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:
10 97-CV-75928
11 LEE BOLLINGER, JEFFREY LEHMAN,
12 DENNIS SHIELDS, and REGENTS OF
13 THE UNIVERSITY OF MICHIGAN,
14 Defendants,
15 -and-
16 KIMBERLY JAMES, et al.,
17 Intervening Defendants.
18 ------------------------------------/ VOLUME 14
19 BENCH TRIAL
BEFORE THE HONORABLE BERNARD A. FRIEDMAN
20 United States District Judge
238 U.S. Courthouse & Federal Building
21 231 Lafayette Boulevard West
Detroit, Michigan
22 Thursday, February 15, 2001
23 APPEARANCES:
24 FOR PLAINTIFF: Kirk O. Kolbo, Esq.
25 R. Lawrence Purdy, Esq.
2
1 FOR DEFENDANTS: John Payton, Esq.
2 Craig Goldblatt, Esq.
3 Stuart Delery, Esq.
4 On behalf of Defendants
5 Bollinger, et. al.
6
7 George B. Washington, Esq.
8 Miranda K.S. Massie, Esq.
9 Jodi Masley, Esq.
10 On behalf of Intervening Defendants.
11
12
13 COURT REPORTER Joan L. Morgan, CSR
14 Official Court Reporter
15
16
17
18
19
20 Proceedings recorded by mechanical stenography.
21 Transcript produced by computer-assisted
22 transcription.
23
24
25
3
1 I N D E X
2
3
4 PAGE:
5 MOTIONS ARGUED:
6 MR. PAYTON 6
7 MR. KOLBO 14
8 MS. MASSIE 33
9
10 WITNESS: PAGE:
11
12 PROFESSOR LEMPERT
13 Direct Examination by Ms. Massie 42
14 Cross-Examination by Mr. Goldblatt 92
15 Cross-Examination by Mr. Purdy 113
16 ReDirect Examination by Ms. Massie 161.
17
18 TANIA KAPPNER
19 Direct Examination by Ms. Masley 170
20
21 E X H I B I T S
22
23 MARKED RECEIVED
24 Trial Exhibit 165 47
25 Trial Exhibit 230 47
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4
1 Detroit, Michigan
2 Thursday, February 15, 2001
3 (At or about 8:30 a.m.)
4 -- --- --
5 COURT CLERK: All rise. United States District
6 Court for the Eastern District of Michigan is now in session.
7 The Honorable Bernard A. Friedman presiding.
8 THE COURT: You may be seated. Thank you.
9 Well, I thought things were going so well in terms
10 of lawyering in this case, and so I have read everything
11 that's been submitted this morning and I still have a lot of
12 questions and so forth, but I guess my primary question
13 initially is, and again, I'm not making a ruling at this
14 point, but again, I haven't had a lot of time to digest it,
15 probably no more time than you have had a chance to write it,
16 so we're all in equal positions, but I have some concerns and
17 my concerns are not substantive law or rules or things of that
18 nature, but just fair play, very frankly.
19 I mean, and I'm starting with the Plaintiffs'
20 position, and that is, right through the whole trial there has
21 been indication from day one that they were going to designate
22 certain portions of the transcripts. I didn't know how, very
23 frankly, but nobody objected at that time.
24 There was the pretrial statement, that's why I came
25 in this morning, to make sure to take a look, and the pretrial
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1 statement says that. In fact, at one time I remember, but you
2 all have a copy of the record and I don't at this point, that
3 we even talked about there is no reason to read those into the
4 record in the Plaintiffs' case, because I can read, and I
5 think I said that, so I don't have the transcript, but I
6 remember saying something to the effect, don't read them in,
7 let's not waste our time, I can read.
8 Then I note from just again, just a quick review,
9 that the Plaintiffs did indicate to the Defendants and
10 Intervenors certainly on January 4 certain portions of
11 transcripts and people and so forth, with specific pages and
12 so forth that they were due. I suspect that all parties knew
13 that, since they received the communications from the 4th, and
14 the first pretrial statement was filed on the 10th, I believe,
15 and there was no objections there.
16 And then there is the supplement that was filed on
17 the 16th, and again there was no objections as to those,
18 except as to relevance or other evidentiary grounds, but -- so
19 what I'm suggesting is maybe you better sit down and talk
20 about this for a bit.
21 I have read the Defendants' objections, however,
22 they all seem to be substantive kind of objections, that these
23 folks are at the University of Michigan, they were within a
24 hundred miles, they are able to be here, which could have been
25 raised before the Defendants rested, or that they are not,
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1 quote, officers, directors, you know. Even though it's a
2 public institution, the definition is a little bit difference,
3 so I have that as a fundamental fairness problem, to start
4 with.
5 With that said, I'll hear, you know, what you have to
6 say, but I think that maybe you should spend a little bit more
7 time talking about this.
8 Mr. Payton?
9 MR. PAYTON: Your Honor, I want to address just the
10 fairness point that you just raised. And this is the backdrop
11 for the fairness point, because I believe that the situation
12 we're in is very unfair to the University if these depositions
13 are allowed in and I'm going to explain hat.
14 I think under Rule 32, I don't think there is any
15 question that these depositions that we're arguing about, let
16 me just talk about, for example, the faculty depositions.
17 THE COURT: Those are the ones I'm --
18 MR. PAYTON: The faculty depositions clearly don't
19 meet the requirements of 32, they are all here. Rule 32 sets
20 out how you operate. If they are here and available when they
21 are deposed, we know that since they are here and available
22 that deposition is not going to be used at trial, they can be
23 called to trial, and you proceed accordingly.
24 So at the depositions, when things are asked that
25 are half a point or they are not clear, we don't at the end of
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1 that complete it as though it were a trial deposition, because
2 they are going to have to call them as witnesses at trial.
3 THE COURT: I agree.
4 MR. PAYTON: So there is an unfairness if those are
5 used, and those are the ground rules that 32 sets out.
