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








                                                                           1

                1                     UNITED STATES DISTRICT COURT

                2                FOR THE EASTERN DISTRICT OF MICHIGAN 

                3                          SOUTHERN DIVISION

                4    

                5    BARBARA GRUTTER,

                6    For herself and all others 

                7    Similarly situated --

                8                Plaintiff,

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

               10    LEE BOLLINGER, JEFFREY LEHMAN,

               11    DENNIS SHIELDS, and REGENTS OF

               12    THE UNIVERSITY OF MICHIGAN,

               13                Defendants,

               14                And

               15    KIMBERLY JAMES, et al.,

               16                Intervening Defendants.

               17    ------------------------------------/          VOLUME 12

               18                             BENCH TRIAL

               19              BEFORE THE HONORABLE BERNARD A. FRIEDMAN

               20                    United States District Judge

               21               238 U.S. Courthouse & Federal Building

               22                    231 Lafayette Boulevard West

               23                          Detroit, Michigan

               24                     SATURDAY, FEBRUARY 10, 2001

               25    













                                                                           2

                1           APPEARANCES:

                2    

                3           FOR PLAINTIFF:  Kirk O. Kolbo, Esq.

                4                           R. Lawrence Purdy, Esq.

                5    

                6           FOR DEFENDANTS:  John Payton, Esq.

                7                            Craig Goldblatt, Esq.

                8                            Stuart Delery, Esq.

                9                            On behalf of Defendants.

               10    

               11                            George B. Washington, Esq.

               12                            Miranda K.S. Massie, Esq.

               13                            On behalf of Intervening Defendants.

               14    

               15           COURT REPORTER:  Joan L. Morgan, CSR

               16                            Official Court Reporter

               17    

               18    

               19    

               20    

               21    

               22    

               23    

               24    

               25    













                                                                           3

                1                            I  N  D  E  X

                2           

                3           WITNESS:                           PAGE:

                4    

                5    ORAL ARGUMENTS RE: WITNESS, GAIL HERIOT

                6    By Mr. Goldblatt                             5

                7    By Mr. Washington                           10

                8    By Mr. Kolbo                                11

                9    

               10    REBUTTAL WITNESS CALLED ON BEHALF OF PLAINTIFF

               11    KINLEY LARNTZ, PhD

               12    Direct Examination by Mr. Kolbo             19

               13    Cross Examination by Mr. Delery             56

               14    Cross Examination by Ms. Massie            101

               15    

               16    

               17                       E  X  H  I  B  I  T  S

               18                                    MARKED    RECEIVED

               19    Trial Exhibit 225                           54

               20    Trial Exhibit 226                           54

               21    Trial Exhibit 227                           54

               22    

               23    

               24    

               25    













                                                                           4

                1                          Detroit, Michigan

                2                     Saturday, February 10, 2001

                3                       (At or about 8:33 a.m.)

                4                              -- --- --

                5            THE COURT:  Let's talk first, if we might just take 

                6    a second, and we have --

                7            MR. WASHINGTON:  Could we wait just a minute?  I 

                8    think Ms. Massie is having car trouble, and she is going to 

                9    be handling today, so if we could wait for a minute, I'd 

               10    appreciate it.

               11            THE COURT:  Oh, I'm sorry.  I didn't notice she 

               12    wasn't here.  Of course, it may go much quicker.

               13            MR. WASHINGTON:  I understand.

               14            THE COURT:  I'm kidding.  No, we will definitely 

               15    wait. 

               16            Can we argue the motion in terms of the witness, 

               17    Gail Heriot, or is Ms. Massie handling that, also?

               18            MR. WASHINGTON:  I can argue that, I suppose. 

               19            THE COURT:  It's up to you.

               20            MR. WASHINGTON:  We are really supporting the 

               21    University's position, so, yeah, fine.  We would be happy 

               22    to do that. 

               23            MR. PAYTON:  Your Honor, Mr. Goldblatt will be 

               24    arguing this motion. 

               25            MR. GOLDBLATT:  Good morning, Your Honor.













                                                                           5

                1            THE COURT:  Good morning. 

                2            MR. GOLDBLATT:  The Defendants have brought this 

                3    motion to exclude the proffered expert testimony of Gail 

                4    Heriot.  She is a proposed expert submitted by the 

                5    Plaintiffs.  She has submitted an expert report in this 

                6    matter.  I believe it's Proposed Exhibit 136, Your Honor, 

                7    and that's a report about diversity. 

                8            It's a report about the opinions of Professor Heriot 

                9    that policies like the ones at issue here that involve the 

               10    consideration of race as a factor in admissions don't bring 

               11    about benefits, don't improve, in sum, the educational 

               12    experience. 

               13            As the Court is aware, the Defendants have prepared 

               14    a case directed exactly at that issue.  We believe it is the 

               15    most rigorous, comprehensive, thorough-going empirical case 

               16    proving that students who are brought together on campuses 

               17    that are diverse in many ways, including with respect to 

               18    race, receive a better education.  They learn better, the 

               19    schools prepare better citizens, the law schools prepare 

               20    better lawyers. 

               21            And that interest, that diversity is compelling, not 

               22    just as that term is used as a matter of legal doctrine, but 

               23    in its plain English sense that that interest is compelling.  

               24    It's a case, Your Honor, that the Defendants and the 

               25    University are quite proud of.  We would be delighted to put 













                                                                           6

                1    on that case. 

                2            And we had, of course, a number of witnesses 

                3    prepared to speak to that issue, Professor Garin, Darren 

                4    Bok, Thomas Shagru, Albert Camareo.  The Court hasn't seen 

                5    any of those witnesses, and the reason for that, of course, 

                6    Your Honor, is that this Court's ruling on December 22nd 

                7    said that that question was out of this trial. 

                8            Our testimony, the reports that we put in, are part 

                9    of the summary judgment record, and everyone agrees, they 

               10    are going to travel with this case as it makes its way 

               11    through the Federal Judiciary, and that's the Court's ruling 

               12    and we will, of course --

               13            THE COURT:  You mean everyone is not accepting my 

               14    ruling in this case?

               15            I'm just kidding, go on.  I thank God for the Court 

               16    of Appeals every day, so. 

               17            MR. GOLDBLATT:  Your Honor, this is what Mr. Purdy 

               18    said when we were talking about this issue.  He said, "And 

               19    of course, Your Honor, as everyone has made clear, no one is 

               20    contesting that there are educational benefits of diversity.  

               21    It is simply not an issue in this case." 

               22            Now, what Professor Heriot's report says is that 

               23    there aren't sufficient benefits to justify policies like 

               24    these, and in that sense, what the Plaintiff is purporting 

               25    to do is to put on a witness who is going to say that which 













                                                                           7

                1    Mr. Purdy told this Court isn't true.  And Your Honor, we 

                2    just think that the Plaintiffs should be stopped from doing 

                3    that. 

                4            But there is another reason, also, Your Honor.  It's 

                5    that Professor Heriot isn't an expert within the meaning of 

                6    the Federal Rules of Evidence.  She shouldn't be allowed to 

                7    offer opinion testimony in this case.  She certainly has 

                8    opinions, but there are cases, as this Court is of course 

                9    aware, like Daubert and Cumo Tire that make clear that 

               10    before those opinions become evidence in a case this Court 

               11    plays a gatekeeping role, and before she is permitted to 

               12    offer opinion testimony there are certain standards that 

               13    need to be satisfied. 

               14            Professor Heriot doesn't have any degree that's 

               15    relevant to her testimony at all.  She is a lawyer.  She has 

               16    the same degree that many of us have.  She teaches court 

               17    law.  She says that she has, quote, "studied the policy and 

               18    legal aspects of the issue of racial preferences."  That's 

               19    from her deposition, Your Honor.  And she said those two 

               20    things, the policy aspects and the legal aspects, are 

               21    interconnected.  But this isn't a subject that she has 

               22    even taught. 

               23            The law is clear, Your Honor, that the testimonial 

               24    latitude, I think that's a quote from Daubert, that expert 

               25    witnesses get that allow them to say more than just their 













                                                                           8

                1    firsthand factual testimony isn't something a witness earns 

                2    just by having an opinion.  There are standards, and with 

                3    respect to the specialized knowledge to which an expert 

                4    witness will testify there needs to be evidence that the 

                5    testimony is reliable, that it's more than just one person's 

                6    opinion. 

                7            This Court mentioned yesterday that there was a copy  

                8    of the Daubert opinion on the Bench, and it's actually an 

                9    encapsulation of that opinion and subsequent Supreme Court 

               10    case that I mentioned, it's the Cumo Tire case, and on 

               11    pages, I think it's 149 and 150 of that case, the Supreme 

               12    Court tells us exactly what the questions are that we're 

               13    supposed to ask here.  There are essentially four questions. 

               14            Is there a theory or a technique that's been tested?

               15            THE COURT:  Does it say -- I don't have the case 

               16    here, I have the same thing you have, the four questions 

               17    right there.

               18            MR. GOLDBLATT:  Exactly, Your Honor. 

               19            Is there a theory or a technique that's been 

               20    tested?  Have the opinions been subject to peer review 

               21    and publication?  Are there standards we can look to to 

               22    determine that the opinions are reliable?  Is there some 

               23    technique or theory that's gained general acceptance within 

               24    a relevant scientific community?

               25            Your Honor, the answer to every single one of those 













                                                                           9

                1    questions is no.  This isn't a close case under Daubert and 

                2    Cumo Tire.

                3            Another subject that Professor Heriot discusses in 

                4    her report is Proposition 209 and its effects, but it should 

                5    be noted, Your Honor, that Professor Heriot doesn't even 

                6    teach at a public university in the University of California 

                7    system.  She teaches at a private university, the University 

                8    of San Diego Law School, a university that, by the terms 

                9    of Prop 209, isn't affected.  It's not, Your Honor, the 

               10    University of California at San Diego that Dean Garcia was 

               11    discussing, it's a private university not affected by 

               12    Proposition 209. 

               13            And in this case, the Daubert qualifications of the 

               14    witness with respect to that question, the effects of 209, 

               15    aren't any better than they are with respect to the benefits 

               16    of diversity.  All four questions, again, all four Daubert 

               17    questions are answered no. 

               18            Your Honor, this is really just one person's 

               19    opinion.  It's exactly the kind of testimony that cases like 

               20    Daubert and Cumo Tire say aren't evidence, aren't evidence 

               21    in the Federal Court under the Federal Rules.  I don't doubt 

               22    that these opinions are genuine, that they are sincerely 

               23    held, but that doesn't make them competent evidence and 

               24    Professor Heriot should be precluded from offering them 

               25    here.













                                                                           10

                1            THE COURT:  Thank you. 

                2            MR. WASHINGTON:  Your Honor, we certainly agree with 

                3    Mr. Goldblatt's remarks on this.  I would just add a couple 

                4    more. 

                5            I think insofar as Professor Heriot purports to 

                6    testify as to the effects of 209 on the educational system 

                7    of the State of California, there is no evidence that she 

                8    has ever taught at the University of California other than 

                9    in speeches or forums organized by the proponents of 209.  

               10    There is not even any indication that she has ever had any 

               11    connection with the University of California.  There is no 

               12    indication that she has published any studies other than 

               13    popular articles about the University of California. 

               14            Her report contains at most some alleged statements 

               15    about grades at the public university in the City of San 

               16    Diego, which as I understand is a city of something like 

               17    three million people, and there is no indication where or 

               18    how she got that or how she has any particular expertise 

               19    at all. 

               20            There is no technique or theory here that this 

               21    witness has.  She has not submitted anything to any peer 

               22    review.  There is no kind of background in education, 

               23    anything of that nature, and in that regard, I think this 

               24    is really the rankest of lay testimony by a partisan in the 

               25    debate brought here to say things which aren't true, but 













                                                                           11

                1    more relevant than that, are not competent as testimony. 

                2            So we certainly think this witness should not be 

                3    allowed to testify.

                4            MR. KOLBO:  Your Honor, I guess my response in a 

                5    few words is, surely they jest.  They must be making these 

                6    arguments, in part, tongue in cheek, and I want to address, 

                7    first of all, the relevance issue. 

                8            It's true that we made some objections early in this 

                9    case to any testimony about the value of diversity, and I 

               10    suspect if there hadn't been any testimony about the value 

               11    of diversity, and there has been a lot in this case from 

               12    both the Defendants and the Intervenors, that we wouldn't 

               13    be at least putting on Professor Heriot to talk about that 

               14    issue.

               15            And we understand that the Trial Court's issue is 

               16    limited, but this case, as has been mentioned, is going 

               17    to be heard on appeal and we think it would just not be 

               18    appropriate for there to be lots of evidence on the 

               19    Defendants' side of the case, on the Intervenors' side of 

               20    the case, about the value of diversity, but none, even 

               21    from one witness, the one witness that the Plaintiffs have 

               22    offered in rebuttal on that particular issue.  We think that 

               23    would be just highly inappropriate. 

               24            And just so I can illustrate my point, Your Honor, 

               25    when Mr. Goldblatt says that they had a case that they 













                                                                           12

                1    wanted to bring with respect to diversity and they didn't 

                2    bring it, it's true, there are some witnesses that they had 

                3    on that issue that they haven't called, but they elicited 

                4    very directly and clearly and over our objection a number, a  

                5    substantial amount of testimony on the issue of the value of 

                6    diversity, what critical mass is, and why it's important. 

                7            They obtained that testimony, Your Honor, not 

                8    necessarily always from qualified or formally qualified 

                9    experts, but from people who are educators. 

               10            President Bollinger testified why he believes 

               11    diversity is important, why critical mass is important.  

               12    Dean Lehman testified about why diversity is important, why 

               13    critical mass is important and how you go about achieving 

               14    it.  Professor Lempert testified on that issue, as well, 

               15    at length, and of course, they called Professor Severud 

               16    on that issue, really only on that issue in terms of the 

               17    importance of diversity and how you get it and so forth. 

               18            So it just seems absurd to me, Your Honor, to 

               19    suggest that it's not an issue in the case, and therefore, 

               20    the Plaintiffs shouldn't be able to call a witness even in 

               21    rebuttal on those issues.  It just doesn't make -- it 

               22    doesn't pass the smile test, Your Honor, is I guess what 

               23    I would say about that. 

               24            With respect to the substance of Professor Heriot's 

               25    testimony, she is not going to testify just about diversity 













                                                                           13

                1    and whether it's important.  Her report, Your Honor, is 

                2    before the Court and I think you have a sense about what 

                3    she is going to testify about.  Her view is, there is 

                4    nothing wrong with diversity, certainly diversity, 

                5    intellectual diversity is a good thing.  You'd rather have 

                6    it. 

                7            But one of the things she is going to testify to is 

                8    how you go about getting it, and what she says, you don't 

                9    have to work very hard to get diversity in the classroom, 

               10    it pretty much comes naturally.  If you're going to have a 

               11    classroom of 30 students, people are individuals, they bring 

               12    by their very nature different experiences, outlooks and 

               13    backgrounds, so you don't have to do much to bring it and 

               14    you certainly don't have to use racial preferences to 

               15    achieve diversity in the schools. 

               16            We think that's relevant to the issues in the case 

               17    and it's certainly, it's certainly relevant rebuttal 

               18    testimony to the voluminous testimony that the Defendants 

               19    have brought.  And I haven't even mentioned the Intervenors, 

               20    Your Honor.  They have marched student after student up here 

               21    to talk about their classroom experiences and so forth.  We 

               22    had Professor Garcia yesterday talking about diversity on 

               23    campuses that he's not even involved with at the University 

               24    of California system. 

