 What would happen to the student body?
5 A Well, we actually know pretty well what would happen
6 because we have a peer school, a law school, which is the
7 University of California Berkeley, Boalt Hall. Boalt Hall is
8 in virtually every respect Michigan's counter-part on the West
9 Coast.
10 Q What do you mean by that?
11 A It's a great public law school. They are committed to
12 public values. They're committed to the citizens of California
13 in the way that we are in Michigan. And they have outstanding
14 a faculty. Really, among the best law professors in the world
15 teach there.
16 And until the Regents' policy was adopted there,
17 their student body looked very, very similar to ours. There
18 was some difference, but very, very strong. And their
19 graduates go on to do great things in the world. Since the
20 adoption of the Regents' policy and ultimately Proposition
21 209, as a voter issue in California we had seen dramatic
22 reduction in the number of under-represented minority students
23 at Boalt Hall. And that has persisted over time. It's fallen
24 to what I would describe as token level. And -- as Engler
25 described as token level. In fact, the first day of the
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1 trial, when I went out in the hallway, there were students
2 from Boalt Hall who had come out here to be here for the trial
3 and I talked with them. They confirmed what I heard from the
4 prior dean.
5 In response because the faculty at Berkeley thinks
6 about pedagogy in the same way that we do, they have been
7 trying very hard to come up with a policy that is truly race
8 blind, but nonetheless, produces a racially diversed student
9 body with respect to under-represented minority students. So
10 is UCLA, so is Texas. And these are very smart people. They
11 are doing everything they can and they have not gotten beyond
12 token levels of enrollment of African-Americans at either of
13 those schools.
14 Q Dean Lehman, what about recruiting more for
15 under-represented minority students so that you get more into
16 your applicant pool?
17 A We do everything we can to recruit under-represented
18 minority students into our applicant pool. We send our
19 admissions team, our Dean of Admissions, and members of her
20 staff out around the country to talk up Michigan. They go to
21 historically black colleges to try to encourage applications
22 and I believe we have -- we do -- I don't know of anything more
23 we can do on the recruiting of applications. And then after
24 people apply, we recruit very heavily, and especially after we
25 offer admission. Faculty make phone calls. Students make
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1 phone calls. We invite the students out to campus to see the
2 school, to talk to students and faculty about what their
3 experience is like. We write letters, make phone calls. I do
4 not believe more recruiting is in any way an answer.
5 Q Dean Lehman, do you believe it is possible to receive an
6 excellent legal education in a law school environment that is
7 not racially and ethnically diversified?
8 A I do not believe it's possible to receive an excellent
9 legal education in such an environment.
10 Q Let me ask you this, Dean Lehman, what's the extent to
11 which the University of Michigan Law School takes race and
12 ethnicity into account in its admissions process?
13 A Well, on the individual level the extent to which we take
14 race and ethnicity into account is actually going to vary by
15 individual. And it's going to depend on the admissions file,
16 and what they say in their essays about who they are, and the
17 extent to which race is part, their experiences. So for some
18 students it can be very significant, and for some students not
19 so significant.
20 In the aggregate when you talk about the class as a
21 whole, we take race into account enough to achieve a critical
22 mass, if you will, a meaningful number of under-represented
23 minority students enrolled in the class as long as we can do
24 so consistent with the overriding objective of ensuring that
25 we only enroll extremely qualified and talented students.
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1 So if we were forced to make a choice between the
2 meaningful numbers and the critical mass question, and the
3 high-quality student question, we would go towards high
4 quality. Right now, we're not forced to make that.
5 Q THE COURT: I'm sorry, if you were forced to make
6 that decision you would go high quality?
7 THE WITNESS: If we thought that in order to have a
8 critical mass of students, of minority students enrolled in
9 the law school, we would be required to admit students who we
10 do not believe could be the intellectual peers of their
11 fellows in the classroom. We would then fall short of having
12 a critical mass and under-represented --
13 THE COURT: It's more important to you to admit
14 students in that category as oppose to the critical mass?
15 THE WITNESS: Yes.
16 BY MR. PAYTON:
17 Q Does the law school operate a double standard?
18 A No -- well, let me say -- I mean if -- I assume you're
19 not asking do we take race into account as a factor?
20 Q Take race into account. What I'm asking -- the second
21 question which is: Is there a double standard when the law
22 school evaluates this application file and this application
23 file, and this application file?
24 A No.
25 Q Dean Lehman, you were present when Lee Bollinger, now
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1 President of the University testified that when he became Dean
2 one of his priorities was to revise, completely revise the
3 process by which the law school makes decisions about admitting
4 or not admitting students, and you were on the committee that
5 he put in place to do that. You're now the Dean. Do you have
6 any concerns as Dean about how admissions decision are made at
7 University of Michigan Law School?
8 A As Dean, I have no concerns about how admissions
9 decisions are made at the law school. I think -- I think this
10 is a fantastic admissions policy. I'm proud to have
11 participated in drafting it. I have talked about it with other
12 law schools. And have said, I believe, that this policy
13 achieves what we are -- I think almost all the law schools are
14 interested in achieving in terms of educational environment and
15 atmosphere. And it does so in a way that is conservative. It
16 is in my view really constitutional, and that's an important
17 value as I mentioned earlier for law schools. I think this is a
18 terrific policy. And I think that we implemented exactly as it
19 was intended to be implemented.
20 MR. PAYTON: No further questions.
21 MS. MASSIE: Could we take a short break?
22 THE COURT: We can take a break. This will be our
23 afternoon break.
24 MS. MASSIE: Great.
25
147
1 (Court back in session.)
2 THE COURT: Okay. Dean, let me just
3 clarify one question that I asked before. I don't
4 remember the exact question, a different court
5 reporter too.
6 But it had to do with the relative
7 importance that you as the Dean place on if you had
8 to give one or the other, either the academic
9 standing, I'll use that in a very broad sense.
10 The sense of qualifying good
11 qualified students versus critical mass, and your
12 answer was that good qualified students would take
13 precedent over critical mass?
14 A. Yes, that's actually in the policy itself. It says
15 there is one absolute baseline criterion upon which
16 we will not compromise. We don't want to admit
17 students who we think won't be able to make it.
18 It's not right and it's not fair.
19 THE COURT: I understand that. But
20 assuming that you had students that could all
21 probably make it, but you had to have a--and I know
22 this is not consistent with what the statistics and
23 what Professor Raudenbush and so forth testified to,
24 but in summation, assuming all students had that met
25 that criteria that at least either based upon grades
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1 or based upon all the other criteria other than race
2 and you had to make a decision versus that versus
3 critical mass, that takes more precedent than
4 critical mass?
5 A. I'm not quite sure I'm following the question, your
6 Honor. I think what I've been trying to say is
7 that, to make it at Michigan you have to be really
8 good.
9 We reject two-thirds of our
10 applicants, and a lot of those people are very good
11 people. To make it at Michigan, you have to be
12 really good.
13 And the policy says we will not--the
14 idea is not to knowingly admit anyone who we think
15 is going to have trouble, you know.
16 THE COURT: Being really good.
17 A. In that level.
18 THE COURT: But that's more important
19 to you to have students that are really good in
20 terms of then to have perhaps students that are
21 really good, but not quite as really good and have
22 critical mass?
23 A. In an individual case you're going to--it's not so
24 clear.
25 THE COURT: If somebody said to you
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1 you can have all really good students and you may or
2 may not have critical mass, you may but you may not
3 also.
4 Or you can have really good students,
5 maybe not in terms of the exact ones you would want
6 to, but students that would probably succeed and be
7 successful in your school, but the critical mass
8 would be there but it wouldn't be the same level.
9 You're saying it's the student
10 academically that can achieve this success that
11 you're looking for as opposed to critical mass, if
12 you had to make that decision?
13 A. I think I'm saying, yes. I think what I'm saying is
14 if in order to get to critical mass of
15 underrepresented minority students, we would have to
16 be admitting students who we thought there was a
17 significant chance they wouldn't make.
18 THE COURT: That's significant.
19 There's a chance that they would make it, but it's
20 not as good a chance significantly that they
21 wouldn't, obviously you wouldn't take them, it
22 wouldn't be fare to them or to the school.
23 But that there were ones that were
24 kind of on the cusp, but allowing them in would
25 certainly not reach the same level that perhaps the
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1 other students will?
2 A. Well, there I mean if we're limiting ourselves to
3 students where we don't think there's a significant
4 chance that they won't make it, then diversity of
5 the class is a significant pedagogic value, and so
6 we will make trade offs in that range.
7 Once we're at the level where--and
8 it's a high level. But once we're at the level
9 where we think there's not a significant chance that
10 someone is going to have serious academic
11 difficulties, then at that point our interest in
12 having a critical mass of underrepresented minority
13 students it's comparable to our interest in having a
14 diverse student body generally.
15 In that we will say, well, this is
16 someone who will add significantly to the
17 educational experience.
18 THE COURT: But the bottom line is,
19 you would rather be a selective law school, you
20 think it's more important to be a selective law
21 school then to have critical mass if you can't have
22 both? Assuming you can't have both.
23 A. Well, to be a selective--actually I try not to use
24 the word selective in the same way--
25 THE COURT: (Interposing) It's not
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1 my word, I've only read it in the pleadings that
2 have been filed in this case.
3 A. Sure. I think we are forced to be selective because
4 we have many more people who want to come then we
5 have room for, so we have to make selections.
6 But I think beyond that we choose to
7 make selections in ways that, say, we want to have
8 really excellent students. And so that piece of our
9 identity, that commitment to being true--
10 THE COURT: That kind of student.
11 A. That kind of student excellence, that is prior in
12 the policy. That's the dominant consideration.
13 THE COURT: Thank you.
14 MR. PAYTON: Your Honor, if you would
15 let me ask three or four questions along the same
16 line.