6 THE COURT: Let me stop you for one second, because
7 I don't disagree with anything you said, except for what I
8 would ask you to address more particularly, and again, you
9 know, are the ones that are contained in the letter of January
10 4, and then subsequently incorporated, I would suspect, into
11 the Plaintiffs' position when they said we're resting subject
12 to depositions, and that's what I'm more concerned with,
13 because those you had notice of.
14 MR. PAYTON: Well, what we had was, I would say,
15 starting on January 4, sort of a laundry list of potential
16 witnesses and designations. It was just everything in the
17 world, then got whittled down.
18 Well, we filed the pretrial, I don't remember the
19 actual date, but it was the week before the trial, and in that
20 original pretrial, Exhibit B, which is the deposition
21 designations, is not submitted because we hadn't completed
22 that.
23 That's filed on the first day of trial, the 16th. So
24 on the 16th, Exhibit B, which has all the designations, is
25 filed. And in the supplemental joint pretrial statement,
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1 which is on the 16th, we do reserve our objections to all the
2 depositions.
3 THE COURT: No, you don't. You said the parties
4 reserve the right to object to the admissibility of any
5 particular exhibit or deposition transcript excerpts on
6 relevance or other evidentiary grounds.
7 MR. PAYTON: If they can't -- you know, Rule 32, if
8 they can't use it, they can't use it.
9 THE COURT: But Rule 32 is not an evidentiary
10 grounds, that's a substantive grounds. The person is 100
11 miles away, bring them in. Evidentiary grounds means that,
12 hey, it's not relevant, it's not -- you know, it's this, it's
13 that, there's no basis, something of that nature, as opposed
14 to the deposition itself. I mean, that's how I interpret it.
15 MR. PAYTON: I guess that's not the way we
16 interpreted that at all; that when they say that we knew all
17 along that they were going to certainly use these depositions,
18 I'm telling you, that's certainly not what we knew. If they
19 wanted to call these witnesses, that would be fine, because
20 then we would put them on and we would fill out the record and
21 you would see the complete picture of what is going on. I
22 don't have a problem with them calling the witnesses at all.
23 And they put them all on there, and to be quite honest, I
24 didn't even think they were going to try to put in these
25 depositions, but we did intend to reserve our rights. And it
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1 may be that they didn't fully appreciate that or that we
2 didn't fully appreciate what they were about to do.
3 THE COURT: Maybe there is a misunderstanding.
4 MR. PAYTON: I'm just saying on the issue of
5 unfairness, which is what the Court raised, I'm just saying on
6 the issue of unfairness, I believe this is much more unfair to
7 us than this is to them, okay, because that's the issue the
8 Court just raised, okay.
9 THE COURT: Okay. What I'm hearing from you is that
10 there was a misunderstanding and all I have before me is the
11 writings. I wasn't there. I don't know, you know, how the
12 parties -- meetings of the minds of the parties were, all I
13 have is what's before me.
14 MR. PAYTON: If it's -- I guess, you know, I don't
15 want to become overly technical, but if you want to use a
16 deposition and not use it with the witness right there, then
17 to simply say we're going to use any deposition out there,
18 with nothing more, the deposition is hearsay, unless we have
19 some way to get it in. That's an evidentiary objection.
20 THE COURT: I don't know if it's hearsay in that
21 sense, but I don't disagree with you. It's very unusual to --
22 when the witness is 100 miles away --
23 MR. PAYTON: It's very unusual.
24 THE COURT: -- to agree to not call that witness and
25 just -- but I didn't know, and I don't know what went through
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1 the minds. I mean, I thought at the time, very frankly, when
2 he rested and said we're going to read some portions of a
3 deposition in, I thought that was very unusual.
4 MR. PAYTON: It is unusual and let me just -- so you
5 see the complete picture, I think you do, there are other
6 depositions where they don't fall into this category. These
7 aren't all the depositions that they could have put in or
8 supplemented the record with, but as for these depositions,
9 where the witnesses are all right here and they could have
10 called them, I actually thought they were going to call them.
11 The idea that we can now put in what I would call an
12 incomplete record, which is what the depositions are, is
13 unfair to us on the unfairness point, just unfair. I think
14 the depositions are hearsay. If we just gave you a document
15 and said here it is, it should go in, it's hearsay unless we
16 --
17 THE COURT: I'll get to the legal arguments or the
18 substantive arguments. I mean, I'm looking at the list. Lee
19 Bollinger, well, I would have sent back a letter and said,
20 wait a minute, we're not going to agree to President Lee
21 Bollinger. He is going to be testifying here. Why would we
22 ever agree to designate any portions of his dep.
23 I'm just thinking out loud. When I read this, I got it earlier
24 this morning, I have been reading this maybe for a couple
25 hours now, and the same thing was still nagging. I would have
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1 written back a little note, what are you talking about,
2 Stillwagon? He is going to be testifying here. Why would I
3 allow designations of his deposition? But as far as I'm --
4 see here, maybe I'm wrong, there has been -- there was no
5 response and it was -- it kept being perpetuated in the
6 pretrial and then the supplemental pretrial.
7 The real question, I guess, and I'll hear it, is the
8 Plaintiff -- I mean, what's the Plaintiffs' position, do you
9 really need these? I think it's unusual and I don't know if I
10 would -- I'm waiting to get to something that was taken out of
11 the deposition.
12 MR. PAYTON: Let me just ask you, the issue you just
13 raised, take Bollinger, President Bollinger. I think under
14 the rules, since he is a party, they can probably use his
15 deposition, that is, there is not one answer to all of these,
16 that under the rule, they can use it, because he is a party.
17 The faculty members aren't parties and they couldn't use them.
18 And I think that we clearly intended to be reserving these
19 objections in the supplement, which contains that. For them
20 to say that we waived all of this, I just think that's just
21 fanciful. We can't waive it. Maybe there is a
22 misunderstanding. We certainly didn't intend to waive it.