               25            So I think it's just frankly a little absurd to 













                                                                           14

                1    say that the issue isn't in the case, and therefore, the 

                2    Plaintiffs shouldn't be able to bring a witness to respond 

                3    to their witnesses.  What they are really trying to do, 

                4    Your Honor, is to suggest that there should only be one side 

                5    heard on this issue.  Their side has been heard and our side 

                6    should be heard, and from the one witness that we intend to 

                7    call on this issue. 

                8            If I may then, Your Honor, address the issue of 

                9    qualifications, again, I have to say that this brings a 

               10    little bit of a smile to my face when I hear that Professor 

               11    Heriot, first of all, is not qualified to testify on the 

               12    subject of legal education, the very same subject that, 

               13    again, President Bollinger testified about, Professor and 

               14    Dean Lehman testified about, Professor Lempert testified 

               15    about, Professor Severud testified about. 

               16            Our witness, Your Honor, Gail Heriot, is a professor 

               17    of law and a full professor of law.  She has been teaching 

               18    since 1989.  She was Dean for a year at George Mason 

               19    University.  When we're talking about diversity, as I 

               20    understand, what I have heard from the witnesses on the 

               21    other side, we're talking about what goes on in the 

               22    classroom, what's important, what does diversity bring to 

               23    the classroom, what does it bring out of the students, how 

               24    does it affect the teacher's performance and so forth. 

               25            I don't know how anybody could bring more expertise 













                                                                           15

                1    to that subject than someone who is, in fact, a legal 

                2    educator and I think that's all that's required to pass the 

                3    expert testimony threshold in this case.  That's all it took 

                4    for their experts on that subject.  That's all it took for 

                5    their lay witnesses to testify on the subject of the value 

                6    of diversity.  So there is just -- it's just not a serious 

                7    argument to suggest that our witness, a full professor of 

                8    law and a teacher of education and one who has thought about 

                9    and researched some of these issues, doesn't have the basic 

               10    threshold qualifications to present testimony. 

               11            Now, I understand they think their experts are 

               12    better qualified.  They think more of Professor Severud than 

               13    they think of Professor Heriot in terms of credentials and 

               14    they are certainly entitled to think that and they can 

               15    certainly argue in terms of the weight of the testimony on 

               16    that.  We think Professor Heriot is very highly qualified 

               17    and her opinions will be or should be well received by the 

               18    Court, so it's just not a matter of throwing her testimony 

               19    out. 

               20            And finally, Your Honor, with respect to the issue 

               21    of California, again, I have to smile.  They are suggesting 

               22    that a professor in California is not appropriate to testify 

               23    about the effects of Proposition 209 in California.  I 

               24    didn't hear exactly what Professor or President Bollinger's 

               25    or Dean Lehman's or Professor Lempert's or Dean Severud's 













                                                                           16

                1    qualifications were to testify about California, and they 

                2    did testify about what they thought would be the dire 

                3    consequences in Michigan, based on California, if race 

                4    couldn't be used as a factor, so it's just not a serious 

                5    argument to suggest that their Michigan professors are 

                6    better able to tell this Court about California than a 

                7    California professor. 

                8            And finally, Your Honor, with respect to that issue, 

                9    they seem to misunderstand the point that we thought has 

               10    already been brought out in this case, which is the 

               11    consequences of Proposition 209 aren't just limited to 

               12    the Berkeley campus and they aren't just limited to the 

               13    University of California system, and they are not even just 

               14    limited to the public schools of California. 

               15            One of the things that Professor Heriot is going to 

               16    testify concerning is that Proposition 209 has had positive 

               17    consequences, and those positive consequences extend to 

               18    schools that aren't even in the California system, schools 

               19    like hers, where she has seen improvements in the quality 

               20    of classroom discussion and so forth as a result of 

               21    Proposition 209 and what she believes should be attributed 

               22    to it.  So there is a great deal of relevance there and she 

               23    certainly has foundation to testify in these matters, Your 

               24    Honor. 

               25            THE COURT:  In this matter, I know, Mr. Goldblatt, 













                                                                           17

                1    you would like to say some more, but let me just -- no use 

                2    taking a lot of time on it. 

                3            As to qualifications, I will have to listen to what 

                4    the qualifications are.  I hear both sides arguing what the 

                5    qualifications may or may not be, but I'll tell you in no 

                6    uncertain terms that I'm going to use the same standard 

                7    that I have used throughout this case, and there have been 

                8    witnesses that have testified that have done no studies, 

                9    there have been witnesses that have testified that they have 

               10    had no formal teaching and so forth, but that the Court has 

               11    ruled that they could testify, because the reason being is, 

               12    that they do have special knowledge because of their 

               13    position and so forth. 

               14            For instance, I think Mr. White was very helpful 

               15    after we heard his testimony and I think he was very 

               16    credible in terms of what he had to say and the statistics 

               17    and so forth, though he had no formal training, hadn't done 

               18    any personal studies or anything of that nature, and I am 

               19    going to use the same kind of test. 

               20            Even Dean Severud, obviously, had no formal 

               21    training, but he had been around a long time and had taught 

               22    courses, he had done things that perhaps, judicial Daubert, 

               23    you know, you would say, well, that wouldn't apply. 

               24            I only give you these examples because I know that 

               25    this person is coming from a long way and so forth, but I'm 













                                                                           18

                1    saying that I can't rule on her qualifications until I hear 

                2    them, until I have had an opportunity to have the Plaintiff 

                3    present them and the Defense and the Intervenors voir dire 

                4    the witness and then I can make that determination.  It's 

                5    hard to do in the abstract, though. 

                6            As I indicated, I have listened to both sides and 

                7    I want both sides to know that I'm going to use the same 

                8    standards that I have used for everybody at this point. 

                9            My other issue is that certain matters have arisen 

               10    that were important and I wanted to hear them, and I have 

               11    heard them, that perhaps the Plaintiff was not anticipating 

               12    or so forth, and this is rebuttal, and I'm going to treat 

               13    it as rebuttal and it's going to be limited to -- her 

               14    testimony, if permitted, is going to be limited to rebut 

               15    those things that have been put into the record by the 

               16    Defense and the Intervenors. 

               17            So with that said, I suspect the Plaintiffs will 

               18    call and we will have some voir dire as to qualifications 

               19    and I will make that ruling, and my ruling, should I allow 

               20    her to testify, will be that it's limited to rebut those 

               21    issues that have been raised by the Defense or by the 

               22    Intervenors. 

               23            Okay.  Mr. Goldblatt? 

               24            MR. GOLDBLATT:  No, thank you, Your Honor. 

               25            MR. KOLBO:  Your Honor, we appreciate the Court and 













                                                                           19

                1    the Parties' agreement to take our first rebuttal witness 

                2    out of order.  We will recall Professor Kinley Larntz to 

                3    the stand, Your Honor. 

                4            THE COURT:  Welcome.  

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

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

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

                8    truth, and nothing but the truth, was examined and testified 

                9    as follows:

               10                     DIRECT EXAMINATION

               11    BY MR. KOLBO:

               12      Q   Dr. Larntz, thank you for coming again. 

               13            In the interim, I think it's been a couple of weeks 

               14    or so since your testimony, you understand that Professor 

               15    Steven Raudenbush offered testimony with resect to the same 

               16    issues, in some respects, in response to your testimony?

               17      A   Yes, I understand that. 

               18      Q   Now, you weren't here in the courtroom for that 

               19    testimony, were you?

               20      A   I was not. 

               21      Q   But have you been able to review a transcript of 

               22    Dr. Raudenbush's testimony?

               23      A   I have. 

               24      Q   And do you understand that Dr. Raudenbush took issue 

               25    with some of -- some aspects of your testimony and report?













                                                                           20

                1      A   Yes. 

                2      Q   Have you also reviewed your own transcript, trial 

                3    transcript testimony in this case?

                4      A   Yes. 

                5      Q   Were you able to ascertain from reading, perhaps 

                6    rereading or reading your testimony, as well as 

                7    Dr. Raudenbush's testimony, were you able to ascertain 

                8    whether you had already addressed or covered some of the 

                9    issues that Dr. Raudenbush took issue with in his testimony?

               10      A   Well, certainly.  I mean, we exchanged our reports 

               11    before and I, in my direct testimony, offered information 

               12    on a number of criticisms that he talked about in his 

               13    testimony, yes. 

               14      Q   And did you, in reviewing your testimony -- you 

               15    understood that you had already responded to some of those 

               16    or anticipated some of those in your direct testimony?

               17      A   A good number, I think, yes.

               18      Q   Did you also come to the conclusion that there were 

               19    some aspects of Dr. Raudenbush's testimony that you hadn't 

               20    really addressed or hadn't been explained in your direct or 

               21    cross examination that occurred?

               22      A   There are a few points, yes. 

               23      Q   Okay.  I want to just limit, obviously, our questions 

               24    and answers this morning to that, so please keep your 

               25    answers limited to that respect. 













                                                                           21

                1            And I'm going to ask you about some criticisms that 

                2    Dr. Raudenbush raised and to the extent that you don't 

                3    believe they were addressed either in your prior direct or 

                4    in your cross examination, I would like you to respond to 

                5    some of these criticisms, if you have some opinions. 

                6            First of all, do you recall that Dr. Raudenbush had 

                7    a criticism with respect to the fact that there are -- that 

                8    in determining or ascertaining odds ratios, there are high 

                9    odds ratios that don't reflect large differences in 

               10    probability; that is, at higher ranges of probabilities, so 

               11    they don't reflect large odds ratios?

               12      A   There were cases presented by Dr. Raudenbush, and also 

               13    I think in my cross examination relating to odds ratios that 

               14    may be relatively high where the difference in probabilities 

               15    is not -- well, depending on how you think, not great. 

               16      Q   Do you understand what the criticism is of your report 

               17    and testimony in that area?

               18      A   Well, I think my understanding is that the -- while 

               19    there may be relatively high odds ratios, there isn't much 

               20    of a difference in probability, and I think it's important, 

               21    I think it's very important that the Court understand and 

               22    that everyone understand the effect of odds ratios on 

               23    probabilities. 

               24            And I tried originally to provide some illustrations 

               25    and they provided some illustrations and I just want to make 













                                                                           22

                1    sure that we're very clear on the relationship from a 

                2    baseline probability how a particular odds ratio would 

                3    translate into another probability. 

                4            So for instance, a baseline probability, I think in 

                5    my direct examination we talked about a baseline probability 

                6    of 10 percent going to 90 percent from an odds ratio of 81 

                7    and so I wanted to -- I wanted to make sure we were clear 

                8    about how that works over the whole range of probabilities. 

                9      Q   And did you read in the reports of Dr. Raudenbush's 

               10    testimony where he compared relative probabilities of, say, 

               11    90 versus 99 percent and the effect of going from 90 to 99 

               12    to 999 and so forth?

               13      A   Yes, yes, I did read that. 

               14      Q   And what is demonstrated by that?

               15      A   It's again illustrating for a certain baseline 

               16    probability how relative odds of a particular value would 

               17    translate into another probability for another group.

               18      Q   And I think you have testified, you indicated this 

               19    morning that you have prepared something to illustrate the 

               20    range of probabilities?

               21      A   What I did, what I did is it's in the booklet that I 

               22    think you have, and the last page of the booklet, what I did 

               23    was prepare just a table, and we have it as a slide. 

               24            I prepared a table for a range of probabilities over 

               25    the whole range, rather than just choose a certain point, 













                                                                           23

                1    where I used 10 percent as a base, and they, Dr. Raudenbush, 

                2    used 90 percent for the whole range of probabilities, going 

                3    from a base of one percent, a baseline probability of one 

                4    percent up here in the corner, all the way down to, I think 

                5    it's 99, down in the bottom. 

                6            And so what I did is I did it for various relative 

                7    odds and I chose values that we have seen results of, 5, 10, 

                8    20, 50, 100, 200.  I have chosen -- what I have done is I 

                9    have said, how does this baseline probabilities translate 

               10    into the probability of another group that has a relative 

               11    odds of a given amount. 

               12            So for instance, for instance, Dr. Raudenbush had 

               13    90 percent, and I think was looking at 90 versus 99, and 

               14    that's a relative odds of 11.  I don't have 11 on this 

               15    table, but I have 90.  I have 10, and 90 goes to what, 98.9.  

               16    And then talking about 111, I think, was one of the ones he 

               17    used, and 90 goes to -- he had 111, I have 100, and 90 goes 

               18    to 99.89. 

               19            So these are -- I'm referring to them as fractions, 

               20    but we often talk in terms of percentages.  And other 

               21    values, well, for instance, 10 percent, I had reported 

               22    10 percent with an odds ratio of 81 going to 90.  Well, we 

               23    can see 10 percent here going, well, at 100, goes to 91.7.  

               24    And all I have done on this table is just to make sure we're 

               25    clear what the effect of a relative odds is on a baseline 













                                                                           24

                1    probability.  And that's the only purpose of the table, is 

                2    for clarification. 

                3      Q   Let me ask, Doctor, Dr. Larntz, do you disagree with 

                4    Dr. Raudenbush's premise that when you start with a high 

                5    baseline probability like 90 and then have a comparative 

                6    probability of 99, that odds ratios go up rapidly as 

                7    those probabilities diverge?

                8      A   Well, sure, the odds do, the odds ratios do go up  

                9    mathematically.  They are what they are, and that's what 

               10    this table is trying to just illustrate, what the 

               11    mathematics is, and I think that's clear. 

               12            In point of fact, in that particular case, if you 

               13    look at the percentage denied, obviously they go up or 

               14    they go from 10 percent to one percent, so that's a big 

               15    difference in that probability scale. 

               16      Q   So as I understand it, you agree with Dr. Raudenbush 

               17    on that fundamental principal?

               18      A   On the calculation, absolutely, there is no 

               19    disagreement on the calculation.  That's why I provided 

               20    the table, so you can see the whole range of possible 

               21    calculations.

               22      Q   And does that mathematical fact, does that change 

               23    anything with respect to your opinions on the extent to 

               24    which race is taken into account in the admissions process?

               25      A   No, no. 













                                                                           25

                1      Q   Dr. Larntz, were you also -- did you also understand 

                2    that Professor Raudenbush in his testimony took issue with 

                3    your -- or criticized you for what he called discarding some 

                4    of the data in your analysis or selectively attending to the 

                5    data?

                6      A   Yes, I did read that, yes. 

                7      Q   Do you have an opinion with respect to the validity of 

                8    that criticism?

                9      A   You mean the fact that different parts of the data 

               10    provide different amounts of information?  I certainly have 

               11    an opinion that that's true, and I'm not quite sure -- in 

               12    the sense that certain cells in the grid provide more 

               13    information than other cells, that's true.

               14      Q   What would be an example of that?

               15      A   Well, I mean, obviously cells that have no one 

               16    admitted would provide no information about admission rates, 

               17    in comparison of admission rates.  Cells that have everyone 

               18    admitted provide no comparative information. 

               19            And that's what we're talking about here, because 

               20    we're trying to compare the admissions of minority students 

               21    to majority students.  So the different cell grids in fact 

               22    do provide different amounts of information. 

               23      Q   Okay.  And as I understand it, Dr. Raudenbush has 

               24    suggested that you did not consider certain cells in the 

               25    data.