17 THE COURT: Yes, you may. Let me ask
18 this because you may have more than three or four
19 after that.
20 At Boalt Hall when they passed the
21 Proposition and I heard your testimony. Did they
22 also have a requirement out there that they have to
23 give the residents--don't they have a different
24 policy for residents in California than we do here
25 in Michigan?
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1 A. I think it is different. I know they have a much
2 larger residents enrollment, but I also know that
3 it's much easier to become a California resident.
4 It's easier to sort of move in and
5 become a California resident and get residency
6 status in California then it is here.
7 THE COURT: But they have some kind
8 of very strong residency preference as opposed to
9 just a preference, if you know?
10 A. That's consistent with what I hear, but I don't
11 actually know for sure what it is.
12 THE COURT: And my last question is,
13 we heard some testimony somewhere down the line,
14 not from you but from somebody, that the dean is the
15 one that determines, you know, give or take what
16 percentage the class should be Michigan residents.
17 A. Yes.
18 THE COURT: And the testimony was
19 somewhere around a third give or take?
20 A. Yes.
21 THE COURT: Just curious, perhaps
22 more as a taxpayer than as having to do with this
23 case, how do you make that determination?
24 A. The percentage that I've been saying to Dean Munzel
25 in the last couple of years is that, at least 25
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1 percent and if we can get closer to a third, that's
2 great.
3 And I make that judgment, I guess, in
4 part out of some kind of overall sense of fairness.
5 On the one hand we're a public institution, we are a
6 Michigan institution and I believe that we need to
7 have a significant representation of Michigan
8 students there, kind of to be part of the character
9 of the school.
10 To be able to use to make illusions
11 and metaphors that are Michigan based, I think you
12 want them to still work in the classroom at some
13 level.
14 Why so low, why not a higher
15 percentage?
16 THE COURT: That would be my thought,
17 that why so low?
18 A. The reason for me has to do with the changing fiscal
19 and financial structure of the law school over time.
20 In the 1980s, the state subsidy for the University
21 declined in real terms. And some parts of the
22 university, including the law school, stopped
23 getting any significant pass through of state
24 subsidy.
25 And so our response was to turn more
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1 to our alumni and ask them to support us the way
2 alumni of private schools actually support them.
3 And they have responded.
4 And so what we have gone to is kind
5 of a parody, I guess, between state residents and
6 alumni. Not 25 percent alumni children or anything
7 like that.
8 But what we have gone to it to say,
9 we will provide state residents a break on tuition,
10 not a big break but some break, about $6,000 a year.
11 We will still not be residency blind, we will still
12 try to make sure we get to at least 25 percent, and
13 preferably somewhat more than that.
14 But then all of that sort of implies
15 a certain level of competitiveness for the
16 residents. And we evaluate alumni children
17 according to that level of competitiveness.
18 In other words, we ask the question
19 if this person who is the child of an alumnus of the
20 law school were a Michigan resident, would they get
21 in or would they not get in, that is the standard
22 that we apply.
23 THE COURT: Okay, thank you.
24 MR. PAYTON: This is going to be a
25 few questions.
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1 BY MR. PAYTON:
2 Q. Dean Lehman, I want to put the first part of the
3 discussion you just had with the judge in sort of
4 the context of how the policy defines it.
5 A. Yes.
6 Q. I'm not going to ask you to look because I think we
7 all now remember. On page eight there's a reference
8 to the two categories of students that the law
9 school will look at, even though they don't have
10 grades or test scores up in the right-hand corner.
11 And the first is, those students for
12 whom we have some reason to be skeptical that those
13 are going to predict their performance, do you
14 remember that?
15 A. Yes.
16 Q. That group of students, is that a group of students
17 that includes all races, all ethnic groups?
18 A. Yes.
19 Q. Simply that applies to all applicants potentially?
20 A. All applicants.
21 Q. Okay. Now, the second category, general category
22 which is on page nine is, and as it says, it is
23 students with indices relatively far from the upper
24 right corner that that may help achieve that
25 diversity which has the potential to enrich
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1 everyone's education, and thus make the law school
2 class stronger than the sum of its parts, do you
3 remember that?
4 A. Yes.
5 Q. It's on page nine. Is that general category a
6 category that includes all students?
7 A. Yes.
8 Q. All races?
9 A. All races.
10 Q. And it is within that second general category that
11 there is this particular emphasis on racial and
12 ethnic diversity as that relates to underrepresented
13 minority students?
14 A. Yes, that's correct.
15 Q. So, the policy has two general categories of
16 students that they're all excellent students, but
17 they're still, you know, you don't require--you
18 don't look for them up in that upper right hand
19 corner because you want the diversity that they
20 bring to your class?
21 A. Yes, that's right.
22 THE COURT: Thank you. Intervenor.
23 CROSS-EXAMINATION
24 BY MS. MASSIE:
25 Q. Dean Lehman, the first couple of questions I want to
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1 ask you have to do with some comments that
2 Dean Syverud was making earlier.
3 I think you were here for his
4 testimony, is that right?
5 A. Yes, I was.
6 Q. He was talking about the contact that White students
7 at Vanderbilt have typically had with members of
8 other races, probably in particular Black people,
9 but in any Non-white people, do you recall that?
10 A. Yes, I do.
11 Q. And do you recall what he said?
12 A. Not precisely.
13 Q. I'm sure I won't either, but I think he said
14 something about there was a range of different
15 levels of experience. That there was a fair number
16 of white students who came from relatively small
17 towns and cities in the south, where there was a
18 fair amount of interracial contact?
19 A. Yes, I remember that.
20 Q. Is that consistent with students at Michigan so far
21 as you know?
22 A. Well, we don't have very many students who come from
23 small southern towns, that part is different. But
24 the general point about there being a range of
25 background histories of contact and exposure to
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1 students of other races, that is consistent with
2 Michigan, yes.
3 Q. Are you aware of any studies that suggest that most
4 white Michigan law students have had substantially
5 less contact with members of other races than what
6 Dean Syverud was suggesting for Vanderbilt?
7 A. The study that I know of Michigan law students that
8 talked about this question, and I can't recall the
9 details. Was Gary Orfield's study of Harvard law
10 students and Michigan law students that was done, I
11 guess, about two years ago.
12 And I believe the conclusion of that
13 study was that there are significant numbers of
14 Michigan students who come to the law school with
15 very little prior contact with people of other
16 races. That's my impression.
17 Q. Something like 80 percent other students at Michigan
18 have little or no contact with anybody of a
19 different race is at all meaningful, is that
20 consistent with your recollection?
21 THE COURT: Sustained. Professor
22 Orfield is going to be here, so let's get it from
23 him.
24 MS. MASSIE: I'll be sure to ask him
25 about it.
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1 THE COURT: I'm sure you will. I
2 don't want to put the dean on the spot.
3 A. Thank you, your Honor.
4 MS. MASSIE: Understood.
5 BY MS. MASSIE:
6 Q. There's been even before this afternoon, there's
7 been a fair amount of discussion of Michigan
8 residency and the law school's commitment to enroll
9 substantial numbers of Michigan residents?
10 A. Yes.
11 Q. And, in fact, the Plaintiff's attorneys have
12 suggested a kind of conflict or comparison between
13 consideration of race and consideration of residency
14 through the use of some of Professor Larntz's grids,
15 were you here in the courtroom for some of that
16 cross-examination?
17 A. I was here for all of the cross-examination of
18 Professor Larntz.
19 Q. Were you here for the cross-examination of Professor
20 Lempert when Mr. Purdy provided Professor Lempert
21 with grids of white Michigan residents, and the
22 grids we have become familiar with, the LSAT on one
23 axis and GPA on the other. And on the other hand
24 out of state, Black, Latino and Native American
25 applicants?
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1 A. Yes, I was here for that.
2 Q. Your commitment as a Dean and a commitment of the
3 law school to the people of the state of Michigan,
4 extends to all of the people of the state of
5 Michigan, not just the white people of the state of
6 Michigan, is that true?
7 A. Yes, that's true.
8 Q. And there's a substantial Black minority in the
9 state of Michigan, true?
10 A. Yes, that's true.
11 Q. And Michigan has one of the top ten state
12 populations of Native Americans in the United
13 States, isn't that true?
14 A. I don't know it to not be true, I couldn't have told
15 you that before you asked the question.
16 Q. But in any event, the law school's commitment is to
17 all of the people of the state of Michigan?
18 A. Yes, it is.
19 Q. Now, within the state of Michigan, if you know,
20 there's a very large Black school district in the
21 heart of which we are located right this moment,
22 isn't that right?
23 A. Yes, that is true.
24 Q. And how many of the 12,000 or so young people
25 overwhelming Blacks who graduate from Detroit
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1 schools every year, would you say ever make it into
2 any kind of a position where they're even thinking
3 about applying to the U of M Law School?
4 MR. PURDY: Object, foundation, your
5 Honor.
6 THE COURT: If he knows, I don't
7 know.
8 A. I don't know the answer.
9 BY MS. MASSIE:
10 Q. Well, how about this question. How many students
11 from Detroit schools end up actually enrolling at
12 the University of Michigan Law School?
13 A. You're talking about Detroit Public Schools.
14 Q. I am.
15 A. I'm pretty sure we have a few every year. I
16 couldn't tell you how many.
17 THE COURT: You don't read
18 applications anymore, do you?
19 A. No, actually.
20 BY MS. MASSIE:
21 Q. I think it's a very, very, very small proportion of
22 12,000?
23 A. Yes.
24 Q. But those young people are residents and citizens of
25 the state of Michigan?
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1 A. The students, the Michigan residents who come, yes.
2 Q. The children in the Detroit school system, the
3 children in the Pontiac school system, the Benton
4 Harbor school system and the Flint school system?
5 A. Yes, they're all residents of Michigan.
6 Q. And their parents are among the residents and
7 citizens whom the school and the university seek to
8 serve?