23 You're exactly right, that we never thought this is what would
24 be happening at trial. I don't think anyone would have
25 thought that, but --
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1 THE COURT: I thought that as soon as they -- just
2 at their closing, when they said, we close subject to this, I
3 thought, it went through my mind immediately, it's unusual,
4 but if the parties agree, they have been getting along pretty
5 well.
6 MR. PAYTON: We certainly did understand that there
7 would be things that they would be trying to move in, that
8 some of those would include depositions, and some of those
9 depositions in fact would not be objectionable, because, just
10 what I said, take President Bollinger, but that some of them
11 --
12 THE COURT: But President Bollinger, even his would
13 be objectionable, because he testified here live.
14 MR. PAYTON: Well, actually, I agree that that's how
15 it ought to go. I think there is an argument that since he is
16 a party, and in fact, they can use it for any purpose, and I
17 think Rule 32 says something like that, but I'm just saying
18 that --
19 THE COURT: My issue is, again, I don't want to get
20 into it, since he testified, what possible purpose could there
21 be, can't be cross examination, can't be this, can't be that,
22 because he testified. I mean, under Rule 32 there is not one
23 other thing left in that whole rule that Bollinger, that
24 President Bollinger's testimony could -- deposition could be
25 used for, because he was here live.
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1 MR. PAYTON: Well, I actually tried to be more
2 nuanced about it and maybe I was being too technical, but I
3 think it says that they can use a party's deposition for any
4 purpose, including just putting it in.
5 THE COURT: If it's relevant.
6 MR. PAYTON: So I wasn't going to argue about that.
7 THE COURT: We still have the relevance.
8 MR. PAYTON: We still have that relevance argument,
9 but I think we can work that out. As far as the other
10 depositions, I think they can't use them under Rule 32.
11 THE COURT: Well, I agree with you, except for the
12 fact that there appears to be an agreement, or there appears
13 on paper to be an agreement. Now, whether there is an
14 agreement or --
15 MR. PAYTON: I think there was no agreement and I
16 think what's on paper is our reservation, all the parties'
17 reservation of rights with regard to depositions. There was
18 no agreement.
19 Now, I guess the question is, what do we do now that
20 there was no agreement. I think the rules are pretty clear
21 and I think the harm is also pretty clear.
22 THE COURT: Just as to this issue, at this point.
23 MR. KOLBO: Not the substance of the --
24 THE COURT: Well, I'll hear a little.
25 MR. KOLBO: I have a number of points, Your Honor.
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1 THE COURT: Go on.
2 MR. KOLBO: We were certainly surprised. We learned
3 for the first time Wednesday afternoon about 3:30 that there
4 was going to be an objection to receiving these depositions in
5 this case. As the Court indicated, we made this clear long
6 ago that we wanted to proceed this way and there were no
7 objections. In fact, what happened was, there were a number
8 of conversations with Counsel about this and there was a clear
9 understanding that they were going to cross designate.
10 THE COURT: They were going to do what?
11 MR. KOLBO: That they were going to cross designate.
12 We offered portions of the depositions from a number of the
13 individuals and we got back in most cases more cross
14 designations than designated to begin with, so there was a
15 clear understanding on our part that both parties were going
16 to offer these depositions in trial, frankly, in part, Your
17 Honor, to save time, and as a courtesy to the University not
18 to bring these people here, when we have got what we want in
19 their transcripts. We thought that was just the simplest way
20 of proceeding, and that's why we did it that way.
21 There were a number of conversations about this. Not
22 one time until Wednesday afternoon was there an objection to
23 this. And it seems to me, Your Honor, this is the kind of
24 thing that they had an obligation to object to, because it was
25 easily curable. Had Mr. Payton said to me at any point that
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1 we are going to object, you can't bring Professor Cooper, you
2 can't use his deposition, because he is here, we would have
3 said simply, Your Honor, well, bring him. We wouldn't have
4 needed to subpoena them, Your Honor. These are people under
5 the control of the University. We would have simply said,
6 bring them, we want their testimony.
7 That's what we did with Erica Munzell, Your Honor.
8 We called her in our case-in-chief. I didn't have to go
9 subpoena her. I simply said to Mr. Payton, we want her here,
10 and she was here, because she was under their control. That's
11 what we would have done, very simply with respect to these
12 other witnesses, had I had any idea that there was going to be
13 an objection to the using of their depositions in this case.
14 It just came totally out of the blue to us at this point, Your
15 Honor.
16 On the -- with respect to the pretrial order, I'm a
17 little concerned about that, Your Honor, and I'm not going to
18 cast my blame about this, but the first pretrial order I
19 signed and looked at was an extensive one, and said nothing
20 about reserving the rights of any kind with respect to
21 depositions.
22 It was only the first day of trial I was presented
23 with -- the very first day of trial as we started I was
24 presented with a supplemental that I thought just sort of
25 updated where we were in terms of -- in terms of the
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1 designations. It turns out there was a substantive change put
2 in there that allowed this right to reserve something about
3 depositions.
4 I guess it's my fault, Your Honor, I should have gone
5 back and fly-specked it and said is there something
6 substantively different here, but clearly in the first one
7 that was circulated and that I read very carefully, nothing
8 was said about reserving any rights with respect to
9 depositions in terms of their admissibility.
10 So I think it's just too late in the game for this,
11 Your Honor, and we have been prejudiced by operating, I think
12 reasonably, under the assumption that this was not going to be
13 a problem.
14 We checked the record on this, as Your Honor has
15 mentioned. We mentioned this at the close of our case that we
16 were going to do this. Mr. Payton, in his remarks,
17 acknowledged that in fact there were going to be additional
18 things presented. It seems to me that was the time, Your
19 Honor, to raise this objection, and we would have simply said,
20 well, bring them, bring them.