                                                                           26

                1      A   Well, in the calculation, every cell entered the 

                2    calculation and the computer made the judgment of how much 

                3    information would be -- you know, how much information was 

                4    there.  There are some cells that the computer found that 

                5    there was no comparative information and other cells where 

                6    it found comparative information and used all the cells that 

                7    had comparative information in deriving the summary relative 

                8    odds ratios that we talked about. 

                9      Q   What would be the kinds of cells that would provide no 

               10    comparative information, what categories would those fall 

               11    into, into terms of what you saw?

               12      A   Well, cells in a grid that would have no one admitted, 

               13    okay, there is no comparative information, everyone 

               14    admitted.  And there are very few cells like that, but there 

               15    are a few, okay?  Cells, if there are no people in the 

               16    cells, there is no comparative information. 

               17            And in fact, the one additional category is if 

               18    everyone in a cell was a member of one of the ethnic groups, 

               19    just one, so if everyone in the cell, for instance, if 

               20    everyone in the cell were caucasian and there were no 

               21    minority students in that cell, or no member of any other 

               22    ethnic group, then that wouldn't provide any comparative 

               23    information, because everyone would be the same.

               24      Q   What would be an example of a cell that provided some, 

               25    but not very much information?













                                                                           27

                1      A   Oh, there are cells, for instance, a cell where 

                2    virtually everyone is admitted, but not everyone, then that 

                3    cell would provide -- may provide comparative information, 

                4    but the amount of information in how much it contributes to 

                5    the estimation of the overall relative odds would be small. 

                6      Q   Have you prepared some charts to illustrate what cells 

                7    provided comparative information in your analysis?

                8      A   What I have done is for each of the years, and this is 

                9    also in the book, for each of the years what I have done 

               10    is -- and we have the first one for 1995.  What I have done 

               11    for each of the years is looked at the original grid, this 

               12    is for all applicants, and I have highlighted, I have 

               13    highlighted in yellow the cells that provide comparative 

               14    information. 

               15            So all the cells that provide comparative 

               16    information are highlighted in yellow and the cells that 

               17    are not, the blank cells, except for the permanent cells, 

               18    the blank cells in the balance of the table for which there 

               19    is no comparative information, that is, in the sense that 

               20    the computer would check and say, well, there isn't anything 

               21    I can add based on these cells, those are left blank. 

               22      Q   Would there be a way of including the cells that have 

               23    no applicants, first of all?

               24      A   Cells that have no applicants? 

               25      Q   Yes.













                                                                           28

                1      A   Whatsoever? 

                2      Q   I'm sorry, that have no -- for across racial lines 

                3    there are no admits, or let's take, for example, no 

                4    admissions.

                5      A   Well, there -- if there is no admits, then there is no 

                6    comparative information, so they -- the computer makes a 

                7    judgment that there is no comparative information there and 

                8    so it attributes -- it doesn't actually contribute to the 

                9    estimation.

               10      Q   Did Dr. Raudenbush in his analysis use those cells in 

               11    some fashion, cells in which there are applicants, but no 

               12    admissions from any racial group?

               13      A   Oh, I believe that in some of his models he used those 

               14    cells, yes.

               15      Q   And does that have any effect, as far as you're 

               16    concerned, on the validity of the results?

               17      A   Well, with respect to providing comparative 

               18    information you would have to have a model that says how 

               19    they enter, and so based on how his model works, that model, 

               20    whether that model is true or not depends on how that 

               21    information would enter.  I'll just say it that way, 

               22    that's true. 

               23      Q   Would it provide a more accurate her less accurate 

               24    picture of the -- as far as you're concerned -- the extent 

               25    to which race is taken into account, like including these 













                                                                           29

                1    cells in which there are no admissions from any racial 

                2    group, or would there be a distortion there or what 

                3    would be --

                4      A   Well, I actually don't know what the effect is, I 

                5    mean, as far as that goes.  With respect to the statistical 

                6    principle of looking at cells with comparative information, 

                7    they don't provide comparative information, so that's what 

                8    I know. 

                9      Q   And so you have got in front of you what we have up 

               10    here, 1995?

               11            THE COURT:  They don't provide any comparative 

               12    information, in your opinion.  If you included them, would 

               13    there be a downside to including them, even though they have 

               14    no information or is there just no reason for it or --

               15            THE WITNESS:  Well, I mean, what you have to do 

               16    is you have to model the whole grid, okay, and that to me, 

               17    that's a hard process, okay.  I looked at it and took the 

               18    comparative information and compared cell by cell.  To me 

               19    it's harder to model the whole grid.  It's just a more 

               20    difficult problem and your results would depend upon how 

               21    you did that modeling.

               22            THE COURT:  So there would be another level of 

               23    discretion, because that new level of discretion is now an 

               24    extended modeling of the whole thing?

               25            THE WITNESS:  That's the way I looked at it. 













                                                                           30

                1            THE COURT:  I mean, is that pretty much -- I 

                2    remember you talked about the less that you have to do in 

                3    terms of discretion, the better the results sometimes are.

                4            THE WITNESS:  That's right.

                5            THE COURT:  That's what you told us.

                6            THE WITNESS:  Right.  The kind of modeling would be, 

                7    there is some kind of -- you know, I'll try to be as clear 

                8    as I can.  You basically have a surface that you're modeling 

                9    here.  You're trying to model a response surface over this 

               10    whole grid and you have to make assumptions about how to do 

               11    that, and what I did is, I didn't do that, and then what 

               12    you -- I have to use two hands, sorry.

               13            THE COURT:  That's okay.

               14            THE WITNESS:  You model, say, the majority students 

               15    one way and the minority students in another and sort of the 

               16    difference here becomes the odds ratio, right?  So depending 

               17    on how you do that modeling, depending on how you do that 

               18    modeling, you could get different answers.

               19            THE COURT:  And the more modeling you do, the more 

               20    assumptions you make?

               21            THE WITNESS:  Yeah, well, sure, yeah. 

               22            THE COURT:  Your position is that you did -- you 

               23    tried to do as little modeling and as little assumptions as 

               24    you can to actually get the figures?

               25            THE WITNESS:  Right.  And exactly in this way, what 













                                                                           31

                1    I did is I said, let's not try to model the whole surface, 

                2    let's just look at it one point at a time, and look at the 

                3    difference one point at a time.  And that's basically what 

                4    I did, was look at the difference one point at a time. 

                5            THE COURT:  Creating a situation where you have to 

                6    make fewer assumptions?

                7            THE WITNESS:  I think there are fewer assumptions 

                8    in that, surely there are fewer assumptions in that, yes. 

                9    BY MR. KOLBO:

               10      Q   And you have done this for each one of the years in 

               11    question?

               12      A   That's right.

               13      Q   Can we just take a look at 1996?

               14      A   I think so. 

               15      Q   Same pattern?

               16      A   Oh, same pattern.  The cells that were no admitted 

               17    were the predominant cells that were left out and they are 

               18    the ones that have very low test scores and very low GPA's 

               19    and those students just, you know, they didn't admit them.  

               20    So that's true universally.  There are a few other cells 

               21    that don't provide very good information for the other 

               22    reasons I said, but predominantly, they are the lower grade 

               23    point averages and the lower test scores. 

               24      Q   And 1997, can we see that same pattern here?

               25      A   Same pattern. 













                                                                           32

                1            THE COURT:  And '98, perhaps --

                2            THE WITNESS:  Same pattern. 

                3    BY MR. KOLBO:

                4      Q   And then '99.  I wanted to ask you about a cell or a 

                5    couple of cells for 1999.  I don't think these are -- these 

                6    kinds of cells show up on the earlier versions, but there is 

                7    a cell, for example, under grade point 3.0 to 3.24 and 170 

                8    and above in which there are nine applicants and three 

                9    admissions; correct?

               10      A   That's correct.  That's the cell over on the -- let me 

               11    see, it's the cell right over here in this corner, 170 and 

               12    above, and this nine and three here that's not shaded.

               13      Q   And it's not shaded, meaning that it didn't provide 

               14    comparative information?

               15      A   That's right.

               16      Q   And why in that case was there no comparative 

               17    information?

               18      A   Well, I don't recall exactly the group, but all nine 

               19    of those applicants were from one ethnic group, so they were 

               20    from one ethnic group.

               21      Q   That shows no comparative information across racial 

               22    lines?

               23      A   That's right. 

               24      Q   Did you -- there has been some testimony, I think, 

               25    from Dr. Raudenbush about the number of cells or percentage 













                                                                           33

                1    of cells or so forth that were used in your analysis or that 

                2    were -- that, as you have testified, provide comparative 

                3    information.  Can you -- do you have some idea in terms 

                4    of the number of applicants that contributed comparative 

                5    information to your analysis across these different years?

                6      A   Yes, I did calculate the percentage of applicants that 

                7    are in the shaded areas and I don't remember exactly from 

                8    each year, but it's between 84 and 88 percent across the 

                9    six years.

               10      Q   That all provided comparative information?

               11      A   That's right. 

               12      Q   Dr. Larntz, then if I can ask you, do you recall 

               13    that in reading Dr. Raudenbush's testimony that he had a 

               14    criticism with respect to your reporting of uniform odds for 

               15    composite odds ratio assumptions?

               16      A   Yes.

               17      Q   Do you understand what his criticism is in that 

               18    regard?

               19      A   Well, I understand the technical, statistical aspect 

               20    of the criticism, sure. 

               21      Q   Do you agree or disagree with it?

               22      A   I disagree on its importance, and I am not sure if 

               23    that assumption is technically satisfied or not, but in 

               24    fact, the importance of the assumption is that my composite 

               25    odds ratios, if in fact that assumption is not perfectly 













                                                                           34

                1    satisfied, and no assumptions are ever perfectly satisfied,  

                2    if that assumption is not perfectly satisfied and there are 

                3    some cells that have higher odds ratios than others, then 

                4    the number I gave you would be a composite that would be 

                5    lower than they would be for the ones that are high and 

                6    a little bit higher than the ones that are lower. 

                7      Q   Do you have an opinion as to whether Dr. Raudenbush's 

                8    criticism -- does it change any of your opinions with 

                9    respect to the extent to which you believe race is 

               10    considered in the admissions process as reflected by 

               11    your analysis?

               12      A   No, it doesn't change my opinion with respect to 

               13    that at all, no. 

               14      Q   Can you explain why not?

               15      A   Well, I mean, well, first of all, I think the odds 

               16    ratios we see are a direct reflection of the cell.  We can 

               17    compare the grid cells and see high odds ratios in the grid 

               18    cells and the summary numbers that I provided, I think, are 

               19    a reflection of those, of those values.

               20      Q   Do you recall Dr. Raudenbush testifying that there are 

               21    a lot of large odds ratios in the middle ranges of the 

               22    grids?

               23      A   Oh, I believe that he said that there are very high -- 

               24    or there are high odds ratios in the middle, yes. 

               25      Q   And do you agree or disagree with that?













                                                                           35

                1      A   Yes, if there weren't higher odds ratios in the middle 

                2    we wouldn't have composite odds ratios.  If there weren't 

                3    high odds ratios someplace, and they're mostly in the middle 

                4    where there is a difference in admission rates, then we 

                5    wouldn't -- the composite odds ratios wouldn't be as large 

                6    as they were.

                7      Q   Do you understand Dr. Raudenbush's testimony to be 

                8    that the odds ratios are smaller at the upper end of the 

                9    grid?

               10      A   I think I -- I think the implication of what he said 

               11    was they were smaller in the upper end, that's right.

               12      Q   Do you agree or disagree with that?

               13      A   Well, I think in the upper end it's very hard to tell, 

               14    because there is really -- when almost everyone is admitted, 

               15    there is -- you can estimate odds ratios, but there is -- 

               16    the amount of comparative information up there is relatively 

               17    so small, so they don't contribute a great deal to the 

               18    composite odds ratio, because if almost everyone is admitted 

               19    the comparative information there isn't great, so I think 

               20    it's very hard to determine the relative odds up in the 

               21    corners unless you create some kind of model.

               22      Q   Where does most of the comparative information come 

               23    from him?

               24      A   Well, most of the comparative information is down in 

               25    this area here where there are clear differences and where 













                                                                           36

                1    there is some discretion being made with respect to the 

                2    admissions process where not everyone is admitted.

                3      Q   The middle of the, primarily, shaded area?

                4      A   Well, actually, it's the lower part of the shaded 

                5    area, if you want to call it, the middle of the grid. 

                6      Q   And then do you recall reading a criticism of 

                7    Dr. Raudenbush with respect to what he termed, I think, 

                8    the stability of the estimates over the years?

                9      A   Yes, I do remember reading that. 

               10      Q   And do you have an opinion as to whether you disagree 

               11    or agree with his criticisms there?

               12      A   Well, I certainly think that they are relatively 

               13    stable over the years and I think that we have to -- I think 

               14    we have to do -- probably do a little bit of work, a little 

               15    bit of statistical work in the courtroom, to show that.

               16      Q   So you disagree with Dr. Raudenbush's conclusions?

               17      A   I do disagree that there is a -- that there is any 

               18    kind of major problem with stability over the years, yes, 

               19    I disagree completely.

               20      Q   And could you explain the bases, and using the board 

               21    if the Court will permit?

               22            THE COURT:  Sure.

               23      A   Well, a great deal was made of a comparison -- a great 

               24    deal was made of a comparison between African American 

               25    relative odds in 1997 and African American relative odds in 













                                                                           37

                1    the year 2000, and I think that a great deal was made of 

                2    that comparison, and I think we need to talk about African 

                3    American relative odds.  I have to say, if you select two 

                4    years out then you might get a different comparison, so I 

                5    want to look at all of them across all six years, okay, and 

                6    so I want -- can I go to the board?

                7      Q   Sure.  Have you prepared some notes?

                8      A   I have a little note that summarizes things that I had 

                9    from before.

               10            THE COURT:  Can I make a suggestion?

               11            THE WITNESS:  Yes, sure.

               12            THE COURT:  I didn't know where you were, I thought 

               13    you were sitting. 

               14            If we put the board over here just for purposes 

               15    of this, then everybody can still have a seat and sit and 

               16    see it.

               17            MR. KOLBO:  In fact, I think we're done with the 

               18    projector. 

               19            MS. MASSIE:  Thanks, Judge. 

               20            (Discussion off the record at 9:15 a.m.)

               21            THE WITNESS:  What I want to do is, I want to look 

               22    at all the years, so 1995, 1996, 1997, 1998, 1999 and 2000.  

               23    And I want to talk about relative odds and I want to talk 

               24    about comparing relative odds, and I said I have to -- I 

               25    have to do a little bit of statistics and a little bit of 













                                                                           38

                1    math here, so that's just because it's been raised and I  

                2    want to make sure that we all understand. 

                3            So the relative odds, and I'll just call it the 

                4    estimated relative odds that we calculated, the estimated 

                5    relative odds from the report for 1995 was 257.93.  That's 

                6    1995.  This is, we're looking at the relative odds for 

                7    preference for African Americans, and that's always to a 

                8    baseline of caucasian. 

                9            For 1996, it was 313.59.  For 1997 it was 53.49.  

               10    And for 1998 it was 132.16.  For 1999, it was 206.45.  And 

               11    for 19 -- whatever it is -- 2000, it was 443.26.