9 A. Yes.
10 Q. So, even though they're not on the little grid that
11 the Plaintiff was presenting to Professor Lempert
12 the other day, they are, in fact, part of the
13 residency program?
14 A. I don't know what you mean by the residency program,
15 but they would count as Michigan residents for
16 purposes of the University's admissions policy.
17 Q. Whom the school seeks to serve?
18 A. Yes.
19 Q. And do you know what their chances are for a Black
20 child from, let's say, the Southfield School
21 District, a middle class school district and
22 somewhat more integrated one, for being in a
23 position to apply to the University of Michigan Law
24 School?
25 A. I don't know.
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1 Q. Do you know how many students enroll at the U of M
2 Law School every year from the Southfield School
3 District, Black students?
4 A. Black students from the Southfield School District,
5 I don't know.
6 Q. Obviously not directly, that would be very
7 precocious?
8 A. Yes.
9 Q. Let me change gears a little bit here and ask you
10 some questions about critical mass if I might?
11 A. Sure.
12 Q. There's no need for a critical mass of Olympic Gold
13 medalists at the law school, right?
14 A. That's correct.
15 Q. And the reason there's a need for a critical mass of
16 Black, Latino and Native Americans students at the
17 law school, is because of the particular social
18 significance of race in this nation, true?
19 A. I would say that the need for a critical mass of the
20 underrepresented minority students that you talked
21 about, derives from the way in which race and
22 ethnicity play out in the classroom.
23 And if that's what you mean by the
24 social significance of race, then the answer to the
25 question would be yes.
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1 Q. Here's what I mean. There's a danger of stigma and
2 stereotype and pressures associated with racism
3 attached to token numbers of minority students.
4 Those dangers don't attach incomparable fashion to
5 Olympic Gold Medalists, single mothers, et cetera,
6 is that true?
7 THE COURT: If you know?
8 A. Well, different categories you described might be
9 different, Olympic Gold Medalist.
10 BY MS. MASSIE:
11 Q. Fair enough. Let me just strike the single mothers
12 and stick with the Olympic Gold medalist for the
13 time being.
14 A. Okay. Olympic Gold medalist, if you go back to what
15 Dean Syverud was referring to, I think he described
16 it very well. When he said that part of what you're
17 interested in is preconceptions about prospective.
18 And I think it's hard for me to
19 imagine how people would have too many
20 preconceptions about how an Olympic Gold Medalist
21 might think about a legal issue.
22 There are other reasons for diversity
23 than just breaking down preconceptions. And that's
24 why we mentioned Olympic Gold Medalist as one of the
25 kinds of backgrounds and experiences that might be
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1 relevant to exploring, to admitting someone to add
2 diversity to the class.
3 So, I think what you're getting at
4 explains why there is a reference to critical mass
5 with respect to this particular type of diversity
6 that doesn't carry over to the other kinds of
7 diversity that might be relevant.
8 It's because in this particular kind
9 of diversity, racial and ethnic diversity, you are
10 more likely to be dealing with the need to break
11 down conceptions perhaps, but also to create a level
12 of observed comfort where people feel like they can
13 be individuals.
14 Q. And you need numbers to break down those
15 preconceptions, those potential preconceptions and
16 to ensure a comfortable environment, because there
17 could be isolation or even a hostile environment, or
18 certainly stigma or stereotypes attached to race,
19 correct?
20 A. I think what I would say is that without meaningful
21 numbers of minority students, it is much less likely
22 that you will find the kind of participation that we
23 look for in the class which is open.
24 And you identified a number of
25 possible reasons why that might be so. And I can't
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1 say definitively which of those reasons precisely
2 accounts for it.
3 All of them strike me as plausible,
4 but I can't say that definitively I know that it is
5 one or the other of the reasons that you mentioned.
6 Q. In your view, do our society's continuing problems
7 with racism have a relationship to the need for a
8 critical mass of minority students?
9 A. In my view, I think that the experience of--I think
10 that the experience of being a member of a
11 historically discriminated against group, and the
12 experience of being discriminated against today, can
13 lead students to be less willing to speak out in a
14 way that is unselfconscious about being taken to be
15 a spokesperson for ones race. It's not always the
16 case.
17 I have known some minority students
18 who are quite courageous and forth right and are
19 willing to speak out about what they believe
20 genuinely, even if they are the only member of that
21 group in the room. My experience has been that that
22 is the exception in the minority group.
23 Q. And you associate that with the phenomenon of
24 racism, or put more generally, with the continuing
25 significance of race in our common life as a nation?
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1 A. Yes, I do.
2 Q. I notice that both you and Dean Syverud and other
3 people too, have spoken some about the benefits of a
4 critical mass of minority students when topics not
5 seemingly related to race come up in discussion?
6 A. Yes.
7 Q. Is it also true that critical mass has a set of
8 benefits when topics which are clearly related to
9 race come up in classroom discussion?
10 A. Yes.
11 Q. I'm thinking in particular of classroom discussions
12 that may happen around the issue of racial profiling
13 which is one of the kinds of subjects that's been
14 very much in the news lately, which shows how much
15 race cuts across class, how much it continues to
16 shape American experience and be a very distinct
17 category?
18 A. Yes.
19 Q. And in discussions of racial profiling and other
20 matters that are very specifically race related, and
21 that show the uniqueness of race in our common life,
22 is it important to have a critical mass of minority
23 students participating in those discussions?
24 A. Yes.
25 Q. Finally, Dean, I don't want to beat a dead horse,
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1 but I want us to be absolutely clear.
2 You have taught at the law school
3 since 19 what?
4 A. 1987.
5 Q. Have you found that your Native Americans students
6 are the peers and the equals of your White students?
7 A. Yes.
8 Q. Your Latino students, are they the peers and the
9 equals of your White students?
10 A. Yes.
11 Q. And your Black students, are they the peers and the
12 equals of your White students?
13 A. Yes.
14 MS. MASSIE: That's all I have.
15 THE COURT: Plaintiff.
16 CROSS-EXAMINATION
17 BY MR. PURDY:
18 Q. Good afternoon, Dean Lehman?
19 A. Good afternoon.
20 Q. Let me go back to a question that Ms. Massie just
21 asked, because I hope there's no confusion left in
22 the record.
23 You do recall the discussion that we
24 had about the grid with Professor Lempert where I
25 was comparing the treatment of resident majority and
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1 non-selective minority residents with out of state
2 underrepresented minorities, correct, do you recall
3 that?
4 A. Resident majority and underrepresented?
5 Q. Yes. In other words, there was no mention, we
6 weren't discussing at all the treatment of what
7 happens to Michigan resident minority students, do
8 you recall that?
9 A. Your tables were about?
10 Q. Sure.
11 A. Why don't you tell me what your tables were about?
12 Q. Well, I thought you said you recalled it so I wanted
13 to make clear.
14 Do you recall we were comparing the
15 treatment of out of state minority applicants with
16 what happened to resident majority and non-selective
17 minority applicants?
18 A. Yes.
19 Q. All right. Dean Lehman, you made reference earlier
20 when you were talking to Mr. Payton about critical
21 mass, and we're going to go back through that a
22 little bit this afternoon, I'm sure that doesn't
23 surprise you.
24 And, Mr. Payton asked you these
25 questions, he says it's not a particular number and
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1 you said right. He said it's not a particular
2 percentage and you said that's right.
3 And he said it's not a particular
4 range, and you said that's right, correct?
5 A. Correct.
6 Q. But it's true, is it not, Dean Lehman, not a single
7 year since 1992 when the policy was adopted, has the
8 underrepresented minority enrollment dropped below
9 eleven percent, isn't that correct?
10 A. I can't say it is incorrect. If you tell me it's
11 true, I guess I should believe you.
12 Q. Do you know one way or the other?
13 A. I don't know.
14 Q. I want to go back, if I could. This morning there
15 were a couple of comments about were you surprised
16 when the lawsuit was filed, and I just want to make
17 clear.
18 You understand that the use of
19 affirmative action, or the consideration of race in
20 admissions is an issue where people of good will can
21 be found on both sides, do you not?
22 A. I do.
23 Q. And, in fact, those are words that you've written
24 with specific connection to this lawsuit, correct?
25 A. Yes, they are.
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1 Q. And it is your view, in fact, that serious
2 discussion of this litigation and the issues
3 involved will encourage--it's in the best tradition
4 of our profession, the legal profession and your law
5 school, correct?
6 A. I believe that there have been a lot of benefits, I
7 think, in helping to dispel misunderstandings that
8 have come from the discussions surrounding this
9 litigation.
10 Q. And just to be clear. I think there was a
11 great--there's been a great phrase that we've heard
12 about recently in the last couple of days, not every
13 difference of opinion is a difference in principal,
14 do you recall that?
15 A. I don't recall hearing it in court actually.
16 Q. All right. Let me ask you a couple of questions
17 just about your own definition of diversity.
18 You recall I took your deposition
19 about two years ago, I think we're very close to the
20 two year anniversary. I think it was January 1999,
21 you recall that, do you not?
22 A. I recall the deposition, yes.
23 Q. And at that time we went through a lengthy
24 discussion of the faculty of Michigan, do you recall
25 that?
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1 A. I actually don't recall it very well, but I assume
2 that's what this is?
3 Q. I don't think we need to go to that, but if we do we
4 will.
5 A. Okay.
6 Q. Well, let me ask you this. Before you came into the
7 courtroom today, did you review your deposition?
8 A. No, I didn't.
9 Q. You didn't, okay, all right. In any event,
10 Dean Lehman back in January of 1999, did you
11 consider your faculty to have a critical mass of
12 underrepresented minority members?
13 A. I'm sorry, did I consider the faculty?
14 Q. Yes. You had a faculty of some 90 plus part-time
15 and full-time and clinical professors.