21 And all we'd do, if they brought them, and in fact
22 they can do this tomorrow if they are really concerned about
23 this, all we're going to do is ask them, did we ask you these
24 questions and did you give these answers, that's all it's
25 going to be, Your Honor.
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1 If I might just address the substance of the
2 admissibility of these depositions, Your Honor, we don't think
3 there is any question, Your Honor, that they are admissible
4 for any purpose. These are admissions of the University of
5 Michigan Law School. Every one of these people, because I
6 have told Mr. Payton we will withdraw Stillwagon on this
7 point, every one of these other depositions are individuals
8 who were acting under authority of the law school for the very
9 thing that's at issue in this case; that is, we have got a
10 deposition of the Chairman of the Faculty Admissions
11 Committee, of several other of the Faculty Admissions
12 Committee. Erica Roselle, some additional deposition
13 designations there, she was actually implementing the policy.
14 These are all admissions, and admissions, Your Honor, of
15 course, can be used for any purpose. It doesn't have to be
16 just for impeachment, for example. In fact, I took a look at
17 the -- there is one of the notes to Rule 32 in the Civil
18 Procedure Rules that talks about this very issue. The notes
19 to the 1980 amendment, Your Honor, regarding subdivision
20 (A)(1), it says, and Rule 801(D), 801(D)(2), and that concerns
21 admissions of a party made by those authorized to make them,
22 agents, so forth, make the statements of an agent or servant
23 admissible against the principle under the circumstances
24 described in the rule; that is, in 801(D)(2). The language of
25 the present subdivision, Rule 32, that is, is therefore too
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1 narrow.
2 So what you really have to look at here in terms of
3 admissibility is whether or not this is hearsay. It's not
4 hearsay, because these statements by these people acting under
5 authority for the very thing that's at issue in this case, the
6 admissions policy, those are admissions.
7 And that's, I think, made very clear, Your Honor, if
8 you look at 801. 801(2)(D), admissions by a party opponent,
9 the statement is offered against a party and is, D, a
10 statement by the party's agent or servant concerning a matter
11 within the scope of the agency or employment made during the
12 existence of the relationship.
13 There is just no question, and I don't think it
14 matters who these people were at the time of the deposition,
15 the question is, what were they doing, what statements did
16 they make and what were they testifying about, and that
17 concerns a time period and decisions they made when they were
18 acting under the authority of the law school with respect to
19 these admissions policies.
20 I don't think there is any question, Your Honor, that
21 these are admissions and for that reason alone they are
22 admissible without regard to Rule 32.
23 Just as a matter of fairness, Your Honor, I just
24 can't imagine that given the course of the conduct here that
25 there wasn't some obligation by the Defendants to raise this
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1 easily curable matter. And as I said, it can still be cured.
2 They can bring them tomorrow, we will simply ask the
3 questions, read the answers, and that's the end of it. That's
4 all we want to do with these folks. That's all we want these
5 depositions for.
6 MR. PAYTON: Your Honor, I believe Mr. Kolbo
7 misspoke and I just want to correct something he said. He can
8 stay here if he wants.
9 He said that in the pretrial, original pretrial,
10 there was no mention of any objections and that there was a
11 supplemental pretrial that was filed on the first day of trial
12 and we snuck something in on him. In fact, the original
13 pretrial did not contain Exhibit B at all, so there is no
14 Exhibit B. It hadn't been done. And Exhibit B is the
15 deposition designations.
16 Exhibit B was completed on the first day of trial,
17 and the point, the reason for the supplemental pretrial, is to
18 include the deposition designations and Exhibit B and that's
19 where this objection comes. It has to come there.
20 THE COURT: Even -- yeah, even if that's true, you
21 don't reserve the right to object to the depositions
22 themselves only, and you talk about excerpts, you don't even
23 talk about the depositions. It says the deposition transcript
24 excerpts on relevance or other evidentiary grounds.
25 MR. PAYTON: But all Exhibit B is is excerpts.
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1 THE COURT: That's right. All he is asking, that's
2 my point, all he is asking for is excerpts, and so you're
3 saying that according to the way I read this, is that you're
4 reserving the right as to relevance or other evidentiary
5 grounds such as hearsay, those are evidentiary grounds, but
6 not as to the excerpts themselves.
7 MR. PAYTON: Oh, no, I think we are, and I think
8 that -- I mean, I listened carefully. I think that there is
9 no argument at all that under Rule 32 we would win. I here
10 the fairness point and I hear was he on notice. I think the
11 supplemental pretrial puts him on notice and I think the
12 fairness cuts the other way.
13 MR. KOLBO: Well, Your Honor, the original pretrial
14 order, the one I looked at very carefully and spent a lot of
15 time on it, says this about exhibits: The parties will also
16 file Exhibit B to this joint pretrial order, at the beginning
17 of which is designated deposition transcripts. That's it.
18 At the time this was put together, Your Honor, this is quite
19 some time after we had already identified the deposition
20 designations we were going to use. That again was one of the
21 first things we did. We did it on January 4 and three days
22 later one other deposition.
23 So when this was put together, the University knew
24 what we were planning to do with respect to deposition
25 designations, even if it's not filed here as part of Exhibit
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1 B. That was made plain to them.
2 It wasn't until I received that supplemental, Your
3 Honor, on the first day of trial, that some new substantive
4 language was put in there, and frankly, I didn't look at them,
5 because I didn't think there was going to be any substantive
6 change at that point.
7 With respect to the original pretrial order, Your
8 Honor, again, there is a section on issues of law to be
9 litigated, or I should say evidence problems likely to arise
10 at trial, Section 8. Nothing was suggested there that there
11 was -- and again, at a time when they knew, at a time when
12 they knew that we were going to designate depositions and they
13 knew of every one of those depositions, there has not been one
14 new witness that we have designated since that first week of
15 January, Your Honor. We added a couple more designations
16 within those depositions, but not one new witness was
17 designated after the first week of January as far as our
18 designations.