               12            So what was talked about, what was talked about was 

               13    the comparison of this value, the 53, to the 443.  Now, I 

               14    presume, I presume those were chosen because, well, if you 

               15    look down the list, what's the smallest one?  It's 53.  And 

               16    what's the largest one?  It's 443.  Would there be -- would 

               17    there always be a largest and a smallest?  Well, that's 

               18    mathematics.  There will be a smallest and a largest.  And 

               19    if you're doing comparisons, well, depending, you would 

               20    typically look at the -- might look at the extreme, that's 

               21    fine, okay. 

               22            Now, I also had a number of standard deviations, a 

               23    Z score, and I need to look at that, and I'll talk about 

               24    that in a second, but I just want to record the one.  These 

               25    are straight out of the reports and we saw these before, and 













                                                                           39

                1    the standard deviation, and I'll need these, so 14.40, 

                2    13.18, 13.96, 13.46, 12.64, and 12.53 -- or 51, excuse me, 

                3    51.  So this is how this is reported.  These were reported 

                4    in the first report that I did, these first four, and these 

                5    were in two supplemental reports.  And these are the 

                6    standard deviations which measure the level of statistical 

                7    significance of how far these are away from one, okay.  So 

                8    this is all summary information. 

                9            Now, how do we actually do the calculations?  Where 

               10    do they come from?  They come from logistic regression.  If 

               11    you recall, that's the technique we used.  And logistic 

               12    regression works in terms, like every regression, works 

               13    in terms of regression coefficients. 

               14            And what are the regression coefficients that are 

               15    behind these numbers, what are the regression coefficients?  

               16    Well, in fact, these are not the regression coefficients 

               17    themselves, there is -- in the logistic regression there are 

               18    coefficients that we can use to calculate these.  In fact, 

               19    the coefficients, the coefficients themselves turn out to 

               20    be, to be careful, it's the natural logarithm of these 

               21    values, the natural logarithm, not the log to the base ten, 

               22    but the natural logarithm.  On your calculators, that's the 

               23    LN function, right?

               24            So in fact, the regression coefficients, the 

               25    coefficients, the coefficients themselves, the coefficients 













                                                                           40

                1    themselves are what you use for doing all the inferences.  

                2    And so what I'm going to do is write down what the 

                3    coefficients are, and that's what you use for comparison, 

                4    are the coefficients, because that's the basic underlying 

                5    calculation mechanism, are these coefficients. 

                6            And so the coefficients are, and I'll put them in 

                7    order and say them, the coefficients are, and I'm going 

                8    to round them to two places, the coefficients are -- for 

                9    corresponding to 57.93, the natural logarithm is 5.55.  For 

               10    313.59, the natural logarithm is 5.75.  For 53.49, the  

               11    natural logarithm is 3.98.  And for 132.16, the natural 

               12    logarithm is 4.88.  And for 206.45 the natural logarithm 

               13    is 5.33.  And for 443.26, the natural logarithm is 6.09. 

               14            So these are the actual coefficients in the computer 

               15    output that you would find in the logistic regression 

               16    computer output. 

               17            Now, a relative odds of one means no preference.  If 

               18    you take the logarithm of one, you get zero, that's just the 

               19    way it works, and so these need to be compared to zero.  And 

               20    in fact, the way these standard deviations are calculated 

               21    is they take the coefficient, this is out of this, and 

               22    divide it by something called the standard error of the 

               23    coefficient, and you get the number of standard deviations. 

               24            Now, I think it's informative to plot these values, 

               25    because this is the scale for comparison, the comparisons in 













                                                                           41

                1    the regression coefficients, so I need to plot these values, 

                2    and I'll do the best I can, okay.  Zero is here, and then we 

                3    have got one, two, three, four, five, six, and you can see 

                4    if I did a reasonable job of making those equally spaced.  I 

                5    tried, okay. 

                6            And then what I would do is plot values, plot the 

                7    values here, so I better give myself a code, one, two, 

                8    three, four, five.  So 5.55 is here.  And 5.75 is here.  

                9    And 3.98 is here.  And 4.88 is here.  And 5.33 is here.  

               10    And 6.09 is here, okay. 

               11            So this, these are the six years.  This is '97 and 

               12    this is 2000, these are the extremes, but this is where the 

               13    coefficients fall in terms of the regression coefficients 

               14    and this is the scale for comparison. 

               15            Now, statistically what you're doing is comparing 

               16    each of these values to zero.  You're comparing each of 

               17    these to zero, because that's in the regression coefficient 

               18    scale and clearly these are clustered relatively far away 

               19    from zero. 

               20            In fact, in fact, the standard deviation tells us 

               21    that for -- well, this standard deviation number tells us 

               22    how many standard deviations we are away from zero and so, 

               23    for instance, the year 2000 one is 12.5 standards deviations 

               24    away relatively.  Each one of these has a standard error 

               25    comparative measurement attached to it, and so we're fairly 













                                                                           42

                1    always far away.  So when I say that these results are 

                2    statistically relatively stable, I'm making the statement 

                3    of how they are in the regression coefficient scale.  So 

                4    that's how to illustrate and say that the variation from 

                5    year to year is within reasonable statistical standards. 

                6            Now, there are a couple of more things we could do 

                7    with this, and I'm not sure how far we should go, but one 

                8    more thing we could do is we could, for instance, provide 

                9    confidence limits for these relative odds if we wanted to.  

               10    I was asked about, could you provide confidence limits, and 

               11    I think I was criticized for not providing confidence 

               12    limits, I'm not quite sure.  It's not hard to do. 

               13            So I could provide confidence limits, and if I do 

               14    one of them, if I do one of them and write down the results 

               15    of the -- for the others, we can see how that goes and I'm 

               16    going to give -- so what I need to do to provide confidence 

               17    limits for the relative odds is I need to determine the 

               18    standard error of the coefficient, because the way I would 

               19    provide confidence intervals is, I have to provide a 

               20    confidence interval for the coefficient and then I have to 

               21    retranslate it into relative odds. 

               22            Remember, the coefficient is the logarithm, so 

               23    what I have to do is provide confidence intervals for the 

               24    coefficient and then retranslate it, okay. 

               25            So to get standard errors, I actually -- the 













                                                                           43

                1    standard deviation is the coefficient divided by the 

                2    standard error.  It turns out if we take the coefficient 

                3    and divide it by the standard deviation, we have to get the 

                4    standard error.  So the way the standard can be calculated 

                5    is we will take this coefficient value and divide by the 

                6    standard deviation, so 5.55 divided by 14.40, and that will 

                7    actually -- this is, we're doing this backwards in some 

                8    sense, because this is actually in the computer output, but 

                9    just to show where it comes from, this is the standard error 

               10    of the coefficient, 0.39.  That's this value divided by that 

               11    (indicating).  And we can do the same for all of these.  So 

               12    we get 0.44 for 1996, 0.29 for 1997, 0.36 for 1998, 

               13    0.42 for 1999, and 0.49 for the year 2000. 

               14            And from this, from those standard errors, we 

               15    can calculate confidence intervals.  The usual way of 

               16    calculating confidence intervals, I'm going to do it 

               17    approximately, because it won't make any difference, is to 

               18    get 95 percent confidence bounds, we take the confidence 

               19    coefficient, the regression coefficient, and take a plus or 

               20    minus two standard errors and that gives us 95 percent 

               21    confidence amounts. 

               22            So I could do that for this, and so, for instance, 

               23    in 95 percent confidence, 95 percent confidence interval, 

               24    then, for the regression coefficient, take 5.55 and subtract 

               25    two times this, and the lower bound, then, is 4.77 and the 













                                                                           44

                1    upper bound is 6.33.  So that's a confidence interval for 

                2    the true value of the coefficient. 

                3            And I can do that for each of these, and I'm not 

                4    going to write them all down right now unless you would like 

                5    me to, but what I can do now is that I can translate these 

                6    into confidence intervals for the relative odds.  And 

                7    what I do is I use the, let me see, inverse logarithm, 

                8    exponentiation, so I undo, to get into terms of relative 

                9    odds, and in terms of relative odds, the confidence interval 

               10    runs from 118, that's the lower bound, to 561. 

               11            I think I had indicated earlier that these numbers, 

               12    I don't believe these numbers exactly, and maybe, you know, 

               13    in some sense I should never put two decimal points down on 

               14    something I don't believe too accurately, but we can see 

               15    that this is a confidence interval for the relative odds.  

               16    These are all high numbers.  You know, I think they are all 

               17    high values, but these are confidence intervals for the 

               18    relative odds. 

               19            So if I might, I think I'll just -- could I write 

               20    down -- I'll write down the confidence interval for relative 

               21    odds for each of these, without going through all the other 

               22    calculations. 

               23            So the confidence interval for 1996 then becomes 

               24    130 to 757.  Notice they are wide, and they are actually, 

               25    because of the way it works, they have to be wider on the 













                                                                           45

                1    high end, because the relative odds, as they go up, there 

                2    isn't that much -- as much difference as they go higher and 

                3    higher. 

                4            For the 53.49, lower bound is 30, again, and the 

                5    upper bound is 96, so there is a spread, but these lower 

                6    bounds are all what I consider big relative odds.

                7            THE COURT:  Even 30?

                8            THE WITNESS:  Oh, sure.  Oh, sure.  Ten is big, 

                9    okay.  I think I said that before.

               10            THE COURT:  You did.

               11            THE WITNESS:  Okay. 

               12            And 64 to 270, 89 to 478, and the last one is 

               13    166 to 1,176, okay. 

               14            So the lower bounds are all, you know, in what I 

               15    consider large relative odds.  The upper bounds, of course, 

               16    are -- well, you know, they just become harder to estimate 

               17    out at higher relative odds. 

               18            So they are all -- so this gives you an idea of some 

               19    variation.  So in my estimation, these are all indicating 

               20    the same thing, that in fact, there is a substantial, a very 

               21    large allowance for African American applicants for each of 

               22    the years, and they are consistent. 

               23            They are consistent, not technically statistically 

               24    consistent, but substantively consistent, but substantively 

               25    consistent from year to year.  There may be a technical 













                                                                           46

                1    difference between them. 

                2            So that's something I wanted to make sure we 

                3    demonstrate, the stability in the appropriate scale, which 

                4    is the regression coefficient scale, and the corresponding 

                5    confidence intervals that we could generate for relative 

                6    odds.

                7      Q   So in short, in a short sentence here, what you have 

                8    just explained is the basis for your opinion that you 

                9    disagree with Dr. Raudenbush's conclusion that the relative 

               10    odds ratios are unstable across years?

               11      A   Well, that's part of it, yes.  That's certainly the 

               12    basis.  This is my thinking of how I would look at this 

               13    and certainly I believe they are certainly substantively 

               14    stable, if not technically statistically stable across 

               15    years.

               16      Q   Now, I think Dr. Raudenbush criticized you for not 

               17    reporting confidence intervals as you have just illustrated 

               18    here for these years for African Americans.  Could 

               19    Dr. Raudenbush have calculated confidence intervals for your 

               20    relative odds based on the data that he had available to 

               21    him?

               22      A   Oh, sure.  This is not -- this is straightforward 

               23    calculations and the computer output was all provided.  

               24    Everything was there to do this, yes. 

               25      Q   Now, you --













                                                                           47

                1      A   But you can do it from the reports, actually, as we 

                2    just did from that information.

                3      Q   And you have reported that all of these, as far as 

                4    you're concerned for these years for African Americans, all 

                5    of these show very large preferences?

                6      A   Oh, sure, yes. 

                7      Q   Are you able to tell whether that's true or not for 

                8    the other races that you did odds ratios analysis on for all 

                9    these years?

               10      A   Well, if you computed confidence intervals for 

               11    relative odds, they would all be, you know, relatively -- or 

               12    distributed around the estimated values, but they would all 

               13    show large preferences, yes. 

               14      Q   You know, Dr. Raudenbush testified, I believe, that he 

               15    believed that the standard deviation -- I probably won't say 

               16    this correctly so you will have to correct my question, 

               17    perhaps, and then answer it.  I believe he testified that 

               18    there were 11 standard deviations in different separated 

               19    odds ratios between 1997 and 2000.  Did you understand that 

               20    he testified along those lines?

               21      A   Yes, I remember being asked that in cross and I read 

               22    his testimony to that effect that the difference was about 

               23    11, I think he said, almost 11 standard deviations.

               24      Q   Do you disagree with that opinion?

               25      A   Oh, yes.  That's wrong.  Excuse me. 













                                                                           48

                1      Q   Do you have any understanding based on what you have 

                2    seen from Dr. Raudenbush's testimony and the data that you 

                3    have as to how he could have come to that conclusion?

                4      A   Well, if I might, can I do the calculation for the 

                5    Court, do the calculation in the regression coefficient in 

                6    the appropriate scale and then show you what the difference 

                7    is?  And then I obviously don't know exactly how he did 

                8    the calculations, but I have an idea of how he did the 

                9    calculations, okay? 

               10            THE COURT:  Certainly.  Why don't we -- just for the 

               11    record, why don't we just put some identification on that.

               12            MR. KOLBO:  I was going to ask if we could mark it, 

               13    Your Honor, and offer it, as well.

               14            THE COURT:  Why don't you at least mark it and then 

               15    we can talk about offering it.

               16            MR. KOLBO:  226.

               17            THE COURT:  What's the next number?

               18            MR. KOLBO:  Do you want to write 226?

               19            THE COURT:  Ex. 226, just so we can talk about it, 

               20    then you can move it later.  Just so we have something for 

               21    the record that we know where it is, okay. 

               22            THE WITNESS:  I need to do the comparison.  I have 

               23    to do the -- compare standard errors. 

               24            MR. DELERY:  We have another easel with another pen.

               25            THE WITNESS:  That's okay, let me record them, then 













                                                                           49

                1    we will do it. 

                2            1997, the coefficient was what, 3.98, and the 

                3    standard error was .29.  That's okay.  We're fine.  And it 

                4    was 6.09, is that right, and the standard error was 0.4, 

                5    okay.  That's all we need. 

                6            THE COURT:  And then if you'd just put on the 

                7    right-hand bottom corner again, 227, Ex. 227, and the record 

                8    will reflect that he is now working on 227, proposed.  Okay.

                9            THE WITNESS:  Well, from these values we can see how 

               10    different they are.  And I am going to bring this back just 

               11    to show you, then I'll move it back over. 

               12            You can see this value here is what, 12 standard 

               13    deviations from zero, right, 12 standard deviations from 

               14    zero, and this one, this one here is what, 14 standards 

               15    deviations from zero, and what Dr. Raudenbush has testified 

               16    to is that if we compare these two, we get something close 

               17    to 11. 

               18            Well, I mean, statistically, and I think I hope 

               19    I reacted appropriately when someone asked me, would it 

               20    surprise you that the difference between these two is 11, 

               21    given this one all the way down here is twelve and this one 

               22    all the way down here is 14, would it surprise you that 

               23    this difference is 11, and the answer is, it would totally 

               24    surprise me, and the reason is that we're carrying this to a 

               25    fixed value of zero, and these are compared to each other, 













                                                                           50

                1    and each of them has a standard error attached to it, so it 

                2    doesn't -- it's not reasonable that this difference should 

                3    be 11. 

                4            So I went back and did the calculation.  And I'm 

                5    going to show you how to do the calculation now and show 

                6    you what the number is, okay.  What I need is I'm going to 

                7    compare these two coefficients, so I'm going to compare 

                8    6.09, the difference between 6.09 and 3.98.  That's what I 

                9    need to compare. 