16 Did you consider that it contained a
17 critical mass of underrepresented minority members?
18 A. Well, the word critical mass does mean something.
19 I'm not quite sure exactly what you mean by critical
20 mass with respect to faculty. We have used the term
21 critical mass in connection with the student body in
22 talking about our policy.
23 Q. You wouldn't apply the term critical mass to your
24 faculty?
25 A. It's not something that I would use in describing
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1 it.
2 Q. Do you recall how many minority members there were
3 in your faculty when your deposition was taken, some
4 90 plus faculty members, do you recall?
5 A. I don't remember.
6 Q. If I told you that it was three that you identified,
7 would that be consistent with your recollection?
8 A. It would sound low to me, but it's possible.
9 Q. And do you recall though, Dean Lehman, that every
10 year in the law school bulletins, you describe the
11 faculty as dazzling and diverse?
12 A. Yes. The reason why I describe our faculty as
13 dazzling and diverse, because diversity means more
14 than just racial diversity.
15 Q. Certainly, we agree. We agree. I'm going to jump
16 around a little bit here, I apologize.
17 Just so we're clear, the Court had
18 asked some questions about whether or not if the
19 school had to give up critical mass or intellectual
20 or academic excellence, I believe the question was
21 along those lines, and I want to go back to the
22 policy.
23 Just so it's clear, Dean Lehman, the
24 policy does set forth in two different places, what
25 the minimum academic criteria are for students who
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1 that will be considered for admission, does it not?
2 And let me point out to page two,
3 that's the first place it appears. And, in fact,
4 counsel for the University has highlighted it and I
5 will read it.
6 "The minimal criterion is that no
7 applicant should be admitted unless we expect that
8 applicant to do well enough to graduate with no
9 serious academic problems." Correct?
10 A. Yes.
11 Q. And, in fact, on page ten you repeat, "We reiterate,
12 however, that no student should be admitted unless
13 his or her file as a whole leads us to expect him or
14 her to do well enough to graduate without serious
15 academic problems." Correct?
16 A. Yes, you read it correctly.
17 Q. And that's what the policy calls for, correct?
18 A. Yes.
19 Q. And so long as--if during the course of an
20 admissions cycle, Dean Lehman, critical mass
21 appeared not to be taking place.
22 In other words, the school was low
23 and it was concerned that critical mass might not be
24 achieved, so long as you have underrepresented
25 minority applicants who would meet those criterion,
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1 they will be considered for those seats in order to
2 create critical mass, correct?
3 A. Well, they're not the only ones who are considered
4 for those seats.
5 Q. Well, let's just stop. They're the only students
6 who can compete in order to create critical mass,
7 because the White student can't create critical
8 mass, correct?
9 A. I don't quite understand what you mean by they're
10 the only students who can compete to create critical
11 mass.
12 Q. For example, a White student cannot help create
13 critical mass of underrepresented minority students,
14 that's correct?
15 A. That's correct.
16 Q. An Asian American student doesn't help create a
17 critical mass of underrepresented minority students,
18 correct?
19 A. Yes, that's correct.
20 Q. All right. And so if critical mass is lacking at
21 any point in the admission cycle, and there are
22 qualified underrepresented minority students still
23 within the applicant pool, only they can be
24 considered for a position in the class to create
25 critical mass, correct?
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1 A. Well, I think that's--
2 THE COURT: (Interposing) Critical
3 mass for underrepresented minority students?
4 MR. PURDY: Yes, sir.
5 A. The reason why I'm sort of resisting you here, is
6 because you're talking about creating a position,
7 about competing for a position to create critical
8 mass.
9 And I think that's not the
10 way--that's not the way the Admissions Office think
11 about files, I guess I would say.
12 Say you're late in the process and
13 you would several files in front of you. If you
14 have a file from a White applicant and you do not
15 believe you have a critical mass of underrepresented
16 minority students at that time, it cannot be a
17 virtue of that applicant's file that they would
18 contribute to the achievement of a critical mass of
19 underrepresented minority students.
20 And it could be a virtue of an
21 underrepresented minority student's file that they
22 will contribute to the achievement of a critical
23 mass of underrepresented minority students.
24 BY MR. PURDY:
25 Q. Dean Lehman, tell me how that's different from what
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1 I just said. Isn't it true only the
2 underrepresented minority applicant, the qualified
3 underrepresented minority applicant can compete in
4 order to fill a spot to create critical mass?
5 A. Well, it's different because what you just said
6 doesn't describe the way the process works. It's
7 not as though we are having some and need to create
8 a spot that create critical mass.
9 Q. Critical mass is some number, is it not? It has to
10 be a number?
11 A. No, it doesn't have to be a number. And I think I
12 described in my testimony how I conceive of it as
13 being more than token representation, but it doesn't
14 suddenly just appear and then you have critical mass
15 and there are no benefits. No educational benefits.
16 What we're talking about is in the
17 educational dynamic of the institution, there is a
18 period of growth in diversity and racial diversity
19 for underrepresented minority students.
20 Where additional diversity along that
21 dimension enhances the educational environment quite
22 significantly. That's not a number, that's not a
23 single number.
24 And I can't even tell you exactly
25 where it begins, where this period begins because it
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1 depends on the people. Depends on the individuals
2 who are there.
3 Q. Depending on the individuals, Dean Lehman, could
4 five percent underrepresented minority enrollment
5 constitute a critical mass, in your opinion?
6 A. Five percent total underrepresented minority
7 enrollment?
8 Q. Yes, sir, five percent total underrepresented
9 minority enrollment?
10 A. It is conceivable to me, but it is unlikely to me.
11 I think I would have to sort of have to see how it
12 played out in class.
13 Q. It would depend on the individuals as you just said,
14 right?
15 A. Yes.
16 Q. Could three percent?
17 A. As I said, it seems very unlikely.
18 Q. But it would depend on the individuals, would it
19 not?
20 A. Yes, it would depend on the individuals.
21 Q. Dean Lehman, I am just putting--every year you make
22 about a thousand offers of admission, is that right?
23 A. It varies. The last couple of years it's been 1100
24 to 1200 offers.
25 Q. Eleven to 1200. Somewhere within that eleven to
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1 1200, you have to make enough offers to create
2 critical mass of underrepresented minority students,
3 do you not?
4 A. No, you don't have to. It depends on the applicant.
5 Q. You told the court if you don't have students that
6 are qualified, students that you don't believe are
7 going to be able to compete the program, clearly you
8 won't admit those students, correct?
9 A. Correct.
10 Q. And you won't do that regardless of the applicant's
11 race?
12 A. Correct.
13 Q. But so long as you have applicants, underrepresented
14 minority applicants who are qualified, then there is
15 a number that constitute critical mass even if you
16 don't know before the class is formed what it is,
17 there is some number above tokenism, is there not?
18 A. I'm sorry if I wasn't making myself clear before. I
19 do not believe that is an accurate statement, no.
20 Q. Okay. Assume with me, if you will, and I will
21 represent to you, but look at the University's
22 material. And there has not been a single year
23 since 1992 where underrepresented minority
24 enrollment has dropped below eleven percent, it's
25 always been above that, so just assume that with me?
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1 A. Okay.
2 Q. Okay. And as I understand it, Professor Lempert, I
3 believe it was Professor Lempert, and perhaps even
4 Dean Shields, both confirmed that in their view
5 critical mass was present every year at Michigan's
6 law school classes since 1992, would you agree with
7 that?
8 A. I believe that there has been in each year since
9 I've been dean, we've been focusing on the whole
10 school?
11 Q. Yes, sir.
12 A. I believe that there has been a critical mass of
13 underrepresented minority students, by which I
14 believe there has been more than token
15 representation with regard to minority students. So
16 that we have started to see these benefits accrue in
17 the student body.
18 Q. If you were in the midst of the admissions
19 cycle--strike that.
20 As dean, do you periodically get the
21 daily reports that have been discussed by Dean
22 Shields and Ms. Munzel during the course of the
23 admissions cycle, do you see those?
24 A. I don't get them in the sense, they're not sent to
25 me. But I do meet regularly with Dean Munzel to
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1 talk about the office, in general, and the
2 admissions process in particular. And she brings
3 the dailies with her when we meet, and we will look
4 at them.
5 Q. And do you recall discussing how the classs is
6 shaping up during each of the admissions cycle?
7 A. Yes.
8 Q. Did you also do that with Dean Shields when he was
9 there?
10 A. Yes.
11 Q. And the dailies are broken down by race and
12 ethnicity, are they not?
13 A. Yes, they are. And residency and gender as well.
14 Q. Sure. A whole host of different criteria?
15 A. Yes.
16 Q. But you do know how the class is shaping up in terms
17 of the offers made and acceptances received from
18 different racial and ethnic groups, correct?
19 A. Well, it's offers and deposits.
20 Q. Yes, sir. Which you hope to convert into a--
21 A. (Interposing) Into an enrolled student in the fall,
22 that's the aim.
23 Q. Do you ever recall at any point in any of the
24 admission cycles ever being concerned that critical
25 mass of underrepresented minority students did not
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1 appear to be shaping up?
2 A. It's hard to recall specifically all those meetings.
3 But I guess what I would say is there's substantial
4 fluctuation from year to year in the number of
5 applications and offers to different sub-populations
6 depending on the files.
7 And so I know I have asked, gee, in
8 some years our applications from African Americans
9 seem to be way down this year.
10 Q. So you have expressed that?
11 A. Why is that? I have asked the question do we know,
12 and the answer I think was we don't know.
13 Q. So, do you ever recall a discussion with either of
14 your deans of Admission or directors of Admission
15 where you expressed concern that a critical mass, as
16 it's defined in the policy, might not be present
17 when the class ultimately enrolled. And I'm taking
18 about a critical mass of underrepresented minority
19 students?