19 And when this thing was put together, there was a
20 section on evidence problems likely to arise at trial, nothing
21 was said about the possibility of anything arising with
22 respect to any deposition designations. We think that was the
23 time to alert us, we would have easily cured it, and we
24 wouldn't be here today arguing about this.
25 MR. PAYTON: I guess I'm not clear how the rules are
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1 supposed to work. I'm not sure it's my role to say, you know,
2 there may be a problem down the road. We reserved our rights.
3 We have been getting, I think the Court understands, we have
4 been getting additional designations with regard to these
5 witnesses, I think, all the way up to yesterday. You know,
6 it's not like we had the complete list of these, it just keeps
7 coming in, and I think we were entitled to think that at some
8 point we're going to raise all this and sort it out. Now
9 we're trying to sort it out.
10 And to say that we waived everything, they can put
11 anything in, I just think is not true and it's certainly not
12 fair. This is not the way this should be handled, it seems to
13 me, at all.
14 THE COURT: In this matter, the Defendants take the
15 position that none of those depositions -- not none -- those
16 that in their opinion don't fall within the officer/director
17 exception, however, as it would apply to a public institution,
18 the Court believes that Rule 32 was waived by the Defendants
19 for the following reasons: Number one is a letter was sent on
20 January 4 indicating what witnesses they intended to call by
21 deposition, and not the total depositions, but excerpts from
22 those depositions, that at least on this record today there
23 was no letter sent back or objections or anything else filed
24 by the Defendants.
25 At the conclusion of the Plaintiffs' case it was
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1 placed on the record in no uncertain terms that they intended
2 to read into the record or to have the record be part, parts
3 or excerpts of depositions. There was no objection at that
4 time. In fact, there was a discussion at that time on the
5 record concerning that between the Plaintiffs and the
6 Defendants and the Court.
7 Further, the pretrial statement in this matter, more
8 particularly the supplemental pretrial statement, without
9 getting into objections anticipated, anticipated that there
10 was going to be excerpts of depositions that were going to be
11 used in this matter and that the Defendants in that document
12 did reserve their right to relevance and to other evidentiary
13 grounds, but not as to reserving their right under Rule 32 to
14 actually calling the witnesses themselves.
15 And I think it's very clear on this record that that
16 was at least -- I can't tell you what is in anybody's mind,
17 but I can tell you that if you just read the documents and
18 read the records and so forth, the record and so forth, that
19 was what appears to be anticipated by the parties.
20 I agree that it was an unusual way of doing things, however,
21 the parties had been getting along very well on a professional
22 level and had stipulated throughout the whole proceedings to
23 lots of things that in other cases may have been unusual, and
24 as I think I have indicated on many occasions, there has only
25 been one substantive dispute in terms of discovery that I was
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1 aware of that I had to decide and it was one the parties
2 couldn't decide, because it involved third parties.
3 But I think it's very clear and at this point it would be
4 unfair to not, at least the ones that were on notice, and
5 those are the ones that are contained in the January 4 letter,
6 and also the Exhibit B, and therefore, the Court will allow
7 those to be designated.
8 Now, as to the evidentiary objections, as to the
9 relevance and the hearsay, those, I haven't seen those yet, so
10 it would be hard for me to rule evidentiary on something that
11 I haven't actually seen at this point; however, the Court
12 will, when I have a chance to see them, will determine, number
13 one, the relevance, and number two, the hearsay objection and
14 give it as much weight as it needs. I just can't do it at
15 this point, because I haven't seen them. I couldn't tell you
16 if it's relevant, I couldn't tell you if it's -- but at least
17 as to those, there was also always anticipated that there
18 would be cross designations by the Defense.
19 And now again, I don't have a copy of it right in
20 front of me of Appendix B to the supplemental joint pretrial,
21 so I'm not sure if that contained cross designations or not,
22 but if it did, that's fine, if it didn't, I think the
23 Defendants would be allowed to cross designate, of course.
24 Okay. Mr. Payton?
25 MR. PAYTON: I think this is just a clarification.
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1 We raised a relevance objection in connection with Professor
2 Cooper's deposition, as well. He not only, we thought, was
3 not within Rule 32, but the testimony that they are trying to
4 elicit from him, we think, is irrelevant to any issue in this
5 case. It's about things that happened pre1992 policy.
6 THE COURT: I agree with you. I think from reading
7 your response and nothing else, because I haven't read those
8 depositions, I think that's probably a lot of stuff in there
9 that's irrelevant. The pre '92, the -- you know, the -- I
10 mean, I don't want to rule at this point, but assuming that at
11 least what you have put into your very limited Pleadings,
12 because you haven't had any time to put more into there, I
13 have to agree with you that there appears to be lots of stuff
14 that's not relevant, but I can't rule on that until I see it
15 and I was -- you know, when I see it I will give that which is
16 relevant some credence and that which is not relevant no
17 credence, that which is hearsay no credence, and that which is
18 not hearsay as much weight, if any, as it deserves, but I
19 happen to not totally disagree with you. If it's pre, I'm not
20 -- that's not an issue before me.
21 MR. PAYTON: Okay. And there are issues regarding
22 documents. How do you want to proceed with those?
23 THE COURT: Well, the documents are a little bit
24 more difficult to deal with, because I guess we're going to
25 have to, you know, deal with them. I don't know how else to
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1 deal with them, unless you can sit down and agree. I can tell
2 you right now that I don't know what was anticipated. Let me
3 hear from the Plaintiffs for a second. The things like the
4 draft of Exhibit 4, with no kind of foundation, I probably
5 wouldn't allow it in even if it went to trial, because there
6 would be no foundation, but let me hear from them.
7 MR. PAYTON: Let me just raise one other issue,
8 which I can't remember if I said this at the beginning. If I
9 did, I apologize. Stillwagon, Goodman and Heriot, we have
10 agreed, are not being offered by anybody at this point.