               10            In order to compare this difference, I have to get 

               11    what's called the standard error for the difference, and 

               12    this is something that we teach in our first course in 

               13    statistics.  And if we have got two standard errors and we 

               14    combine them to the standard error for the difference, 

               15    assuming they are computed from different data sets -- which 

               16    they are, I didn't put anything together, '97 was done 

               17    completely separate from 2000 -- so the standard error of 

               18    the difference, actually the way we do it in statistics, we 

               19    always have to do things in the variance scale, so we have 

               20    to square these things.  So we put them together, 0.29, we 

               21    square it, and 0.49, we square it, and then to get the 

               22    standard error we have to go back and we have to take the 

               23    square root of that.  So that's the math.  We square these 

               24    two numbers, add them up, and take the difference. 

               25            Now, I should have a calculator. 













                                                                           51

                1            MR. DELERY:  It's .31.

                2            THE WITNESS:  You got .31?  Let's see. 

                3            THE COURT:  He did it in his head, see.

                4            THE WITNESS:  But he is not testifying. 

                5            THE COURT:  That's okay.  For your profession, the 

                6    calculator is the most important tool.  For lawyers, it's 

                7    their business card.

                8            THE WITNESS:  Okay.  Let's just make sure I do it 

                9    right.  So I have to make sure I do it right, and the value 

               10    I get, this one is .49, it can't be any smaller than that, 

               11    it's got to be bigger than that, bigger than the total, each 

               12    one separately, and it turns out to be 0.57, 0.57, okay. 

               13            And so we divide this by 0.57.  That's the standard 

               14    error of the difference.  And this tells us how many 

               15    standard deviations these two numbers are apart, and that 

               16    number turns out to be 3.7, 3.7. 

               17            Now, that's in the range of big.  Two or three is 

               18    big.  This is a big number, but it's not 11.  Am I concerned 

               19    that this number is this big?  Well, in fact, I think there 

               20    probably are some year to year differences, and I think I 

               21    testified to that before.  There probably are.  We don't 

               22    expect these coefficients to be the same year to year.  

               23    There is variation.  There might be differences in the way 

               24    things are done. 

               25            Is this a really large number?  In the context of 













                                                                           52

                1    looking, what, at the most extreme case, right?  1997 versus 

                2    2000, those are the most extreme cases.  Is this a large 

                3    number?  The answer is, it's not large when you consider 

                4    that it's the most extreme and the fact that we don't expect 

                5    it to be exactly the same year to year.  So this is a number 

                6    that I think is consistent with the kind of variation we 

                7    saw on the previous plot, that these are not 11 apart or 

                8    almost 11.

                9            THE COURT:  And 11 would be a large number, you 

               10    would agree with that?

               11            THE WITNESS:  I think I agreed in my cross 

               12    examination that I thought 11 was -- I was surprised.  

               13    I couldn't believe it was 11, okay, but I didn't dare do the 

               14    calculations right there on the spot.  So 3.7, that's given 

               15    where we are, that's the value.  Well, it is the value, so 

               16    it's reflected in the plot. 

               17      Q   Dr. Larntz, do you have any -- based on what you 

               18    understand from the data, is there any way you could 

               19    understand how someone could conclude that the standard 

               20    deviation was 11?

               21      A   Well, I don't know exactly what Dr. Raudenbush did, 

               22    but if, if you didn't go into the regression coefficient 

               23    scale, if you tried to work in the relative odds scale, if 

               24    you didn't go to the basic logistic regression coefficient 

               25    scale and tried to do these directly and used this standard 













                                                                           53

                1    deviation, but didn't take this, that we had to work in 

                2    coefficient scale, if you did the math, the same math that 

                3    we did over here, but you just took these numbers and 

                4    assumed that you could take the standard error of this one 

                5    by dividing by that, if you did that, if you did that, 

                6    which is --

                7            THE COURT:  That's not an acceptable statistical 

                8    procedure?

                9            THE WITNESS:  Well, it's not right.  It's not right.  

               10    It's not right, because these have more variations.  We saw 

               11    that from the confidences.  These have more variations than 

               12    that.  I mean, the standard deviation associated with this 

               13    isn't about ten, it's much more variation than that, or 11 

               14    or 15 or whatever. 

               15            So, but if you did that, if you did the math that 

               16    way, and did the same, to my understanding, did the same 

               17    thing, you would get 10.94 if you did it that way.  So I 

               18    don't know what was done, but I know if you did that, you 

               19    would get 10.94.

               20            THE COURT:  And you know if that was the way it was 

               21    done, it's not done directly, in your opinion?

               22            THE WITNESS:  Oh, absolutely, that's right.

               23    BY MR. KOLBO:

               24      Q   Is that something statisticians could reasonably 

               25    disagree with, whether it's appropriate?













                                                                           54

                1      A   There is no disagreement about that at all.  I mean, 

                2    the logistic regression coefficient scale is the scale for 

                3    comparison, not the -- and the relative odds are derived 

                4    from those directly for purposes of understanding the model. 

                5      Q   I just have a few more questions, Dr. Larntz. 

                6            I think Dr. Raudenbush testified -- I understood him 

                7    to testify that your analysis really demonstrates only that 

                8    a race factor was used as a factor in the admissions 

                9    process.  It doesn't demonstrate anything about the extent 

               10    to which race was used in the admissions process.  Do you 

               11    agree or disagree with that?

               12      A   Well, I would disagree, and shortly -- can I just 

               13    briefly describe?

               14            I disagree in the sense that these are big 

               15    representative odds.  There is a tremendously large 

               16    allowance given to race, and it's hard to believe that any 

               17    other factor could explain that away, unless it were just a 

               18    surrogate for race.

               19            MR. KOLBO:  I have nothing further, Your Honor.  

               20    I would like to offer the exhibits, Your Honor.

               21            THE COURT:  Any objection? 

               22            MR. DELERY:  No objection, Your Honor. 

               23            THE COURT:  Fair enough.

               24            MR. KOLBO:  It's 225, 226 and 227.  225 is the first 

               25    handout.













                                                                           55

                1            MR. DELERY:  Oh, the charts, okay.  All right. 

                2            THE COURT:  You know, if you remind me Monday, we 

                3    may be able to see if Court Services -- actually, when we 

                4    have those and admit them, they have a Polaroid, I think 

                5    they still have it, and we can take some Polaroids of that 

                6    so that everybody will -- I don't know how else to get it to 

                7    a form so everybody will be able to have it, so if somebody 

                8    reminds me Monday, I'll try to see if they have a Polaroid 

                9    still up there and take some pictures.  If not, I'm not sure 

               10    how we will do it.

               11            MR. PURDY:  Just a suggestion, if the Court would 

               12    prefer, we're happy to have these typed up.  We would be 

               13    happy to do that and then just --

               14            THE COURT:  That's even better.  Nobody objects?  We 

               15    will keep these.  You can all sign off on them. 

               16            MR. PURDY:  We won't even take them out of the 

               17    courtroom.  We will just copy them and present them.

               18            MR. DELERY:  Or mark Dr. Larntz' notes if they are 

               19    the same thing.

               20            THE COURT:  I think we should use what he used and 

               21    preserve those for the official record and type them up and 

               22    if for some reason you can't do that, or if you can't do it, 

               23    we will take the numbers, we will get them down here to take 

               24    pictures. 

               25            In Judge Taylor's courtroom, they have the white 













                                                                           56

                1    board now that you write on and then you push a button and 

                2    the thing comes out. 

                3                CROSS EXAMINATION

                4    BY MR. DELERY:

                5      Q   Good morning, Dr. Larntz.

                6      A   Good morning.

                7      Q   Welcome back. 

                8            Like Mr. Kolbo, I think I'm going to -- certainly 

                9    hope that I stick to what you have covered here this 

               10    morning.  We're not going to go back over the ground that we 

               11    covered last month when you were here the first time, and I 

               12    think I'll start where we left off and then work back from 

               13    there. 

               14            MR. DELERY:  If I may approach, Your Honor?

               15            THE COURT:  Absolutely. 

               16    BY MR. DELERY:

               17      Q   The first two columns here in Exhibit 226 were taken 

               18    from your expert reports; is that correct?

               19      A   That's correct. 

               20      Q   The first relative odds numbers came from model one 

               21    for each year; is that right?

               22      A   Yes, I think that's right.  That's the first set of 

               23    analyses, that's true. 

               24      Q   You reported three composite odds ratios for each 

               25    year; correct?













                                                                           57

                1      A   That's true.  That's true.  I was responding to the 

                2    criticism of this particular comparison.

                3      Q   Right.  I just want to get it clear what these numbers 

                4    are.  These were the model one numbers from each year?

                5      A   Sure.

                6      Q   Okay.  And then the second column here that you have 

                7    headed SD are what your report called the standard 

                8    deviations on the same tables from model one?

                9      A   That's right.

               10      Q   And the standard deviations were reported in your 

               11    report on the log scale; correct?  I mean, these are 

               12    standard deviations in the log scale?

               13      A   They are standard deviations for the regression 

               14    coefficient, that's right.

               15      Q   And the regression coefficients are in the log scale?

               16      A   Well, the logistic, l-o-g, regression, does analysis 

               17    on the log odds, so that's correct.

               18      Q   And the odds ratios, the estimated relative odds in 

               19    the first column, are not on the log scale?

               20      A   Oh, that's true, yes. 

               21      Q   And is there a name for not on the log scale, is there 

               22    a term for that?

               23      A   You mean on just the normal scale? 

               24      Q   Is that what it's called?

               25      A   The real scale?  I mean, relative odds scale, the 













                                                                           58

                1    relative odds scale.  It's the relative odds scale. 

                2      Q   It's the normal scale; is that --

                3      A   I would call it the relative odds scale.

                4      Q   Okay.

                5      A   As opposed to the log odds scale. 

                6      Q   And -- okay.  The scales are not -- if you line them 

                7    up, they work differently; correct?

                8      A   I mean, there is a direct translation one to another, 

                9    but obviously the relative odds are it's a trans -- they are 

               10    a direct translation of each other. 

               11      Q   So just so I'm clear, the two numbers reported in your 

               12    reports for each of these model results were on different 

               13    scales?

               14      A   Well, I guess I wouldn't consider it that way.  I 

               15    would consider that, in fact, I gave the relative odds, 

               16    that's an appropriate way to summarize the value, and this 

               17    is the significance to understand the relative odds.  So 

               18    I think the standard deviations are directly related to 

               19    the significance of relative odds. 

               20      Q   The standard deviations are not the standard 

               21    deviations of the relative odds; is that right?

               22      A   Oh, no, no.  They are an indication of the statistical 

               23    significance of the relative odds. 

               24      Q   But they are actually the standard deviations for the 

               25    regression coefficient?













                                                                           59

                1      A   For the regression coefficient, that's exactly how you 

                2    have to do that, yes. 

                3      Q   Okay.  And that's the way you reported it in your 

                4    report?

                5      A   The report, I reported with those two columns, that's 

                6    exactly right. 

                7      Q   And then it was the calculations that you have done 

                8    here that led to the third column for the regression 

                9    coefficient; is that right?  I guess that's actually the 

               10    fourth column on this page.

               11      A   The numbers there, I re -- I back calculated, but they 

               12    are the numbers from the -- if you looked at the computer 

               13    output for logistic regression, that those are the numbers 

               14    that you would see in the computer output, yes. 

               15      Q   And so the relative odds is just the -- well, I'll go 

               16    the other way.  To get the regression coefficient, you just 

               17    take the log of the relative odds?

               18      A   Of course, the way you get the relative odds is you 

               19    exponentiate the regression coefficient, that's how, but the 

               20    regression coefficient is the basic number that you work 

               21    from and then you exponentiate that to get it in relative 

               22    odds.  That's a standard output in logistic regression, is 

               23    to report both of those.

               24      Q   So you can move back -- what you are saying is you can 

               25    move back and forth between the log scale and the relative 













                                                                           60

                1    odds scale?

                2      A   Well, they represent the same thing. 

                3      Q   Turning now to Exhibit 227, the standard error of 

                4    the difference here between the odds ratio -- or the 

                5    coefficient, I'm sorry -- for 1997 and 2000, you calculate 

                6    as 3.7?

                7      A   That's right.

                8      Q   That's a fair statement of what's on this page?

                9      A   I mean, someone can check the math, but --

               10      Q   Okay.  Am I right that anything over two is considered 

               11    statistically significant?

               12      A   Without a selection bias in the sense of looking at 

               13    extremes, anything over two would have a five percent 

               14    statistical significance, but we're not doing just any two 

               15    here, we're doing the most extreme two, so we have selected 

               16    the two we're looking at out of a group, and I would say 

               17    that in that case you need a value, I don't know what the 

               18    value is, but it certainly would range, when you're 

               19    selecting out of, you know, the most extreme cases, that two 

               20    doesn't go anymore.  You have got to take account of the 

               21    fact that you're selecting from the most extreme cases.  

               22    And so typically values of -- you know, you wouldn't be 

               23    surprised if you got values of three or four when they are 

               24    the most extreme. 

               25      Q   Okay.  Putting aside the most extreme context, two 













                                                                           61

                1    ordinarily would be statistically significant?

                2      A   I mean, you want me to ignore the fact that -- where 

                3    the data came from?

                4      Q   For this purpose, I'm just asking you, if --

                5      A   If I ignore where the data came from, then you have 

                6    about a five percent chance of getting a value outside the 

                7    ranges of two if the data comes from a normal distribution. 

                8      Q   So greater than two ordinarily would be considered 

                9    statistically significant?

               10      A   In the context of something that wasn't generated as a 

               11    selection --

               12      Q   All right.

               13      A   -- that would be true, in something that wasn't 

               14    generated as a selected.

               15      Q   And greater than three would ordinarily be considered 

               16    highly statistically significant, is that fair to say?

               17      A   In the same context, where you're not -- where you're 

               18    just looking straight away, not where you're looking at 

               19    extremes. 

               20      Q   Okay.  Let's go back, if we could, to Exhibit 226.  

               21    Your view is that all of the odds ratios that you have 

               22    reported here, both in the first column from your report 

               23    under the RO column, and then in the confidence interval 

               24    parentheses, are very large, is that your testimony?

               25      A   By the standard of statistical practice, they are very 













                                                                           62

                1    large, absolutely. 

                2      Q   So in the year 2000, for example, what your results 

                3    show is that the relative odds for African Americans as 

                4    opposed to whites could be anywhere from 166 to 1,176?

                5      A   The data are consistent with those values, yes, at 

                6    the 95 percent, at the 95 percent confidence level. 

                7      Q   And so we can't really be sure where in that range it 

                8    falls, but you're fairly confident that it's somewhere in 

                9    that range?

               10      A   I mean, the interpretation of a confidence interval 

               11    now, you want to do that?  Okay.

               12      Q   I mean, have I fairly --

               13      A   Those are the values that are consistent with the 

               14    data at the 95 percent confidence interval, confidence 

               15    coefficient level, that's right. 

               16      Q   Okay.  And so we can do the same thing for the other 

               17    years, 1999, it's somewhere between 89 and 478?

               18      A   Well, knowing that those statements are made with 

               19    error rates that are five percent, that's right. 

               20      Q   But the conclusion you draw is that all of these are 

               21    large, so these differences don't trouble you?

               22      A   Oh, that's right.  They are all substantively 

               23    consistent, that's what I said, and that's exactly right. 