20 A. I don't recall ever having said that.
21 Q. Well, I want you to assume that at some point you
22 were concerned, in other words, in looking at the
23 applications in an admissions cycle, you became
24 concerned?
25 A. Right.
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1 Q. Now, I am just going to--here is a pool, we'll just
2 put underrepresented minority students. It would
3 include African Americans, Native Americans and
4 Hispanics.
5 And here is an additional pool,
6 obviously this is one big pool. And these would be
7 your White students, White applicants, I should say,
8 Asian Americans and others.
9 And isn't it true, Dean Lehman, that
10 so long as there--if you're short on critical mass,
11 if you are concerned that critical mass is not going
12 to be achieved, but you have within the applicant
13 pool qualified underrepresented minority applicants,
14 they are the only applicants that can compete to
15 fill out that portion of your class?
16 A. I'm going to take exception again to this language
17 of competing to fill out that portion of the class.
18 We do not have a portion of the class that is set
19 aside for critical mass of underrepresented minority
20 students.
21 What we have is a value, a value in a
22 composition of the student body that is important to
23 us pedagogically which has to do with the
24 achievement of the education, the pedagogic benefits
25 that come from having a critical mass of
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1 underrepresented minority students in the class.
2 That's a value and it's an important value. It's
3 not the only value. It's not the only value in
4 evaluating files.
5 Because in the end you're still
6 looking at individual people's files. And in the
7 end, the Admissions Office is reading files side by
8 side. And you have to know what's in the file to be
9 able to say who will win out in competition for a
10 seat. There is real competition for a seat. That
11 exist.
12 Q. But--
13 A. (Interposing) But you can't tell in advance, you
14 can't tell in advance who is going to prevail, even
15 though some people might contribute to the
16 achievement of a critical mass of underrepresented
17 majority students and other people might not.
18 Q. Dean Lehman, it's true is it not that every year
19 Michigan admits minority students who would not be
20 admitted were it not for their race or ethnicity,
21 correct?
22 A. Every year we do admit students where one of the
23 values that we consider significant is their
24 contribution to the racial and ethnic diversity of
25 the class.
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1 And when you look at the experience
2 of Boalt Hall, you see that if we did not consider
3 that, if we adopted a color blind policy, the total
4 number of enrolled members of those minority groups
5 would be much lower.
6 Q. I was going to wait to get to Boalt Hall, but let me
7 just very quickly and maybe I won't have to come
8 back to it.
9 Certainly you believe that Asian
10 Americans students contribute a great amount of
11 diversity to a law school class, do you not?
12 A. Yes, I do.
13 Q. And do you know what percentage of Boalt's current
14 class is made up of minority students as compared to
15 Michigan's?
16 A. Underrepresented minority students?
17 Q. All minority students, all people that would be
18 categorized as minority students. Who has the
19 greater percentage of minority students?
20 A. What kinds of minorities are you talking about?
21 Q. Minority students. Asian Americans, African
22 Americans, Hispanics, Native Americans, Latinos?
23 A. Ethnic minorities, religious minorities?
24 Q. I'm not talking about religious minorities, we're
25 talking about racial and ethnic minorities.
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1 A. Racial?
2 Q. Dean Lehman, which school today has the greater
3 percentage of minority students Boalt Hall or
4 Michigan?
5 A. I do not know.
6 Q. Okay. Well, if you don't know, why do you believe
7 that there's a devastating impact on the overall
8 enrollment post Prop 209?
9 A. I was speaking about the impact on the enrollment of
10 underrepresented minority students.
11 Q. Do you have a feel, would ten percent of
12 underrepresented minority students, ten percent,
13 would that constitute critical mass in your view?
14 A. I'm sorry.
15 Q. Would ten percent of underrepresented minority
16 students constitute critical mass of those students,
17 in your opinion?
18 THE COURT: At the University of
19 Michigan, or anyone where?
20 MR. PURDY: Anywhere.
21 A. Ten percent of the class consisted of
22 underrepresented minority students, again it depends
23 upon the individual members.
24 But my senses that you would, in some
25 classes at least, begin to see some of the benefits.
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1 But you would certainly not be at, sort of what I
2 described as the area where you start to see
3 significantly diminishing marginal returns to
4 additional diversity.
5 Q. Sure. Now, we're talking the other end of the
6 range. I'm talking at the lower end of the range.
7 In other words, I want to know whether or not in
8 your view, let me just finish, ten percent of
9 underrepresented minority students in a selective
10 law school would constitute a critical mass?
11 A. I mean I think this may get to where I wasn't making
12 myself understood to you before. This notion of a
13 critical mass is like the notion of meaningful
14 numbers. Is describing this kind of S shaped sort
15 of curve.
16 Where you begin to get benefits
17 beyond tokenism, beyond token representation and
18 they continue for a period before you get to
19 significantly diminishing marginal returns.
20 So, to ask me is ten percent critical
21 mass when I'm thinking of critical mass in terms of
22 this range, are you asking--I can make sense of it,
23 I guess, if I understand the question to be, do in
24 my experience do I think it's likely that at ten
25 percent representation of underrepresented
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1 minorities, you're starting to get beyond tokenism,
2 you're starting to get some of these benefits.
3 If I understand your question to be
4 in that spirit, then I think in my experience, yes,
5 you're starting to get those kinds of benefits.
6 Q. Would you be surprise if you were to learn that
7 today for the fall of 2000, the entering class at
8 Boalt Hall was nearly ten percent underrepresented
9 minorities?
10 A. The entering class for the fall of 2000 at Boalt
11 Hall?
12 Q. Yes, sir.
13 A. Was, I'm sorry, what's the percentage?
14 Q. Nine point seven percent exactly?
15 A. Yes.
16 Q. Would that surprise you?
17 A. No.
18 Q. And that 18.9 percent were Asian students, would
19 that surprise you?
20 A. No.
21 Q. You consider UCLA to be an outstanding law school?
22 A. I consider UCLA to be an outstanding law school,
23 yes, I do.
24 Q. Do you know what the underrepresented minority
25 enrollment in the class of 2000 at UCLA is?
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1 A. Actually I should clarify my answer to the last
2 question.
3 Q. Sure.
4 A. I used to think of UCLA as an outstanding law
5 school.
6 Q. And why do you not think it's an outstanding law
7 school today?
8 A. Because they are suffering right now from a lack of
9 diversity in their student body.
10 Q. What percentage of the enrolling class for the year
11 that just began, the fall of 2000 at UCLA, is made
12 up of underrepresented minorities, if you know?
13 A. I do not know.
14 Q. Would it surprise you that it's twelve percent?
15 A. I don't know.
16 Q. What is Michigan's current underrepresented minority
17 enrollment?
18 A. I do not know.
19 Q. I believe Professor Raudenbush had something like
20 14.5 percent?
21 A. I don't know.
22 THE COURT: How many students in LA,
23 do you know?
24 MR. PURDY: The class is about 305, I
25 believe.
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1 THE COURT: Okay.
2 BY MR. PURDY:
3 Q. And your class is about 350 give or take, is that
4 correct?
5 A. Yes.
6 Q. And when you look at the total overall minority
7 enrollment, the total overall diversity of the law
8 school at UCLA, does it have more or less racial and
9 ethnic diversity than does Michigan?
10 A. I do know from conversations with Jonathan Barrat
11 (ph) the dean at UCLA, that they are concerned about
12 the absence of more than a token number of African
13 Americans students in the entering class. And the
14 impact that that is having on the educational
15 experience at the UCLA Law School.
16 So, the particular concern, that the
17 pedagogic concern there, has to do with African
18 American students at UCLA.
19 Q. Would that be the same concern that Dean Syverud
20 might have at Vanderbilt because he has not a single
21 Hispanic student in last year's entering class?
22 A. Yes.
23 Q. If I can ask you to turn to your deposition page
24 112, Dean Lehman.
25 Yes.
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1 Q I'm going to direct you to line 17. And we were having a
2 discussion about the role that race played, and you made a
3 comment, you made a statement in the record, beginning on line
4 17, and I just want to read it, I want you to tell me if it's
5 correct.
6 "What I'm saying is that are applicants who we
7 admit, who would not be admitted if we if we were
8 prohibited from taking their race and the
9 university's interest in racial diversity among
10 the student body into account."
11 Did I read that correctly?
12 A Give me a second to see it in context here.
13 Q Surely.
14 A Yes.
15 Q In fact, early in your deposition you clearly stated that
16 race does make a difference in the applications decisions that
17 you make. And I'll just direct you to page 111, it's right
18 above that.
19 A Yes.
20 Q All right. Thus, it's clear, is it not, Dean Lehman that
21 there are minority students for whom race was determinative in
22 whether or not they were given an offer of admission; correct?
23 A Yes.
24 Q So the same student who was admitted because race made a
25 difference, had that student been white or Asian American, they
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1 would not have been admitted; correct?
2 A Yes.
3 Q And there are people within this group of under --
4 A If I could --
5 Q Let me finish my question and if you need to come back
6 I'll let you do. But there are people, minority applicants,
7 who are admitted even though they have qualifications lower
8 than applicants who are non-minorities; correct?
9 A What I've been trying to say is that when we are
10 evaluating a file and trying to decide what a person
11 contributes to the file, and trying to get a sense of the whole
12 person, there are candidates for whom their contributions to
13 the racial diversity of the class is outcome determinative.