11 THE COURT: Oh, okay. Good. Stillwagon?
12 MR. PAYTON: Stillwagon, Heriot and Goodman.
13 MR. PURDY: They are withdrawing Heriot and
14 Goodman's portions, we're withdrawing Stillwagon's portion,
15 Your Honor. Let me just say we had a discussion and with
16 regards to the documents that are part of all of these
17 submissions, we had a discussion Wednesday and Counsel made
18 very clear to us they lifted their objection to those
19 documents being considered by the Court. I think the Court
20 has already said the Court will look at them and give them
21 whatever weight, relevance, the Court may deem appropriate.
22 THE COURT: If there is no objection, we will
23 receive them.
24 MR. PAYTON: That's fine.
25 MR. PURDY: So those have been lifted, so those will
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1 simply be part of the designations, we would assume. If and
2 when the Court looks at them for whatever purposes, it will
3 make its own determination as to whether or not they are
4 relevant or relate to any of the issues that the Court will
5 decide and we will all -- obviously the parties will live with
6 that, but there should be no dispute now that those documents
7 that are part of those designations are in, and we made every
8 effort to lay the foundations so the Court would understand
9 what those documents were.
10 MR. PAYTON: Although, just -- I don't think he is
11 going to disagree, if Cooper's deposition is not in, then all
12 the documents that relate to Cooper's deposition are not in.
13 THE COURT: Yes, I don't think there is any --
14 because it would be an impossibility for any kind of
15 foundation.
16 MR. PAYTON: That's right.
17 THE COURT: Okay.
18 MR. PAYTON: Two other things. We're done with
19 this.
20 MR. PURDY: Well, let me just -- Judge, just so it's
21 clear, because we don't want any more misunderstanding.
22 We understand that if the Court were to determine that
23 something that Dean -- Associate Dean Cooper, at the time,
24 because that's the relevant time period, he was serving as
25 Associate Dean, wrote some letters that postdated the
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1 admissions policy in question, those are principally what
2 we're talking about, so I mean, they are either relevant or
3 they're not. We don't know how they couldn't be, but
4 certainly if the Court determines that something he said is at
5 a time period which is irrelevant about a document which the
6 Court also -- a document that the Court also determines is
7 irrelevant, we understand that, but --
8 THE COURT: But I think the issue was, if there is a
9 document that went with -- is it Dean Cooper -- I'm not
10 familiar with --
11 MR. PURDY: Yes, sir, Associate Dean.
12 THE COURT: That went with his testimony, then that
13 wouldn't be admitted, because --
14 MR. PURDY: Well, if his testimony weren't admitted,
15 obviously --
16 THE COURT: Then his document wouldn't be.
17 MR. PURDY: Sure. Okay.
18 THE COURT: I think that's what Mr. Payton was
19 saying, just to make sure there is --
20 MR. PURDY: That's all.
21 MR. PAYTON: I have a couple of housekeeping things.
22 We used an exhibit that we had drawn, that Professor
23 Raudenbush had drawn, we reduced it to an eight and-a-half by
24 eleven form. I think the Plaintiffs don't have a problem with
25 it. We will submit it. I think it's Exhibit 228.
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1 THE COURT: Great.
2 MR. PAYTON: We will just do that. It's somewhere
3 here.
4 MR. DELERY: Actually, we are making one small
5 change at their request.
6 THE COURT: Whenever that comes in, just make sure
7 we have a copy and then somebody keep his original just in
8 case.
9 MR. PAYTON: We will do that. And there are two
10 other things, Your Honor, that are requests, both on my
11 behalf. I don't think there is going to be an objection.
12 First is, the Court asked for a submission of a 20-page paper
13 within ten days. I request that we be given 30 pages. This
14 is a very complex case and 30 pages --
15 THE COURT: Anybody have any objection?
16 MR. KOLBO: No.
17 MR. PAYTON: There was a related --
18 THE COURT: The reason I'm kind of smiling is, at
19 the time I said 20, I thought there would be -- there would be
20 some negotiations. There were some negotiations on the date
21 and I knew I didn't have a lot of time on that, because I
22 wanted to do something, and then I never heard anything on it,
23 so it's funny. Yes, 30, I have no problem with that.
24 MR. PAYTON: Mr. Kolbo wanted to make it plain that
25 30 means 30 and that we, none of us, can file a motion for
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1 additional pages. I think we all agree with that, 30 pages is
2 30 pages.
3 THE COURT: There is no time to file motions.
4 MR. PAYTON: The ten days, we wanted to come up with
5 an actual date so that there is no confusion about that. I
6 think we all have assumed that ten days would be the 26th,
7 which is a Monday. We ask that it be Tuesday.
8 THE COURT: Tuesday is fine. I thought it was the
9 26th, too, and Tuesday is fine.
10 MR. PAYTON: Tuesday is fine. And then finally, I'm
11 asking if we can have a little latitude tomorrow. I
12 understand the Court said 45 minutes, sometimes I talk fast,
13 sometimes I talk slow, and if I run over by a couple of
14 minutes or any of us run over by a couple of minutes --
15 THE COURT: I'm not going to ever -- I'll tell you
16 when the 45 minutes are up and you can have five minutes to
17 wrap it up. By that time, we're not in a gigantic hurry.
18 MR. KOLBO: Your Honor, just so I understand
19 something, do I understand the Court is accepting the
20 designations, subject to the Court's determination about
21 relevance and things like that?
22 THE COURT: That's correct.
23 MR. KOLBO: They are going to be admitted and
24 considered by the Court?
25 THE COURT: That is correct. And the cross
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1 designations.
2 MR. KOLBO: And the cross designations, certainly.
3 I don't know if now is the appropriate time, but we
4 Received yesterday some designations from Intervenors for
5 Claude Steele and I think we were told there are going to be
6 others. I haven't seen them yet.
7 We have a great deal of concern about getting
8 designations for the first time at this late hour, Your Honor.