               24      Q   And then when you plotted it here, you said that the 

               25    reason that these differences, the differences in the first 













                                                                           63

                1    odds ratios that you reported don't trouble you is because 

                2    they are all quite far away from zero?

                3      A   They are all quite far away from zero and they cluster 

                4    together.

                5      Q   So again, here zero means a relative odds of one, am I 

                6    right?

                7      A   That's right.

                8      Q   Which means that the members of both groups have an 

                9    equal likelihood of being admitted?

               10      A   That's true. 

               11      Q   So from these odds ratios you can be quite sure that 

               12    you have disproved a contention that both groups have the 

               13    same likelihood of being admitted as a percentage basis?

               14      A   You certainly can disprove that and you can disprove a 

               15    lot of other odds ratios, because the lower bounds are far 

               16    away from one, that's right. 

               17      Q   So you think that you can be confident of more than 

               18    just that the so-called null hypothesis is disproved from 

               19    these?

               20      A   Oh, certainly, certainly, certainly, and from the 

               21    size of the standard deviations, the number of standard 

               22    deviations and the corresponding confidence, yes, certainly.

               23      Q   You believe, in fact, that you have quantified, 

               24    I believe that you said, the role that race plays in 

               25    admissions based on these numbers; is that right?













                                                                           64

                1      A   Well, I am just a statistician, so I'll be careful of 

                2    what I did, okay?  What I have done is I have described what 

                3    the admissions office did, okay?  And so this quantifies the 

                4    admissions decisions, okay?  And so what I have done is 

                5    described, quantified the admissions decisions, and this is 

                6    from their data and this is what their data tells me about 

                7    that.

                8      Q   And I want to be clear about that, because we 

                9    obviously had some fairly lengthy discussions of this issue 

               10    when you were here last month. 

               11            Today, Mr. Kolbo asked you some questions about 

               12    whether anything that Dr. Raudenbush said in his testimony 

               13    changed your opinions concerning the effect that race plays 

               14    in the admissions process.  Do you remember those questions 

               15    from Mr. Kolbo?

               16      A   I'm not sure of the exact wording, but I took that to 

               17    mean if was there any change in my opinion from previously, 

               18    and I answered that there was no change in my opinion 

               19    previously.

               20      Q   Okay.  So putting aside that, now I want to ask the 

               21    follow-up question.  Do you believe that you have expressed 

               22    an opinion concerning the extent -- and I'm sorry, I guess I 

               23    may have misspoken a moment ago.  I think Mr. Kolbo used the 

               24    word extent, not effect, if I misspoke, but do you believe 

               25    that you have expressed an opinion concerning the extent to 













                                                                           65

                1    which race is taken into account in the admissions process?

                2      A   What I have done is expressed an opinion of the size 

                3    of the allowance that is shown in the data that's from the 

                4    admissions office for individuals that have the similar 

                5    credentials, the advantage that's given based on ethnic 

                6    groups in those for individuals with similar credentials, 

                7    and that's what I testified to, I hope, and that's really 

                8    what the conclusion is, is that I have quantified 

                9    statistically the size of the allowance that's given 

               10    for individuals with similar credentials. 

               11      Q   And just so we're clear, by size of the allowance, do 

               12    you mean by an admissions officer sitting down to read a 

               13    file in making the decision?

               14      A   I mean describing the admissions decisions, what show 

               15    up in their -- from their data.

               16      Q   What shows up as a result of the decisions?

               17      A   As a result of the decisions, absolutely.  It's the 

               18    results of the decision.  I don't think I have ever said 

               19    or didn't mean to say that I did anything other than to 

               20    describe.  It's their decision.  I'm describing what the 

               21    results are. 

               22      Q   Right.  But again, just so we're clear, that's 

               23    different from describing how the decisions were made; 

               24    correct?

               25      A   These are the results of the decisions.













                                                                           66

                1      Q   So is the answer to my question yes?

                2      A   Well, I don't know exactly how decisions are made.

                3      Q   Okay.  And these data don't say anything about how 

                4    decisions are made?

                5      A   They say a good deal about the results of those 

                6    discussions and that's what I would say.

                7      Q   But not how the decisions were made?

                8      A   The mechanism for making decisions, that's not 

                9    statistics.

               10      Q   The process?

               11      A   That's not statistics. 

               12      Q   I believe that you said earlier in asking -- answering 

               13    the questions for Mr. Kolbo that you're confident in the 

               14    substantive stability of your results, but that the odds 

               15    ratios were not technically statistically stable across the 

               16    years, did I get that right?

               17      A   I think that what I would say is that the substantive 

               18    results are clearly consistent, okay, clearly consistent.  

               19    There may be, and I think there probably is, I would expect 

               20    there to be some technical, in the sense of statistical, 

               21    variation from year to year.  I wouldn't expect the 

               22    variation from year to year to year, so what I was 

               23    responding to is I think that the variation from year to 

               24    year is probably not zero.  There is probably some -- in 

               25    the underlying true scale, that there probably is some year 













                                                                           67

                1    to year variation, but it's not large enough to change the 

                2    substantive conclusions, that's right. 

                3      Q   So the differences among the odds ratios across years 

                4    don't lead you to alter the basic conclusions that you have 

                5    reached, that's the bottom line of what you're saying?

                6      A   Substantively they are the same from year to year, 

                7    that's what I said. 

                8      Q   I think maybe now I would like to go, if we could, 

                9    back to the last page of the packet that you have.  It's 

               10    Exhibit 225, I believe, if you could look at that.

               11      A   I have it. 

               12      Q   The last page was the chart of the relative odds 

               13    effect on baseline probabilities.

               14      A   That's correct. 

               15      Q   Am I right to understand that this is basically a way 

               16    to translate odds to probabilities, is that what this is 

               17    doing?

               18      A   It's showing the effect of a relative odds value on 

               19    certain -- on a range.  I tried to do the whole range of 

               20    probabilities.  I think both sides offered their own 

               21    baseline probabilities.  I mean, we both did.  And so I 

               22    thought we should probably, just for clarification, give the 

               23    whole range of probabilities. 

               24      Q   Okay.  So if we look across the top, you have various 

               25    relative odds, 5, 10, 20, 50, 100, 200?













                                                                           68

                1      A   Sure. 

                2      Q   Do you see that? 

                3            If all we know is an odds ratio number like 100, 

                4    if that's all we know, we don't know anything about the 

                5    relative chances of admission of two groups, is that fair 

                6    to say?

                7      A   We don't know the probabilities, that's right. 

                8      Q   Okay, because on your chart here, an odds ratio of 

                9    100 could translate to any of the probabilities that you 

               10    have listed under that heading as compared to the baselines; 

               11    right?

               12      A   Well, it depends on the baseline, yeah, sure. 

               13      Q   But the point is that unless you know, unless you 

               14    know the underlying probabilities, you can't evaluate the 

               15    significance of an odds ratio like 100?

               16      A   Well, it would mean different things for different 

               17    baseline probabilities, that's what I'm trying to 

               18    illustrate, exactly. 

               19      Q   Now, I believe you testified when you were here before 

               20    that an odds ratio of two or three, you would consider 

               21    large; is that right?

               22      A   In my work, two or three is a big number in odds ratio 

               23    terms, yes, absolutely.  And I saw one of eight the other 

               24    day, so everyone was astonished in the room. 

               25      Q   So a select group, I guess.













                                                                           69

                1      A   Well, they were clinical medical researchers and they 

                2    were astonished that it was as big as that.  Eight was big.

                3      Q   And that's -- if you think about it in terms of a 

                4    medical study for a second, you don't have two or three here 

                5    on the last page of Exhibit 225, but you do have five.

                6      A   Oh, yeah, sure, sure. 

                7      Q   Which, if two or three is large, then five is clearly 

                8    large?

                9      A   Five is a considerable effect.

               10      Q   You have, if we look here, a baseline probabilities 

               11    of  .1 or 10 percent for a relative odds of five, the other 

               12    group's probability would be .35, .36, if you round, is that 

               13    what this table shows?

               14      A   I'm not with you.  I'm sorry. 

               15      Q   Okay.  If we look under relative odds of five, so the 

               16    first column.

               17      A   I have that.

               18      Q   Starting with the baseline probability of .1.

               19      A   Oh, .1, I'm sorry.  I misunderstood. 

               20      Q   Yes, .1 for 10 percent?

               21      A   So 10 percent, 10 percent translates into -- if the 

               22    relative odds is five to 35.7 percent, that's right. 

               23      Q   And so that's the kind of effect that you're 

               24    considering to be really large based on your experience, 

               25    for example, in medical studies?













                                                                           70

                1      A   Well, it is a large effect, yes. 

                2      Q   Okay.  And is it fair to say that it's your opinion 

                3    that in the context of this case, the differences in all of 

                4    the odds ratios that you have reported are not significant, 

                5    because they are all so far beyond this two, three, five 

                6    level that you find really large?

                7      A   I think that the odds ratios here are large.  I think 

                8    some are larger than others.  I don't say that there are no 

                9    differences between them statistically or substantively.  

               10    I think that they are larger for some ethnic groups than 

               11    others, but they are -- but for the selected minority 

               12    groups, they all looked large, yes. 

               13      Q   Is it fair to say that in order to interpret the 

               14    significance of a reported relative odds number, you need 

               15    to look at the underlying probabilities?

               16      A   Oh, absolutely.  And we did that.  We looked at the 

               17    grids and these are just -- the relative odds summaries are 

               18    just summaries of what goes on in the grids, and the grids 

               19    give us those baseline probabilities, absolutely, 

               20    absolutely.  I absolutely agree, you need to look at the 

               21    basic data in the grids, yes. 

               22      Q   Would you also say that it's important to look at 

               23    the sample size or the pool size of the groups that are 

               24    contributing to the relative odds calculation in order to 

               25    understand the significance of a reported relative odds 













                                                                           71

                1    ratio?

                2      A   That's actually taken into account in the statistical 

                3    significance calculation, so different sample sizes enter 

                4    into that.  The amount of information about a particular 

                5    ethnic group is accounted for in that, but absolutely, if 

                6    there are very small numbers, very small numbers in the 

                7    aggregate, then those would be -- well, correspondingly 

                8    the confidence bounds for those would be wider. 

                9      Q   So it's fair to say that to really interpret and 

               10    report estimated relative odds, you need to look at the 

               11    odds ratio number, the underlying probabilities and the 

               12    underlying pool sizes, is that fair to say?

               13      A   Well, I think a good bit of that information is 

               14    accounted for in the statistical significance, but that's 

               15    right, that is certainly -- you can certainly say that you 

               16    could look at those and that would be informative, yes, 

               17    absolutely. 

               18      Q   Okay.  Is it fair to say that if you didn't look at 

               19    any one of those, in your view, you would be missing an 

               20    important piece of evaluative information?

               21      A   I mean, those are things you would look at.  Whether 

               22    you needed to look at each one of them for each particular 

               23    context, it would depend on the context. 

               24      Q   Okay.  I think I understand from what you have just 

               25    said, in other words, that you might draw different 













                                                                           72

                1    conclusions about a reported relative odds number if you 

                2    were talking about three members of a group as opposed to 

                3    30 or 300, is that fair to say?

                4      A   Well, if the data came from three, I'm sure we 

                5    wouldn't have gotten any statistical significance, and so 

                6    the size of the standard deviations accounts for the sample 

                7    size to a great extent.

                8      Q   But for the same odds ratio like 100 that we were 

                9    talking about before, you would draw different conclusions 

               10    from it if it were based on three members of a group as 

               11    opposed to 30 or 300, is that fair to say?

               12      A   Well, we would surely have different measures of 

               13    statistical significance from those cases.

               14      Q   And therefore, from that, you would -- you would reach 

               15    different conclusions based on that number?

               16      A   I would reach different conclusions in the sense that 

               17    for the smaller group, the confidence intervals would be 

               18    much wider and so I would be less sure of that, yes. 

               19      Q   Okay.  If you could, actually, I would like for you to 

               20    look at one of your earlier reports.  It's Exhibit 138. 

               21            And if you could look -- do you have it now, 

               22    Dr. Larntz?

               23      A   It's the February 21 supplemental report.

               24      Q   Yes.

               25      A   Yes.













                                                                           73

                1      Q   And if you look, there is a series of 24 pages of what 

                2    we have called cell by cell odds ratio calculations there?

                3      A   Yes. 

                4      Q   Do you see that? 

                5            If you would look at page six of 24 there --

                6            MR. DELERY:  This is again Exhibit 138, Your Honor. 

                7            THE COURT:  Page 24?

                8            MR. DELERY:  The last set of the report, the back 

                9    of the report, is a series of pages, 24 pages numbered 

               10    page one of 24 and so forth, and I would like to look at 

               11    page six of 24. 

               12            THE COURT:  Okay.

               13    BY MR. DELERY.

               14      Q   And particularly the second block there of lines for 

               15    LSAT ranges from 164 to 166, I think it is.  Do you see 

               16    that?

               17      A   Yes, I see that. 

               18      Q   It's the second paragraph, so to speak, on this page. 

               19            The first cell there for 3.75 GPA and up has a 

               20    minority -- three minority applicants and three were 

               21    admitted, and 131 majority applicants and 56 admitted; is 

               22    that correct?

               23      A   That's correct. 

               24      Q   And you have calculated infinite odds ratio for that?

               25      A   The computer did the calculation, yes.













                                                                           74

                1      Q   Right.  And then for the next cell down you have again 

                2    three minority applicants, only two of whom were admitted, 

                3    and then 216 majority applicants, 73 of whom were admitted?

                4      A   Yes, I see that. 

                5      Q   And because two out of three minority students were 

                6    admitted as opposed to all three out of three, the odds 

                7    ratio goes from infinity down to 3.92; is that right?

                8      A   That's correct. 

                9      Q   And that's due to the fact that there is such a 

               10    small sample size of minority students; isn't that right?

               11      A   Yes.  If we're looking at each individual cell, and 

               12    these cell by cell comparisons, you recall, were not the 

               13    primary, now, these are supplemental analyses, and I didn't 

               14    naturally expect to see statistical significance in these, 

               15    because there would be small sample sizes, and in fact, for 

               16    each of these two, the P values are bigger than .05, and so 

               17    in and of themselves, which is -- again, they were never 

               18    meant to be stand-alone, but in and of themselves, neither 

               19    one shows statistical significance, that's right.

               20      Q   But it is fair to say that many of the cells that you 

               21    have highlighted on the charts that you showed us earlier 

               22    had very small numbers of minority applicants in them; isn't 

               23    that right?

               24      A   But the analysis doesn't do it cell by cell, it 

               25    generates the information across all the comparative cells 













                                                                           75

                1    or comparative information, so that's a very different story 

                2    than looking at an individual cell and saying there are few 

                3    numbers there.  Your composite estimate combines across all 

                4    the cells, all the cells with comparative information. 

                5            So I think we have to make sure you're talking about 

                6    the cell by cell analysis.  This was done specifically to 

                7    look and see if there was, you know, an effect of odds ratio 

                8    across these cells, and this is -- this is for these 

                9    particular cells.  They are small, and I don't disagree 

               10    with that. 

               11      Q   All right.  And I actually want to move, use this 

               12    as sort of a transition into the charts that you put up 

               13    earlier and how you calculated the composite odds ratios. 

               14            Actually, maybe we should -- if we could, can we put 

               15    one of those back up? 

               16            While we're waiting, I think I can ask you some 

               17    preliminary questions. 