14 You asked before would they have been admitted if they had been
15 white, and the reason why I wanted to go back and sort of
16 clarify that, my answer to that question is that requires one
17 to -- you just can't flip a person's race. You know, to say --
18 race is more than skin color. Race is lived experience. So
19 when you say, you know, take a person and sort of assume this
20 person has been white, you are often changing a whole set of
21 experiences that they've had in their life. You're making them
22 a different person. And so when you asked the question would
23 they have been admitted if they had been white is almost asking
24 would they have been if they were a different person. What I'm
25 trying to say to sort of express it more positively in a way
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1 that I'm more confident about, is saying given who they are,
2 and I can't change what their race is, how did it effect our
3 analysis of their application. There are candidates for whom
4 their race and their contribution to racial diversity as it's
5 reflected in the applicant file makes a difference, made a
6 difference in whether they would have been admitted.
7 Q Let me -- and that's -- these students, right here, who
8 are completing to create the critical mass that you're seeking
9 --
10 MR. PAYTON: Hold on, this is Mr. Purdy's I think he
11 admitted hypothetical that doesn't relate to anything --
12 THE COURT: It's also Cross-Examination.
13 MR. PAYTON: It is, but he was asking as though this
14 relates to something in the real world.
15 THE COURT: You should have prefaced it by "Is
16 this," referring to his chart.
17 A As I said before I don't approve of that chart.
18 BY MR. PURDY:
19 Q But you just said that there are students for whom their
20 race is determinative in their receiving an offer of admission;
21 correct? We've been through that. There's no question about
22 that.
23 A Yes.
24 Q Isn't these students the ones who are competing to
25 complete critical mass in the class that are --
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1 A Mr. Purdy, I said when you put that up here initially
2 that we do not have seats for critical mass in a class for
3 which people -- seats for critical mass that people compete
4 for. That's not an accurate representation of the process. So
5 the answer is no.
6 Q Dean Lehman, the term "qualifications" appears in the
7 policy does it not? We see it sprinkled through the policy and
8 there's specific reference when it talks about residents; do
9 you recall that?
10 A Can you tell me where you're talking about?
11 Q Sure. Right here back. On Page 2, I'm sorry. Let me
12 read it.
13 It's talking about the constraint that Michigan
14 feels as part of a publicly funded university.
15 "As such we feel that a reasonable proportion of
16 our places should go to Michigan residents, even
17 if some have qualifications lower than those of
18 some applicants from outside Michigan."
19 So there's the term "qualifications.
20 A Yes.
21 Q Isn't it true that there are minority applicants who are
22 admitted even though they have qualifications as used in this
23 policy that are lower than non-minorities?
24 A Well, as I understand the word "qualifications" there
25 that has to do with the whole package of information that's in
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1 a file. It includes everything about the person we can glean,
2 that we think has significance for their likely contributions
3 to the educational environment of the law school while they're
4 present for their careers afterwards.
5 So their contribution to the diversity of the
6 environment is part of that word, "qualifications" as I
7 understand in that sentence.
8 So what we're saying is our commitment to ensuring
9 that a responsible proportion of our places go to Michigan
10 residents trumps all of that.
11 Q Could I ask you to go to page 115 of your deposition,
12 please sir?
13 A Yes.
14 Q I'm going to start on line 13, and I'll ask you if you
15 would like to follow along with me, because there's a series of
16 questions and answers that I'd like to read. We had just --
17 and if you want to look back I'll give you a moment, we just
18 had some trouble coming to an agreement on the term
19 "qualifications" but my questions begin line 13.
20 "Q Let's go to Page 2 of Exhibit 4."
21 That's what we have up here.
22 The bottom paragraph says.
23 "Q The question we confront, do you see that?"
24 "A Yes.
25 "Q If you go on down" -- this is talking about
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1 the requirement for state residents.
2 "There's a sentence in this policy, it says
3 `As such we feel that a reasonable proportion of
4 our places should go to Michigan residents even if
5 some have qualifications lower than those of some;
6 applicants from outside Michigan, do you see that?
7 "A Yes.
8 "Q Okay. That's the term I'm using
9 qualifications with that saying, whatever you mean
10 in this policy is exactly what I mean in my
11 question. So is it true that there are people of a
12 minority race who are admitted even they have
13 qualifications lower than applicants who are
14 non-minorities?
15 "A So you're using the word qualifications
16 as it's used in this policy?
17 "Q I'm using it just as it's used in that
18 sentence that I just read to you.
19 "A Yes.
20 "Q Your answer is yes?
21 "A The answer is yes."
22 Did I read that correctly?
23 A Yes, you did.
24 Q Dean Lehman, I want you to assume that there's no
25 identification on the application form of Michigan for race or
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1 ethnicity. Just assume that if you will.
2 A No, that's not true.
3 Q I understand that's not true. I want you to assume that
4 hypothetically we can just eliminate that for race. It's true,
5 is it not, that every year, every year, there would be
6 African-American applicants to whom you would offer admission.
7 A Yes, that's true.
8 Q That same would be true for Mexican-American applicants;
9 would if not?
10 A I believe so.
11 Q How about Native American applicants?
12 A I don't know the answer to that question. We have very
13 small numbers of Native American applicants each year.
14 Q But certainly every year if you didn't know another thing
15 about a person's race, there would be African-Americans
16 admitted to the University of Michigan Law School, and Hispanic
17 Americans admitted to the University of Michigan Law School;
18 correct?
19 A I believe that's right.
20 Q And just so it's clear -- strike that.
21 I want to talk to you about critical mass. I think
22 the simplest way to do it, is to go your deposition on page
23 144, if you would please.
24 A Yes.
25 Q And there I think I asked you the same question that Mr.
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1 Payton asked you earlier. I said "have you heard the term
2 critical mass?"
3 MR. PAYTON: Where are you?
4 MR. PURDY: I'm sorry, counsel, 144.
5 MR. PAYTON: What line?
6 MR. PURDY: Twenty.
7 BY MR. PURDY:
8 Q "Q Have you heard the term critical mass?
9 "A Are you referring to the term in the policy?"
10 And then we go on to have a discussion where you
11 then proceeded to read from the policy. You read page 12. Do
12 you see that over on page 145?
13 A Yes, yes.
14 Q And then beginning on line 20, you said the following
15 after quoting from the policy.
16 "As I understand the use of the term, critical mass
17 in that sense, what we're talking about is a
18 number of students that is sufficient to enable
19 the institution and the students to experience the
20 benefits, the academic benefits that come from
21 having a racially diversed student body. That
22 means a sufficient number that members of the
23 minority group feel comfortable within the
24 institution, and able to participate in the
25 academic, intellectual and professional life of
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1 the institution. And, also theses are all
2 different concepts that all sort of go together
3 into forming what might -- what a critical mass
4 might mean. But also a sufficient number that
5 other students in a student body would be likely
6 to have the experience of interacting with
7 students of other races, that they wouldn't have --
8 that other students wouldn't be restricted to
9 the experienced of a racially homogenous
10 education, so that they would be able to hear
11 minority students speaking on legal issues and.
12 expressing differences of opinions, things like
13 that.
14 "Q Okay. Now you've used the term a sufficient
15 number several times in that answer.
16 "A Right.
17 "Q What is a sufficient number of minority
18 students to form a critical mass?
19 "A Well, as I was saying there's -- we're
20 talking about a variety of different ideas here.
21 "Q Well, I want -- you've used the phrase a
22 sufficient number of minority students.
23 "A Yes.
24 "Q What in your, as one of the framers of this
25 document, what do you mean by sufficient number?
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1 "A Well, I use it in several context. So it's a
2 sufficient number to achieve a variety of
3 different kinds of benefits and the numbers don't
4 have to be the same.
5 "Q Well, so the critical mass can vary? It can
6 be different for different things?
7 "A Yes."
8 Did I read that correctly so far.
9 A Yes.
10 Q And, Dean Lehman, you go on to discuss the fact that one
11 of the goals is to have students who feel comfortable within
12 the law school environment, correct, the minority students; do
13 you recall that?
14 A I'm sorry?
15 Q Do you recall discussing that one of the goals that you
16 -- you and I had discussed, two years ago -- here, let's do it
17 this way. We'll keep reading because that's maybe the simplest
18 to do it.
19 A That would be helpful to me.
20 Q You bet. So, we'll go back.
21 "Q But also critical mass can vary. It can be
22 different for different things?
23 "A Yes.
24 "Q Is there a number of minority students below
25 which you would believed you had not achieved a
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1 critical mass necessary to achieve any of the
2 goals that you've just described?
3 "A Yeah -- I mean, I've seen classes where the
4 number of minority students was too low to achieve
5 those benefits.
6 "A Absolutely.
7 "Q And my question is what would be a number
8 that's too low to achieve those benefits?
9 "A Well, it's going to vary. Are you asking --
10 are you trying to ask me if there's a specific
11 fixed number out there and below it's okay and
12 above is, is that what you're asking?
13 "Q Well, I assume that if you're saying that
14 you. want to enroll a critical mass of minority
15 students you have to some number below which you
16 would feel you have failed in that effort, is that
17 a fair statement?
18 "A Yes.
19 "Q Okay. What is that number?
20 "A It depends on the context.
21 "Q Give me the lowest number in any context
22 below which if you didn't have that number of
23 minority students you believe you would have
24 failed to reach a critical mass necessary to
25 accomplish the goal.
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1 "A Ask that question again, I'm not sure what
2 you're meaning.
3 "Q Okay. You gave me -- you said a number
4 sufficient to enable the institution to experience
5 the academic benefits of these students. I wrote
6 that down.
7 "A Yes.
8 "Q What number of students, what number of
9 minority students would be sufficient for you to
10 have achieved critical mass to accomplish that
11 goal?
12 "A You don't know until you see the class. I
13 mean, you know when you don't have it.
14 "Q Are you telling me that there's no number?
15 I. mean it could be as little as one percent of
16 the class might be sufficient to achieve that
17 goal?
18 "A You're asking me a hypothetical question.
19 here that I'm having trouble with understanding
20 What you're saying.
21 "Q Well, let me go to another example. You
22 said you needed a sufficient number of members
23 to make the members of the minority group feel
24 comfortable in the institution. That's a goal.