9 We haven't got the time to cross designate. We think with
10 respect to Steele, Your Honor, he was an expert, he should
11 have been called as an expert, as experts are always called.
12 I understand there were proceedings about that, but using his
13 deposition, we think, Your Honor, an expert of the
14 University's deposition used by the Intervenors, we think it
15 is inappropriate and we think it is just too late at this
16 point to be doing this.
17 MR. PAYTON: I have got to just -- I think he
18 misspoke again. If, in fact, former Dean Cooper is determined
19 to be not relevant, then I think the Court will look at that
20 and say, he is not in. If he is not relevant, he is not
21 relevant and he doesn't come in. I'm not making a relevance
22 argument about the other faculty members. They clearly --
23 we're not arguing about their relevance. We're arguing about
24 whether or not they should come in at all. But Dean Cooper is
25 talking about events that predate --
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1 THE COURT: I thought they said they were
2 withdrawing Dean Cooper.
3 MR. PAYTON: They didn't say that.
4 MR. KOLBO: Stillwagon.
5 MR. PAYTON: All I'm saying is if Dean Cooper is
6 irrelevant, then he shouldn't come in. You have to look at
7 that to determine that, but if he is not relevant, he is not
8 in.
9 THE COURT: Absolutely. And he very well may not
10 be. I haven't seen it yet.
11 MR. KOLBO: And it just seems to me, Your Honor,
12 there could be portions that the Court might consider
13 irrelevant and portions that might be relevant, for example,
14 particularly, letters and comments written after the policy.
15 MR. PAYTON: Sure. Sure.
16 THE COURT: I'll take a look at it. Okay.
17 MS. MASSIE: Good morning, Judge. We do have some
18 designations that have been filed here in the joint notice at
19 Tab C.
20 THE COURT: Of what?
21 MS. MASSIE: It's the joint notice regarding trial
22 exhibits and deposition designations and it's Tab C.
23 THE COURT: Oh, Tab C of the --
24 MS. MASSIE: Right. And I don't know if you --
25 THE COURT: I have it.
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1 MS. MASSIE: -- have had a chance to look at those
2 at all.
3 THE COURT: Doesn't make a difference, because they
4 are all just pages, but go on.
5 MS. MASSIE: Okay. On Professor Steele, I think his
6 deposition clearly comes within the rule. He is beyond our
7 subpoena power, as we know from the proceedings which happened
8 before, and he is out -- he is out of the district. He is
9 more than 100 miles away from the Court. I just don't think
10 there is any question that his testimony by deposition is
11 admissible. The Plaintiff was there, was taking the
12 deposition, had the opportunity to develop the record.
13 As we have talked about before, Professor Steele's work is
14 really very essential to understanding how race and racism
15 affect academic performance and I think it will help the Court
16 reach a determination very, very much. I just don't think
17 there is any basis for the Plaintiffs' argument against the
18 inclusion of the deposition of Professor Steele. We have some
19 other designations there, as well. I'm not sure --
20 THE COURT: What's Plaintiffs' position as to the
21 other ones, first?
22 MR. PURDY: Your Honor, I'll address this, and I
23 apologize, I sent Mr. Kolbo up to finish up one subject and we
24 went to the other.
25 Your Honor, first and foremost, these are -- we just
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1 got these, and so I think that this is not the time to be
2 providing designations. This was supposed to be done as part
3 of the pretrial, before trial, and that's the first, that's
4 the first subject, so we clearly have not had a chance to go
5 through. And even if the Court were to admit this, we would
6 want the opportunity to cross designate, but the other thing
7 on -- let me just deal with Dr. Steele first.
8 Dr. Steele is an expert for the University and this
9 Court has already heard a lengthy dispute between the
10 Intervenors and the University over the Intervenors' efforts
11 to try to get the testimony of Dr. Steele and the Court made a
12 ruling and said he wasn't going to testify. It's highly
13 unusual, if not unprecedented, Your Honor, I'm not aware of a
14 situation where another party designates the opposition's
15 expert and then is now permitted to read in testimony.
16 The problem we have here is, I believe, although I
17 haven't gone through these lengthy designations that we just
18 received, that they're probably attempting to get Dr. Steele's
19 report into evidence, and clearly, it's been -- one of the
20 things that we have all been proceeding under is if you want
21 to get an expert's report into evidence, bring the witness
22 here so that the witness can be subject to cross examination
23 at the time of trial about that, about that report.
24 That, of course, wasn't done and you as the Court
25 noted that the Intervenors had an opportunity, if they so
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1 chose, to go out and take their own deposition of Dr. Steele
2 and develop a record or to develop a deposition for the
3 purpose of trial and they didn't do that.
4 And now, yesterday, we get these designations for
5 the first time concerning Dr. Steele and so we think, A, they
6 are untimely, B, it's improper to attempt at this late date to
7 get an expert report in through this method, and so we would
8 object on that ground.
9 And finally, Your Honor, with regard to the others,
10 we haven't even begun to go through any of those. I will tell
11 you, I mean, we took the depositions of several of these
12 people, but the Intervenors have chosen not to call these
13 witnesses, and so we -- at this time, to suddenly designate
14 them as opposed to having done this early in the case, when we
15 could have potentially had the opportunity to cross designate,
16 we just think it's untimely. So we object, Your Honor.
17 MR. PAYTON: Your Honor, just on the Professor
18 Steele point, we have no objection to his deposition being
19 designated. We actually think that this is the appropriate
20 way that the Court suggested he could come in. He is outside
21 the jurisdiction, but we have no objection.
22 MS. MASSIE: Judge, if I might.
23 THE COURT: You may. Hold on one second. Can you
24 get my local rules?
25 Hold on just one second.
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1 MS. MASSIE: Sure.
2 (Brief pause.)
3 THE COURT: Okay. Go ahead.
4 MS. MASSIE: Is there a question on the local rules
5 that you want us to address?