               18            You highlighted the cells for whom applicants were 

               19    included in the composite odds ratio calculation; is that 

               20    right?

               21      A   What I did, yeah, is I highlighted the cells that 

               22    provided comparative information, that's true. 

               23      Q   And the comparative information that they provided was 

               24    on a cell by cell basis; right?

               25      A   The comparative information is across the cell by cell 













                                                                           76

                1    for -- it's across all the ethnic groups, that's right. 

                2      Q   Across all the ethnic groups within each individual 

                3    cell; correct?

                4      A   Well, I mean, I talked earlier about the fact that 

                5    we're looking at differences in a cell by cell fashion as 

                6    opposed to modeling it overall, yes. 

                7      Q   Right.  So you --

                8      A   So the composite -- I'm sorry, if I might -- the 

                9    composite puts together the estimates cell by cell, which 

               10    may be quite variable, and puts them into a composite that 

               11    accounts for all the information, all the comparative 

               12    information. 

               13      Q   But it uses as its basic building block, if I 

               14    understand it correctly, the cell that's defined on the 

               15    grid; correct?

               16      A   Well, the basic building block is to look at people 

               17    with similar credentials, and what we did is looked at 

               18    individuals with similar credentials, similar grade point 

               19    averages, similar LSAT as defined by the law school, and 

               20    their grid, the grid -- remember, the grid boundaries came 

               21    from the law school, so they provided these grid boundaries, 

               22    and we looked at the comparative information in looking, 

               23    combining it across these individual cells, that's right. 

               24      Q   And in fact, you created a variable for each cell that 

               25    contributed comparative information; isn't that right?













                                                                           77

                1      A   The computer actually created cells -- created one for 

                2    every cell and then evaluated whether it was comparative.  I 

                3    mean, every cell was included in the analysis and I didn't 

                4    go in and have it exclude cells, no. 

                5      Q   But I'll come back to the computer here in a minute, 

                6    but to follow on this point, the cell itself contributed a 

                7    variable in your analysis; in other words --

                8      A   What we did is we looked at each cell to see if 

                9    that -- the computer looked at each cell and the computer 

               10    determined how much it would contribute and added in the 

               11    amount of comparative information, depending on what was 

               12    in the cell, that's always true.  That's true of any 

               13    statistical analysis. 

               14      Q   Okay.  You mentioned the computer doing a lot of 

               15    things here this morning, but the computer only did what 

               16    you told it to do; isn't that right?

               17      A   I think that would be -- that would be in the ideal 

               18    world, yes. 

               19      Q   Do you have any examples of where the computer 

               20    overrode your instructions and did something on its own?

               21            THE COURT:  In this case?

               22    BY MR. DELERY:  

               23      Q   Putting aside your microwave?

               24      A   Computers are only as good as the programming that 

               25    goes into the computer, that's always true. 













                                                                           78

                1            Are there errors in the programs that I used?  I 

                2    used programs that I think are reliable.  I checked them 

                3    out.  I feel quite confident that it was doing what I wanted 

                4    it to do.  It did a lot more than I wanted it to do, because 

                5    that's what computer programs do, they provide you with -- 

                6    we used to have a term, a side inch, in the old green paper, 

                7    we used to call them how many side inches of output did you 

                8    get, you know, and how many side inches.  We don't do that 

                9    anymore, we save it all on disk, but the number of side 

               10    inches was considerable in this case. 

               11      Q   You're not trying to distance yourself, though, in 

               12    some sense, from what your computer did?

               13      A   Oh, no, not in any sense.  No, I don't mean to do 

               14    that.  If I give that impression, it wasn't -- I'm not -- I 

               15    am not, in any sense, saying that I didn't control what the 

               16    computer did.

               17      Q   You weren't helpless in the face of the computer that 

               18    was excluding this data; right?

               19      A   I enjoy it when the clerk says the computer lost your 

               20    reservation, yes, I enjoy that, in the sense that I know 

               21    it's a person that made a mistake that caused that to 

               22    happen.  I'm very, very cognizant of the fact that computers 

               23    do what people instruct them to do, yes.

               24            MR. DELERY:  Okay.  So if we could put up one of 

               25    the -- I guess the 1995 grid, which was the first page of 













                                                                           79

                1    Exhibit 225, just so we're all looking, and if you could 

                2    slide it over so it's all there. 

                3    BY MR. DELERY:

                4      Q   Just so we have a sense of what is here, I believe you 

                5    said -- let me make sure I get this right.  You highlighted 

                6    the cells that contributed comparative information; is that 

                7    right?

                8      A   That's what I attempted to do and the highlighting was 

                9    done by me. 

               10      Q   Not the computer.  The computer told you which ones it 

               11    had from --

               12      A   No, no.  I actually -- I actually went back and looked 

               13    at the cell grids and determined which ones would have 

               14    contributed, so I did it.

               15      Q   Okay.  And then I think you said that about -- across 

               16    these years -- 84 to 88 percent of the total applicants are 

               17    in the shaded cells; is that right?

               18      A   I did a calculation and I think that's right, you 

               19    know, best that I could punch my numbers in.  I actually -- 

               20    I actually counted across, and just to be clear, and totaled 

               21    the number, and I counted down and totaled the number, and 

               22    then I counted down and across and made sure that they came 

               23    out to be the same value.  So I actually -- I actually did 

               24    check to see the best I could that -- those numbers that 

               25    are not highlighted, actually, is what I counted, and then 













                                                                           80

                1    calculated the percentage of highlighted. 

                2      Q   And just so I understand that correctly, the reason 

                3    that you excluded, for example, this cell, which is at 

                4    3.5 to 3.71 -- 74, hard to tell -- and then I think that's 

                5    148 to 150, so this cell here, 35 applicants, zero in its --

                6      A   That's right.

                7      Q   The reason that that cell is not highlighted is 

                8    because, although there were members of different racial 

                9    groups, everybody was denied, and so in your definition of 

               10    comparative information, that doesn't contribute any?

               11      A   There would be no comparative information from 

               12    that cell.

               13      Q   From that cell, all right.  And that's true even 

               14    though those -- that cell reflects actual decisions by 

               15    the admissions office?

               16      A   Right.  Decisions that were the same for everyone in 

               17    that cell, that's right. 

               18      Q   And in your view, I think you said, cells can -- even 

               19    cells that you shaded contributed different amounts of 

               20    comparative information?

               21      A   I think that's -- well, that's certainly true.  I 

               22    mean, every cell contributes a different amount -- well, I 

               23    mean, I won't say every -- yeah, I think every cell probably 

               24    contributes a different amount.

               25      Q   So the way you set up your model, the closer the two 













                                                                           81

                1    groups were to being treated the same, the less information 

                2    was contributed to the composite odds ratio; is that a fair 

                3    statement?

                4      A   That's not true, no. 

                5      Q   So what do you --

                6      A   I mean, that is not necessarily true.  I mean, if in 

                7    fact they were treated the same across the cells, if the 

                8    admission rates were similar, then we would have gotten odds 

                9    ratios that would have used those, that information, and 

               10    calculated odds ratios appropriately. 

               11      Q   Well, you said earlier that for cells where members of 

               12    majority groups on the one hand and minority groups on the 

               13    other hand were not treated exactly the same, but were 

               14    treated close to the same, the cells contributed less 

               15    information?

               16      A   Well, I think I better be careful, then, and make sure 

               17    we understand.   In cases where virtually everyone is 

               18    admitted or virtually everyone is denied, particularly 

               19    ones where everyone is admitted, then that will contribute 

               20    relatively small amounts of comparative information.  We 

               21    see in the grids back before, there was not statistical 

               22    significance in some of those cells. 

               23      Q   So it's not just whether the groups are treated the 

               24    same, it's whether the relative probabilities are at one or 

               25    the other extreme; is that right?













                                                                           82

                1      A   Oh, absolutely.  Absolutely.  Absolutely.  I mean, 

                2    what we're doing is doing comparative analysis.  We're 

                3    comparing the relative probabilities.  That's what we're 

                4    doing. 

                5      Q   So where two groups are treated the same and the 

                6    probabilities are extremely high or extremely low, that 

                7    contributes little information?

                8      A   Where they are treated the same --

                9      Q   And both probabilities, the probabilities for both 

               10    groups are high or low.

               11      A   Now, I think it's true.  I mean, it's a continuum in 

               12    the sense that if everyone were admitted, then there is no 

               13    comparative information.  If virtually everyone is admitted, 

               14    amount of comparative information is small.  That's true, 

               15    okay.  I can say that, and that is what I can say. 

               16      Q   Okay.  Now, if 84 to 88 percent of the applicants are 

               17    in the shaded cells, that means somewhere, 12 to 15 percent, 

               18    16 percent of the applicants are in cells that you excluded; 

               19    correct?

               20      A   Cells that provide no comparative information, that's 

               21    true. 

               22      Q   Okay.  Do you consider 12 to 16 percent of the data 

               23    not providing comparative information to be a high 

               24    proportion?

               25      A   Oh, it's not high at all.  It's not high at all.  I 













                                                                           83

                1    mean, it's cells that, particularly when you look at the 

                2    cells that we see what kind of cells they are, there were 

                3    cells for the most part, not 100 percent, but for the most 

                4    part, they are cells where people have presented themselves 

                5    with very low credentials.  I mean, grade point averages 

                6    less than 2.5, LSATs less than 148.  I mean, those are 

                7    the -- I mean, look where the area is, yeah, here, all the 

                8    cells, they are all down in this area, right, and up in 

                9    here, and with an occasional cell here and there, just 

               10    depending, as we would expect. 

               11      Q   So 12 to 16 percent of the applicants not in cells 

               12    contributing comparative information doesn't trouble you. 

               13            What about 20 percent, would that concern you?

               14      A   It depends on where the -- it depends on where the 

               15    credentials are.  If in fact everyone moved, if in fact, 

               16    if in fact the admissions office decided we needed higher 

               17    LSATs and higher grade points and we moved it up, I mean, 

               18    the cells where they made different decisions for 

               19    individuals, where they were making decisions other than 

               20    just all rejects or all admits, but all rejects, in 

               21    particular, the ones that we're losing here, in that sense, 

               22    if they moved it up I would be satisfied, statistically, 

               23    because I want to look at where there is a potential for 

               24    difference in potential, not whether there is, but potential 

               25    for a difference in admission rates, that's what I want to 













                                                                           84

                1    look at.

                2      Q   So in fact, the proportion of applicants excluded 

                3    doesn't really trouble, doesn't concern you for purposes of 

                4    this analysis, that's not a number that you need to look at 

                5    in order to evaluate your results?

                6      A   I mean, it's a number I offered for information.  

                7    It's not a number in the sense that I really want to do 

                8    an analysis of the comparative information, so that's what 

                9    I did. 

               10      Q   Okay.  When you were looking at the proportion of 

               11    the applicants excluded or not providing comparative 

               12    information, to use you phrase, did you look to see what 

               13    percentage of the minority applicants fell in the cells that 

               14    are not highlighted on these charts?

               15      A   I didn't calculate it separately for each group, no. 

               16      Q   Did you calculate it as an aggregate for all of the 

               17    minority groups put together?

               18      A   No. 

               19      Q   For 1995, would it surprise you to learn that there 

               20    are 245 selected minority -- or let's see, I guess it's a 

               21    total of 267, 267 minority students, in other words, African 

               22    Americans, Native Americans and Hispanics who fall into the 

               23    cells that you haven't shaded?

               24      A   Well, I'm not going to -- I'm not going to act 

               25    surprised or not with respect to this statement.  It is 













                                                                           85

                1    true that minority applicants have on average presented 

                2    themselves with lower grade point averages and lower test 

                3    scores, on average, so in that sense, it may be that there 

                4    are more of them that are in the unshaded areas, that 

                5    certainly could be true. 

                6      Q   Well, not -- I don't want to say more, because in 

                7    fact, by our count there are 595 applicants in the 

                8    non-shaded areas, 267 were minority students, and 328 

                9    were majority students.

               10      A   Okay. 

               11      Q   If I represent that to you, does recognizing that 

               12    you haven't counted it, does that -- is there a reason to 

               13    correct me right off the bat as you did earlier?

               14      A   Certainly, I didn't do the calculations, so I'm not 

               15    going to correct you right off the bat.

               16      Q   And 267, if we have done the calculations right, comes 

               17    out, 267 minority applicants comes out to 39 percent of the 

               18    total number of minority applicants, my question is whether 

               19    excluding or constructing a model so that 39 percent, almost 

               20    40 percent of the minority applicants don't contribute 

               21    comparative information, whether that causes you any concern 

               22    for the design of your model.

               23      A   Well, the reason they are -- the reason they don't 

               24    provide comparative information has to do with the decisions 

               25    made, the results of the review of their credentials, and so 













                                                                           86

                1    this is where we're at.  I would -- I think they -- if they 

                2    are not admitting minority students or majority students in 

                3    these particular cells, then those cells are people with 

                4    credentials that they don't offer admission to. 

                5      Q   So if my numbers are right, then your composite odds 

                6    ratio calculations are based on calculations that don't even 

                7    look at the information provided by 40 percent of the 

                8    minority applicants; is that right?

                9      A   Well, that would be if the percentages -- we can go 

               10    back and calculate, anyone can go back and calculate, 

               11    because I have given you all the grids, you can count and 

               12    see how many are in these cells.  And we were looking at the 

               13    cells with comparative information, and that's what we did.

               14      Q   But assuming that that percentage is right, that would 

               15    mean that your composite odds ratios were calculated without 

               16    looking at the information provided by 40 percent of the 

               17    minority applicants; is that right?

               18      A   All the information was looked at.  All the 

               19    information was looked at.  I didn't go in and exclude 

               20    information.  All the information was looked at.  They 

               21    didn't provide comparative information on that composite. 

               22      Q   And so the computer, going back to the computer, 

               23    didn't take that information into account when it calculated 

               24    the composite odds ratios that we looked at earlier?

               25      A   It got all the information out of there that was there 













                                                                           87

                1    in computing the odds ratio and there wasn't any information 

                2    for comparison.

                3      Q   As you define comparative information?

                4      A   That's true. 

                5      Q   Now, in your medical work, in your drug studies, have 

                6    you had occasion to reach conclusions about the relative 

                7    odds of a treatment when, say, 40 percent of the people who 

                8    took the placebos were excluded from the analysis?

                9      A   It would depend on what's -- where they were at in a 

               10    particular study.  I don't know that that percentage has 

               11    ever arisen.  I don't think that has ever arisen, but it 

               12    would depend on where they are at.  Certainly, with respect 

               13    to analyses, we often exclude large numbers of people.  For 

               14    instance, for instance, if we're looking at the effect of a 

               15    treatment on death, it will turn out --

               16      Q   Treatment for death?  I'm sorry.

               17      A   A treatment, the effect of a treatment.

               18      Q   I'm sorry.

               19      A   The effect on death of a treatment, so for instance, 

               20    you're giving some kind of medical treatment, a heart 

               21    treatment or something like that, it turns out that the 

               22    risk of death is highly related to age, which is, you know, 

               23    that seems -- there seems to be evidence of that and the 

               24    data would do that, would relate that, and we would often be 

               25    in a study where we have hundreds and hundreds of people, 













                                                                           88

                1    but for instance, there would be no deaths from people 

                2    under age 40, say, in the study, and the comparisons there 

                3    would -- for looking at death would exclude those people for 

                4    whom there were no deaths, groups from whom there were no 

                5    deaths, if we took account of age in the analysis. 