25 "A Right.
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1 "Q What percent, what would be a sufficient
2 number to achieve that goal? Certainly zero would
3 be unacceptable to you; correct?
4 "A Yes.
5 "Q. What number of above would still be
6 unacceptable?
7 "A It depends. It depends on the context. It
8 depends on the society. It depends on how, on the
9 individuals involved.
10 "Q How does it depend on the individuals
11 involved?
12 "A If you're asking about what makes people
13 feel comfortable, it's going to depend on the
14 individuals involved. I think that's pretty --
15 "Q So, in other words, one year you might have
16 three percent minority who all express extreme
17 comfort. The next year you might have ten percent
18 minority and none of them are comfortable because
19 they believe there aren't minorities. And in your
20 view that would mean you hadn't reached critical
21 mass in the second circumstance?
22 "A That question was a little bit too long.
23 "Q Sure. Are you saying that you could have
24 class with three percent minorities, just a
25 hypothetical three percent minorities, but they're
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1 all perfectly comfortable in the institution. If
2 they express that to you, we're comfortable you
3 say that then we've achieved a critical mass based
4 on these individuals in terms of making them feel
5 comfortable at the university.
6 "A I mean, I think -- let me go back to what I
7 said earlier which is that there are --
8 "Q Dean Lehman, let me ask you: Can you answer
9 the question? I'm giving you a hypothetical. You
10 gave a whole broad range of things and I tried to
11 pick certain ones and you've told me it's varied.
12 I'll accept that.
13 "A Right.
14 "Q But I'm just talking about the specific one.
15 I wrote your quote down. You want a sufficient
16 critical mass means a sufficient number of members
17 of the minority group so that the group, that
18 group feels comfortable in the institution. And
19 my question to you is on that issue, if you have
20 three percent minority and they came in and they
21 said we're perfectly comfortable here, in your
22 view have you reached critical mass necessary
23 to achieve that goal?
24 "A Well, if I may --
25 "Q Well, can you answer that question?
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1 "A I will try to answer that question, okay. I
2 think the question suggests you misunderstood a
3 prior answer of mine and I apologize.
4 "Q I apologize if I did, but please answer that
5 question.
6 "A In terms -- in using the term `critical
7 mass' my understanding is that we are trying to
8 pursue multiple objectives at the same time, And a
9 number of students that is sufficient to achieve
10 any one of those objectives at a given time may
11 vary from the number of students that is
12 sufficient to achieve another one of those
13 objectives at that time. And in your hypothetical
14 you're asking me is -- if I assume that the number
15 is sufficient to achieve one of those objectives
16 is sufficient, I'll say, yes, it's sufficient.
17 Is that enough to answer your question?
18 "Q That's fine. Can you go that same
19 hypothetical but now you have ten percent, you've
20 more than triple the percentage of minorities but
21 Is this due to these individuals which you said is a
22 factor.
23 A Right.
24 "Q They express extreme discomfort because they
25 believe they are -- there aren't enough members in
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1 their group in the institution, would you believe
2 then you have failed to achieve the critical mass
3 necessary to achieve the objective of making them
4 feel comfortable?
5 "A I think the answer there is yes."
6 Did I read all that correctly?
7 A I believe you did. I zoned out actually part way through
8 it. I'm sorry. I read it all myself as you were reading it.
9 Q Incidentally, I did have one more question. If next
10 year,for example, Dean Lehman, the entire class all of the best
11 students, all of the best applicants were a hundred percent
12 under-represented minorities, you'd have no problem admitting
13 all of them, having a class made up of completely
14 under-represented minorities; would you?
15 A I don't think you asked that.
16 Q No, I'm asking you that question now.
17 A Well, what you're describing now is class -- this would
18 be quite hypothetical, I guess, which would be lacking a
19 critical mass of Caucasian students. So that would be a
20 concern. If would be it -- it would raise in an interesting
21 way I guess, the flip side of the problem with your chart
22 before. The question then is how do you weigh the pedagogic
23 benefits of having a critical mass of Caucasian students in the
24 class against the other benefits that go with when you say all
25 of the -- so many extremely -- under-represented minority
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207
1 students that all of the -- you would fill up an entire class
2 with under-represented minority students without any attention
3 to race.
4 At that point we would consider the pedagogic
5 benefits of having a critical mass of Caucasian students.
6 Q Are you saying then, and if you are, just tell me and
7 we'll move on. If next year's class -- next year's applicant
8 pool was made up of this extraordinary group of students based
9 on all the qualifications as you define them in the policy and
10 as it turned out all of the students, all of the most
11 attractive students, the thousands of students that you just --
12 you couldn't get, you couldn't do without, were all members of
13 under-represented minority groups, would you have any
14 difficulty offering those admissions to each and every one of
15 them?
16 A The answer is yes, we would have difficulty for the
17 reason that I said.
18 Q Pardon me?
19 A For the reason that I said.
20 MR. PURDY: Your Honor, could we take just about a
21 five-minute break. I've got a bit more, but I just want --
22 THE COURT: Sure. We'll take a real five minutes.
23 MR. PURDY: That will be great.
24 (Court in recess, 4:15 p.m.)
25 (Court reconvened, 4:25 p.m.)
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1 BY MR. PURDY:
2 Q Dean Lehman, I ask you to look at Exhibit 15.
3 A Yes.
4 Q Do you recognize this as a grid?
5 THE COURT: I'm sorry, what exhibit number?
6 MR. PURDY: Exhibit 15, Your Honor.
7 BY MR. PURDY:
8 Q Do you recognize this as one of the grids that was
9 produced by the university's law school?
10 A Yes, I do.
11 Q And as it notes in the upper right-hand corner this is
12 the -- the run appears to be in December of 1995, so this would
13 indicate the final offers and admissions and actual yield from
14 the class entering in the fall of 1995; correct?
15 A Yes.
16 Q That would have been a class over which -- strike that.
17 You would have been serving as the Dean at that
18 time; correct?
19 A Right. The class that enrolled in the Fall of '95 would
20 have been admitted in '94-95, which was my first year as Dean.
21 Q And Dennis Shields whom you heard testify earlier last
22 week he's the individual who is responsible for selecting this
23 class --
24 A Yes, that's correct.
25 Q And I'm going to do a little different set of numbers
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1 with you, and I would like to compare. Again, we'll go first
2 to the page three which is the page for African-American
3 applicants?
4 A Yes.
5 Q And then if you could flip back until you find I believe
6 it's page seven for the Asian Pacific Island American
7 applicants.
8 A Yes.
9 Q Do you have that? All right. And if we look -- I'm
10 going to use the same 159 and 160, let's just pick that LSAT
11 range, and then we will --
12 A LSAT.
13 Q Yes, LSAT. I apologize. The LSAT range on the
14 African-American column, and we see that we have at the top
15 grade pint two out of three applicants -- two applicants, two
16 admittees; correct? African-Americans, 159 through 160, 3.75,
17 and above. I'm going to go down vertically that column so the
18 first column you see two applicants, two admittees; correct?
19 A Yes.
20 Q If you flip to the Asian American applicants there were
21 eight applicants and no offers of admission; correct?
22 A Yes.
23 Q Dropping down one grade point level, three
24 African-American applicants, three admits; do you side that?
25 A Yes.
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1 Q And if you go to the Asian Americans, twenty applicants
2 one admit; do you see that?
3 A Yes.
4 Q Dropping another grade point level, three
5 African-Americans, three admits. And going to the Asian
6 American column, twenty-two applicants and zero admits; do you
7 so that?
8 A Yes.
9 Q And then if you drop down again, we're now at 3.0 to
10 3.24. Five African-American applicants, five admits. And four
11 Asian applicants, zero admits; right?
12 A Yes.
13 Q Move to the right, move just directly to the right, over
14 -- we're going to move up to the LSAT range where 3.0 and 3.24,
15 and one sixty-one to one sixty-three, there are seven
16 African-American applicants and seven admits do you see that?
17 A Yes.
18 Q Okay. And Asian American applicants there are nine
19 applicants and zero admits; correct?
20 A Yes.
21 Q Dropping down on the African American grid to the 2.75 to
22 2.99, four applicants, four admits; do you see that?
23 A Yes.
24 Q If you go to the Asian Americans, ten applicants, and no
25 admits; do you see that?
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1 A Yes.
2 Q Obviously, Dean Lehman, these grids reflect the
3 admissions decisions that were made that year for each of the
4 groups; do they not?
5 A Yes.
6 Q And would it be fair to say that these results represent
7 examples of the extent to which being an under-represented
8 minority is taken into account in the admissions process?
9 A I think it depends on what you mean by the extent to
10 which race is -- can you say that question again? What I want
11 to get clarification from you on is what you mean by the words,
12 "extent to which."
13 Q Do these grids show us the extent to which being a member
14 of an under-represented minority is taken in account in the
15 admissions process?
16 A They are partly indicative of the extent to which race is
17 taken account in the admissions process.
18 Q I'd like you to finally turn to Exhibit 78 if you would
19 please?
20 A I don't think I have that.
21 Q We'll get it for you, I'm sorry. Take your time Dean
22 Lehman. Do you have the exhibit in front of you?
23 A Seventy-eight, yes.
24 A I'll represent to you, Dean Lehman, this is a portion of
25 a -- what is known as the University of Michigan Law School
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1 Faculty Handbook that was produced by the University the in
2 course of this case. It's been marked as Exhibit 78.
3 A Yes.
4 Q Did you recognize at least the cover of this document?
5 A Yes.
6 A And if you'll turn to the third page you see a date of
7 August, 1991?
8 A Yes.
9 Q And this was about the same time was it not, that then
10 Dean Bollinger appointed the Faculty Committee to begin looking
11 at the new admissions policy roughly at the same time; would
12 you agree?
13 A Probably the month before.
14 Q I'm going to ask you to turn page 16 of this document.
15 It's under discrimination and harassment policies. When you
16 get there, just let me know.
17 A Got it.
18 Q The -- under the first --
19 MR. PURDY: First, we'll offer this exhibit, Your
20 Honor.
21 THE COURT: Seventy-eight?
22 MR. PURDY: Yes, sir.
23 THE COURT: Any objection? Received.
24 (Trial Exhibit No. 78 received into evidence.)
25 BY MR.PURDY:
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1 Q The first paragraph says,
2 "The University of Michigan has adopted various
3 guidelines and regulations to prevent
4 discrimination or harassment based upon, for
5 example, race, gender, or sexual orientation.
6 Those policies and related information follow."
7 I want to read through this document with you. The
8 next paragraph says,
9 "The Board of Regents of the University of Michigan
10 has adopted the following statement: EQUAL
11 OPPORTUNITY/AFFIRMATIVE ACTION. The University of
12 Michigan as an equal opportunity and affirmative
13 action employer complies with applicable federal
14 and state laws prohibiting discrimination
15 including Title 9 of the Education Amendments
16 of 1972, and Section 504 of the Rehabilitation Act
17 of 1973."
18 And then the next sentence, Dean Leham, I'd like you
19 to pay particular attention to -- it says, quote,
20 "It is the policy of the University of Michigan
21 that no person on the basis of race, sex
22 color, religion, national origin or ancestry, age,
23 marital status, handicapped or Vietnam era
24 veteran status, shall be discriminated against
25 in an employment, educational programs and
BENCH TRIAL - VOLUME 5
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1 activities or admissions."
2 Did I read that correctly?
3 A Yes.
4 Q And then drop to the next paragraph in bold and it says,
5 "The President of the University of Michigan has
6 promulgated the following policy which was
7 subsequently endorsed by the Board of Regents in
8 February, 1988.
9 "The University of Michigan believes that
10 educational and employment decisions should based
11 on individuals' abilities and qualifications and
12 should not be based on irrelevant factors or
13 personal or personal characteristics which have no
14 connection academic abilities or job performance.
15 Among the traditional factors which are generally
16 `irrelevant' are race, sex, religion, and national
17 origin."
18 Did I read that correctly?
19 A Yes, you did.
20 Q At the bottom, Dean Lehman, it notes in bold,
21 "The law school, of course, embraces both policies
22 and makes the following statement in its
23 materials."
24 It then repeats the policy of non-discrimination;
25 does it not?
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1 A Yes.
2 Q Dean Lehman, does the law school still embrace both of
3 these policies today?
4 A I don't actually know the text of the Regents -- I mean,
5 I don't know if these have been -- this is 1991. I don't know
6 if the text has changed since 1991.
7 MR. PURDY: That's all I have, your Honor.
8 THE COURT: Mr. Payton, anything?
9 MR. PAYTON: Yes.
10 REDIRECT EXAMINATION
11 BY MR. PAYTON:
12 Q Dean Lehman, Mr. Purdy asked you a series of questions
13 about the grids, Exhibit 15?
14 A Yes.
15 Q And he went down a number of cells and he compared what
16 the grids showed as the results of decisions regarding
17 African-American students, and then he compared it in cells to
18 Asian and Pacific Islanders; do you recall that?
19 A Yes, I do.
20 Q Now, these grid do not reflect a decision-making process;
21 do they, they're just the results after the fact.
22 A Yes.
23 Q Can you tell what those students, any of them looked like
24 if you looked at their files?
25 A Can I tell from the grids what these students look like
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1 as people?
2 Q Yes.
3 A No.
4 Q Now,let's just take what is on the grids: grades and
5 LSAT?
6 A Can I get the grid?
7 Q You can, but I'm going no further than grades and LSAT.
8 A Yes.
9 Q And the cells and the cells he went through were to look
10 at the cells in which the students were exactly the same?
11 A Yes.
12 Q Okay. And in the cells --
13 A The same on those dimensions.
14 Q On just those two things. And in the cells where the
15 students were exactly the same he saw that there was some
16 differences in the outcomes in those particular cells he looked
17 at, okay. And the question is: From looking only at those
18 cells, using just grades and LSAT where they were exactly the
19 same, can you tell what the extent of the use of race was
20 simply because the outcomes appear to be different?
21 A No.
22 Q Why not?
23 A For race to be a factor in admissions -- he asked the
24 question can you tell and I said it's hard to tell. For race to
25 be a factor there has to be some cases where race makes a
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1 difference. How much of a difference race makes in any
2 different case, in any single case, is not something that you
3 can tell from the number of cases that are just like that.
4 It's not the number of cases in a cell that tells you the
5 extent to which race is making a difference. And that's
6 assuming that the cell gets everything, which of course, as I
7 said in my original testimony it doesn't. There's a lot of
8 information and I expressed my concerns about GPA even to
9 define the cell. To get information about the extent to which
10 race makes a difference it's helpful to know that there are
11 cases which are similarly situated where you decide in opposite
12 directions because you place a value on the university.
13 There's other information in that grid though about
14 race that's significant and that's the total pool size. You
15 could see just from the grid the total number of applicants
16 and so the likelihood of having a critical mass of Asian
17 Americans as opposed of African-Americans in that class.
18 Q Let's just take his assumption no matter how improbable
19 it may be that the only information we have is those two pieces
20 of information, grades and test scores, and we have identical
21 students. We have an African-American and we have a Asian
22 Pacific Islander. We then look at the decisions and we're
23 trying to figure out if race made a difference and we say it
24 seems to have made a difference, can we tell how much race was
25 valued that it tipped that scale?
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1 A No, you can't tell it by the existence of the cell, and
2 you can't tell it by the number of people who are just like
3 that. Having more people in that circumstance doesn't answer
4 the question either, no.
5 MR. PAYTON: Nothing further.
6 MS. MASSIE: I have a few.
7 RECROSS-EXAMINATION
8 BY MS. MASSIE:
9 Q I'm going to direct your attention to some of the
10 questions Mr. Purdy was asking you about the law schools in
11 California post SP1, and then Proposition 209. I'm going to be
12 very brief was we're going to have a witness tomorrow who's
13 going to talk about alternatives to affirmative action and the
14 impact of 209 and the Hopwood decision and so forth.
15 First of all, Dean Lehman, are you aware that the
16 state of California is now majority minority?
17 A Yes.
18 Q And you were asked by Mr. Purdy whether it would surprise
19 you to know that the UC law schools, which is to say, UC
20 Berkeley, UCLA, U. S. Davis, are ten percent less, somewhat
21 less than ten percent under-represented minority and you said
22 it wouldn't surprise you; is that right?
23 A I think I said that in response to a question about
24 Berkeley in particular.
25 Q I apologize. Would it surprise you to know that class,
BENCH TRIAL - VOLUME 5
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1 the current class, the first-year class at U.C.S.L. currently
2 contains five black students, and that's a public law school in
3 the city of Los Angeles?
4 A No, I heard that before.
5 Q And last year it contained three black students; would
6 that surprise you?
7 A No, it wouldn't surprise me.
8 Q And the years before Proposition 209 and SP1 took effect
9 it commonly contained twenty black students or more per class?
10 A Yes.
11 MS. MASSIE: That's all I have.
12 THE COURT: Okay. Dean, thank you, very much.
13 Will you be here tomorrow?
14 THE WITNESS: Yes, I will.
15 THE COURT: The defense rests I suspect other than
16 housekeeping things such as exhibits.
17 MR. PAYTON: I believe that's our last witness
18 obviously depending on what may come in the way of rebuttal.
19 If we have the burden we may have to think about what -- if we
20 want to bring someone back. But that's our last live witness.
21 We will have to go through the documents and work that out,
22 all the parties about what goes in.
23 And I should just mention to the Court that given
24 where we are and given what the Court is considering with
25 respect to whether or not Bakke is controlling or whether or
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1 it's a compelling interest to seek a racially and ethnically
2 divided student body, we are going to include in what we are
3 going to try to put into the record the various expert
4 reports. We're not bringing witnesses on that. But since the
5 Court already has expert reports before the Court in summary
6 judgment, I don't see any reason why they shouldn't be in this
7 trial record as well.
8 MR. KOLBO: Well, your Honor, I haven't considered
9 that yet. I have concern, we can't cross-examine expert
10 reports about the experts.
11 THE COURT: I'm not sure we have to put them in the
12 record of this trial, but they are in the record of this case
13 because all of them have been attached at one time or another
14 to the motions for summary judgment.
15 MR. PAYTON: I understand that. I just think that
16 given that the Court is going to make a ruling on that, and
17 these are part of the materials that the Court took into
18 account I'm not proposing to call witnesses, I don't see why
19 they shouldn't be in the record.
20 THE COURT: I'm not disagreeing with you, but I
21 think they should be part of the summary judgment record, not
22 part of the trial record. And they are part of the summary
23 judgment record because they are attached to the motions for
24 summary judgment, every report here except maybe Dean
25 Syverud's last -- second supplement is not.
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1 MR. PAYTON: They're certainly in the summary
2 judgment record. I don't see why they shouldn't be in both. I
3 don't think it harms anything at all.
4 THE COURT: I'll give the Plaintiff an opportunity
5 to think about. It doesn't make any difference because I'm
6 going to rule on that issue as a result of the motions for
7 summary judgment and they are very much part of the motions
8 for summary judgment.
9 MR. PAYTON: That's why I think there's no reason
10 not to do it, but that's where we are right now.
11 THE COURT: You guys can talk about it. If it comes
12 to a point I have to make a ruling whether it should be part
13 of this record or part of the other record I'm not sure it
14 makes any difference.
15 Okay, we'll start tomorrow with Professor Orfield.
16 (Court in recess, 4:30 p.m.)
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