                6            So what I'm saying is, depends on the special 

                7    circumstances of the analysis and the variables, but for 

                8    instance, in a medical study such as that, we may wind up 

                9    doing the same -- we wouldn't -- this is a standard method, 

               10    so we wouldn't wind up doing this kind of comparison and it 

               11    may be that large numbers of -- large numbers of individuals 

               12    would not be included in the composite odds ratio that we 

               13    would report for a particular effect.

               14      Q   Is that kind of study that you just described the 

               15    template that you had in your mind when you designed your 

               16    work here?

               17      A   The template I had in mind is doing a good statistical 

               18    analysis for comparison, using methods appropriate to a 

               19    binary response. 

               20      Q   Do you equate the cells where no one was admitted, 

               21    the non-highlighted cells in this particular chart, to the 

               22    situation that you just described where there were no 

               23    deaths?

               24      A   Or where everyone died, either way.  I mean, there are 

               25    cells that don't provide us comparative information for the 













                                                                           89

                1    issue at interest, that's right. 

                2      Q   So from your perspective, those two situations are 

                3    analogous in terms of designing the study?

                4      A   Well, I mean, it's important to understand that 

                5    you want to estimate the effects where there will be 

                6    probabilities, probabilities other than zero and one, 

                7    I mean, that's what we would do. 

                8      Q   Now, you mentioned a moment ago that you chose the 

                9    cells that were defined by the law school and we went over 

               10    those?

               11      A   Yeah, followed the law school grids, that's right.

               12      Q   And this was a document from 1995, it's Exhibit 16, 

               13    the one that you had been given at the outset of your work, 

               14    right?

               15      A   That's right. 

               16      Q   And you just took the grid definitions that you found 

               17    in Exhibit 16 and applied it for the other years; is that 

               18    right?

               19      A   These grid definitions came from that exhibit, that's 

               20    right. 

               21      Q   Did you look at -- did you ever consider whether you 

               22    should use different LSAT ranges, for example, to define 

               23    your cells?

               24      A   Did I ever look at other ones? 

               25      Q   Yes.













                                                                           90

                1      A   No.

                2      Q   So across the top here, and it's a little hard to 

                3    read, but the cells go -- you know, figure out how to say 

                4    this, the third column in, for example, has an LSAT of 146 

                5    and 147, do you see that?

                6      A   Yes. 

                7      Q   That's how it's defined?

                8      A   Yes.

                9      Q   So that's two LSAT points in that cell. 

               10            The next one to the right has 148 to 150, so that 

               11    has three LSAT points?

               12      A   That's right. 

               13      Q   The next one has three again, 151 to 153, am I right?

               14      A   Oh, I'm sorry, yes. 

               15      Q   And then the one continuing to the right has only two, 

               16    154 to 155?

               17      A   That's right.

               18      Q   And we go back to three, 156, 157, 158. 

               19            Did you consider, based on this pattern, whether 

               20    there was a -- whether it made sense to keep this definition 

               21    of the cells when you were designing your analysis?

               22      A   Whether it made sense to keep -- did I think from that 

               23    pattern -- no, I didn't, I didn't worry about that, no.

               24      Q   Just didn't consider one way or the other whether 

               25    these particular lines that were drawn in Exhibit 16 should 













                                                                           91

                1    be changed for purposes of your analysis?

                2      A   Well, what I did is I specifically wanted to use 

                3    someone else's lines, if I might say.  I mean, they used 

                4    these lines, so I used the ones they used. 

                5      Q   Okay.  Even though some cells happened to include 

                6    two LSAT points and some happened to include three?

                7      A   That's the way they looked at the data. 

                8      Q   Okay.  And if you shifted it, obviously, if you put 

                9    the 153, for example, people with LSAT scores of 153 into 

               10    the cell to the right of that and went with the 154 and 155, 

               11    you would change the number of applicants and the number of 

               12    admits in some of these cells, you would expect?

               13      A   Sure. 

               14      Q   And you didn't consider whether you should adjust your 

               15    analysis in any way to take that into account?

               16      A   No, I didn't adjust my analysis to take into account 

               17    of that, no. 

               18      Q   When you designed your structure based on Exhibit 16, 

               19    the grids that you received, did you make any inquiries to 

               20    try to find out whether the admissions office based its 

               21    decisions in any way on these particular lines, for example, 

               22    for LSAT scores?

               23      A   No, I don't think -- I don't think that that's -- 

               24    I don't think I made any -- I know I didn't make any 

               25    inquiries, if that's what you're asking. 













                                                                           92

                1            MR. DELERY:  Okay.  If I could, Your Honor, I would 

                2    like to put up a board which is just a copy of this same 

                3    page without the highlighting on it.

                4            THE COURT:  Sure.

                5            MR. DELERY:  Just so we can see that.  I think we 

                6    can take this down, I don't know.  We need to figure out how 

                7    to turn off the light. 

                8    BY MR. DELERY:

                9      Q   Now, I think when you were here before, in your 

               10    powerpoint presentation -- can you see it?  I should perhaps 

               11    turn it more so that you can have a better view of it.  Can 

               12    you see that? 

               13      A   Right.  I see there is a number missing out of that 

               14    thing.  I mean, someone didn't put a number up. 

               15      Q   Okay.  Actually, I think it turned out that all of our 

               16    copies didn't have -- copies that we had originally didn't 

               17    have the numbers in it, but it's 151, I think.

               18      A   Yeah, yeah, okay.  Right. 

               19      Q   So I'll just write that in.  I think in the copying 

               20    process, when it came over to us, that was missing and so we 

               21    have figured out that it's 151. 

               22            But earlier, when you were here the last time, you 

               23    highlighted a cell here that had -- and I'm going to put 

               24    a black box around it on this chart, 198 applicants and 

               25    17 admits.  Do you recall that from your powerpoint 













                                                                           93

                1    presentation?

                2      A   Well, I certainly highlighted a cell and --

                3      Q   I think it's Exhibit 143, if you would like to look.  

                4    I just want to use this same one as a starting point from 

                5    where you were here.

                6      A   Well, okay.  We can start there.  That's fine. 

                7      Q   It starts on slide 16, you had a series where you 

                8    took us through a cell, and I think this is the cell.

                9      A   Yes, I see that.  I see that.  I see that.  That's 

               10    fine. 

               11      Q   Okay.  At any point did you consider what would happen 

               12    if you had used a larger set?

               13      A   Whether I used these cells --

               14            MR. DELERY:  Actually, let me -- if I can put up one 

               15    other board, Your Honor.

               16            THE COURT:  Sure, but I'm not sure where you're 

               17    going.  Don't forget, this is rebuttal.

               18            MR. DELERY:  If you'll bear with me, I'm building 

               19    back up to the highlighted section, if I could do that for 

               20    a second.

               21            THE COURT:  I'm with you.

               22            MR. KOLBO:  Your Honor, I think it is beyond the 

               23    scope of cross examination at this point, and I do want to 

               24    lodge that objection.

               25            THE COURT:  I'm going to bear with him for just a 













                                                                           94

                1    short while, but this is -- as I have indicated, rebuttal is 

                2    rebuttal.

                3            MR. DELERY:  Sure.  I'll just -- I'll do it very 

                4    quickly, Your Honor, if I could. 

                5    BY MR. DELERY:

                6      Q   You could have drawn a cell, for example, that 

                7    included the eight cells around the one that you started 

                8    with?

                9      A   One could, one could do that. 

               10      Q   And one could look at what the odds ratios would be 

               11    for that cell, for example, and how much comparative 

               12    information that would contribute  as that definition was 

               13    made?

               14      A   Well, I mean, there is going to be comparative 

               15    information, because they -- all these cells, they are all 

               16    shaded, I think.

               17      Q   Okay.  Oh, you're right, they are all within the 

               18    shaded range on the exhibit that you brought today.

               19      A   Right.  If you made cells bigger and included some 

               20    of the unshaded ones, you would have more cells and more 

               21    individuals, that's math, yes. 

               22      Q   Okay.  Similarly, we could -- you could slide this 

               23    nine cell grouping up to the right so that you get the 

               24    uppermost right nine cells, for example, isn't that right?  

               25    You could calculate an odds ratio for that?













                                                                           95

                1      A   One could do that for any combination of cells you 

                2    want, sure. 

                3      Q   Now, you said earlier that your shaded areas included 

                4    80-some percent of the total number of applicants?

                5      A   Right. 

                6      Q   Did you do any analysis to look at where the admits 

                7    were coming from, which cells contributed proportions of the 

                8    admitted students to the law school class?

                9      A   Did I calculate how many -- what percentage of the 

               10    admits were included? 

               11      Q   Yes.

               12      A   Well, I mean, we know virtually all the admits were 

               13    included.  Not all, but virtually all the admits were 

               14    included.  All the cases of admissions except for the cells 

               15    where everyone was admitted or in the few cells where there 

               16    was only one ethic group, so virtually all the admits are -- 

               17    virtually all are included. 

               18      Q   Okay.  And in fact, isn't it the case that about 

               19    75 percent of the admitted students come from these nine 

               20    cells in the red box that I have drawn here, the uppermost 

               21    right-hand nine cells?

               22      A   Those would be the cells with the students who present 

               23    with very high credentials and for whom the decisions are 

               24    made based on those very high credentials and they -- and 

               25    there are -- it's not -- if I can read that from here, but 













                                                                           96

                1    it's not uniform across that, there is quite a difference in 

                2    admission rates across that, but a large number of admits 

                3    come with that cell -- that area, excuse me. 

                4      Q   Okay.  But you didn't look to see what proportion 

                5    and whether, for example, it was about 75 percent of the 

                6    admitted students came from these very uppermost right-hand 

                7    corner cells?

                8      A   I never calculated that percentage, no. 

                9      Q   Okay.  And I guess similarly, we could draw a cell 

               10    above that included the students above a 150 LSAT, which is 

               11    about the 50th percentile, right, and above a 3.0, and could 

               12    calculate an odds ratio for the admitted students in that 

               13    larger cell; right?

               14      A   We can do this for any group of cells.  I said that.

               15      Q   For any combination. 

               16            Would it surprise you if I represented to you that 

               17    95 percent of the admitted students in 1995 came from the 

               18    cells in this grid -- I'm sorry, I have misdrawn the line 

               19    slightly.  I want to drawn it down one. 

               20            So in this range, that 95 percent of the admitted 

               21    applicants came from that upper right-hand quadrant, above a 

               22    150 and above a 3.0?

               23      A   I mean, you can do some calculations based on the 

               24    totals over here.  Clearly a large percentage of the 

               25    admissions, admitted students, come in those cells, 













                                                                           97

                1    that's right. 

                2      Q   And that's consistent with your -- with your 

                3    highlighting, because those are essentially the cells, with 

                4    a few exceptions, that you highlighted this morning; 

                5    correct?

                6      A   I think almost virtually all the cells that had 

                7    admitted students were highlighted.  I think we said this 

                8    already.

                9            MR. KOLBO:  Are you done with this?

               10            MR. DELERY:  For the most part.  I want to ask one 

               11    more question.  

               12    BY MR. DELERY:

               13      Q   So would it surprise you to learn that the odds ratio 

               14    for that larger cell, accounting for 95 percent of the 

               15    applicants, is just over two?

               16      A   Oh, the odds ratio for a larger grid where you ignore 

               17    the difference in LSAT and GPA within there? 

               18      Q   Yes.

               19      A   Would it surprise me that it gets down lower?

               20      Q   2.45?

               21      A   It's going to be lower.  It's clear from looking at 

               22    this grid, it's clear that there are incredible differences 

               23    in admission rates across those cells, and so combining 

               24    those would be -- you can do it, and you can calculate an 

               25    odds ratio, but you're losing a lot of information about the 













                                                                           98

                1    individual, the credentials. 

                2      Q   Are you familiar with the testimony of -- that has 

                3    occurred in the trial from admission officers concerning the 

                4    range of qualified applicants, what the admissions office 

                5    considers to be qualified applicants?

                6            MR. KOLBO:  Your Honor, I just want to object. 

                7            THE COURT:  Your objection is sustained.  We're way 

                8    beyond.

                9            MR. DELERY:  All right.  Thank you, Your Honor. 

               10    BY MR. DELERY:  

               11      Q   So a cell -- let me just ask you this one question.  

               12    I think it's back connected to the highlighted tables. 

               13            The cell that we have drawn there, the large red 

               14    box, has substantial overlap with the highlighted cells 

               15    that you identified earlier as contributing comparative 

               16    information to the odds ratios; correct?

               17      A   I think I have answered that, yes.

               18      Q   So the same -- the same cell that you used to 

               19    calculate an odds ratio above 200, the cells that you used 

               20    to calculate an odds ratio above 200, taken together, yield 

               21    an odds ratio of about 2.4?

               22            THE COURT:  He has already answered.  He says he 

               23    doesn't know exactly, but it would be a different amount.

               24            MR. DELERY:  Okay.  Fair enough, Your Honor. 

               25    BY MR. DELERY:













                                                                           99

                1      Q   Last thing I want to ask you about, Dr. Larntz, is 

                2    your discussion of assumptions earlier this morning.  You 

                3    indicated in response to some questions from Judge Friedman 

                4    that a model that took into account all of the data in the 

                5    cell, in all of the cells, would have more assumptions than 

                6    your model, which looked at only the ones that contributed 

                7    what you called comparative information; correct?

                8      A   In my estimation, my statistical opinion, that would 

                9    require some kind of assumption connecting the cells and I 

               10    made no assumption connecting the cells. 

               11      Q   Do you believe that a model that takes into account 

               12    all of the cells would actually have more assumptions or 

               13    are you just saying that it would have this additional 

               14    assumption, but it might have fewer in other respects? 

               15            Do you understand my question?

               16      A   When we're counting assumptions, I mean, we're -- 

               17    there is a whole slew of different ways of doing the 

               18    counting, okay, so I'm -- I don't want to --

               19      Q   That's exactly what I thought, which is why I asked 

               20    the question.

               21      A   More or less, it depends on the particular aspects 

               22    you're looking at, and so making fewer assumptions is 

               23    generally better, but you also want to validate the 

               24    importance of those assumptions.

               25      Q   Okay.  Is it necessarily the case that a model that 













                                                                           100

                1    included more of the cells in the table would include more 

                2    variables, is that necessarily the case?

                3      A   Oh, no.  In fact, typically you would make -- if you 

                4    connect -- the more variables in the technical regression, 

                5    logistic regression sense, I mean, the number of variables 

                6    included in the model would probably be fewer in those -- in 

                7    that sense, right.  I mean, but including variables in a 

                8    model is not the same as making a set of assumptions.

                9      Q   But both the assumptions that you make and the number 

               10    of variables that you include contribute to the reliability 

               11    of the model; isn't that right?

               12      A   That sounds like it's got to be true, yes.

               13            MR. DELERY:  Thank you, Your Honor.  I have no 

               14    further questions.

               15            THE COURT:  Intervenors? 

               16            MS. MASSIE:  Can we take a very quick break?

               17            THE COURT:  Yes, I am going to take a break.  I 

               18    wanted to know if you had any questions. 

               19            MS. MASSIE:  Oh, yes.

               20            (Recess taken at 10:47 a.m.)

               21                     -- --- --

               22    

               23    

               24    

               25    

Transcripts – Table of Contents


Legal Documents – Table of Contents