6 THE COURT: The question on rules, my first question
7 is, I think the rules provide that you have to designate prior
8 to the -- to now.
9 MS. MASSIE: Well, on Professor Steele in
10 particular, if I can address that, we anticipated that he
11 would be testifying until into the trial. As you know, we
12 tried to get him here, and that did not work out, but I think
13 that we didn't designate because we expected him to be here.
14 As to some of the other people, we had a 30-hour --
15 THE COURT: The truth of the matter is that at the
16 beginning of the trial he wasn't listed as a witness on your
17 witness list or anything.
18 MS. MASSIE: He was.
19 THE COURT: Oh, was he?
20 MS. MASSIE: He was. He was. He was. He was on
21 the University's will-call list.
22 THE COURT: No, but on yours. I'm talking about the
23 Intervenor's list.
24 MS. MASSIE: No, that's right, because we -- in the
25 local -- we were relying on the provision of the local rules
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1 that says any party may call another party's will-call witness
2 without further notice.
3 I'm not trying to rehash all that, I'm just saying
4 we expected to have his testimony before the Court and told
5 the Plaintiff that we intended to do some deposition
6 designations on Tuesday, when we all got together, from
7 Professor Steele's deposition and also some of the other ones.
8 In part, we have been operating under the 30-hour time limit
9 that the Court imposed on each side in the case, and so we
10 have used some of the designations as a substitute for calling
11 people we otherwise would have called absent that limitation.
12 And I have told the Counsel for both parties, and I
13 think even said on the record, though I'm not positive about
14 that, Judge, that we were a bit behind on our designations,
15 but we were working on them. I'm sorry that they come late,
16 but they have the time to cross designate now. Obviously,
17 they can cross designate.
18 And on Professor Steele in particular, we had every
19 -- we expected him -- we had every expectation that he was
20 going to be here. The University is not the opposition, as
21 Mr. Purdy puts it. We didn't agree about that one issue, but
22 they do agree that the deposition can come in, the
23 designations can. They do include the report.
24 Mr. Purdy took a very lengthy deposition of Professor
25 Steele and had the opportunity to cross examine him on his
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1 report and develop the Plaintiffs' record and there is just no
2 basis to our mind under Rule 32 why those deposition
3 designations should not come in.
4 He's really -- Professor Steele's thought on these
5 questions will assist you. He is a tremendous scholar and a
6 tremendous student of the impact of race on things like test
7 scores and grades, and I just think it would be a terrible
8 thing for the Court to try to approach the resolution of these
9 issues without having the benefit of his work.
10 THE COURT: How about the other two witnesses?
11 MS. MASSIE: I'm sorry?
12 THE COURT: Don't you have --
13 MS. MASSIE: We have several others.
14 THE COURT: I thought there were three all together.
15 MS. MASSIE: No, we have several others, and these
16 are largely -- there were several -- the parties had listed
17 people who had already been called and testified at the trial.
18 We did the same thing. I understand the Court's position is
19 that that is -- that those designations are not coming in as
20 to people who did testify. We had designated some sections of
21 John Hope Franklin's and Faith Smith's depositions, and as the
22 Court's position is that trial -- that the depositions of
23 trial witnesses don't come in, then we accept that.
24 The other people are -- Eric Brooks is the -- was the
25 only black student at Boalt Hall at the UC Berkeley School of
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1 Law the year after affirmative action was limited there.
2 There are several law professors who testified as fact
3 witnesses on the interactions that they had seen in the
4 classroom. There is Ted Shaw, who is on the admissions
5 committee, the '92 committee that came up with the policy, and
6 I think that -- no, one more person, Marlin Whitley, who was a
7 black student at University of Texas School of Law who had
8 testimony to offer the Court about the impact of eliminating
9 affirmative action on his legal education.
10 And those are people, excepting Ted Shaw is in a
11 different kind of category, those are people we would have
12 called, but for the 30-hour limit, and we thought we could
13 expeditiously get their testimony before the Court just by
14 designating sections of their depositions. We told Counsel
15 about it several days ago at the meeting that we had and
16 didn't hear anything from them then on it.
17 MR. PURDY: Briefly, Your Honor, as Counsel says, we
18 had our first discussion about this two days ago when we
19 learned about the Intervenor's interest in designating
20 portions of depositions, and again, we believe that's out of
21 time.
22 Let me address specifically Mr. Shaw. Mr. Shaw was a
23 member of the faculty committee. We didn't -- the University
24 has objected to his designations. We will say that we will
25 not object to Mr. Shaw's designations, and in fact, we will --
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1 if the Court wants to provide Ms. Massie the opportunity to
2 put Mr. Shaw's deposition testimony in, all we would ask is
3 for leave to provide cross designations, and we will be happy
4 to, but the University is who has objected to that.
5 Let me address Mr. Steele specifically -- Dr. Steele,
6 pardon me, Dr. Steele specifically.
7 One of the problems, she does talk about Dr. Steele
8 and how he is an expert in certain areas, and of course, what
9 happened as the Court is well aware, we heard much testimony
10 after the Court's ruling from several other witnesses who then
11 attempted to -- several other experts who attempted to get
12 into Dr. Steele's work quite a bit, but here's the problem,
13 Your Honor: There are several studies since Dr. Steele
14 published his work that go contrary to Dr. Steele's work.
15 There are two studies from Educational Testing Service in
16 1998, both of which do not confirm Dr. Steele's work. There
17 is a study that has just been publicized in the Journal of
18 Blacks and Higher Education in the Autumn volume of 2000, Your
19 Honor. This is not the --
20 THE COURT: The issue, though, is not -- again, it's
21 not substantive, it's not a what he has to say or not to say
22 issue, the issue is whether or not it's permitted under the
23 rules. That's the issue right now. What he has to say, I'm
24 not going to exclude him for what he does or doesn't have to
25 say. I'm going to either accept him because the rules allow
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1 for his acceptance or I'm going to reject him because the
2 rules allow for his rejection.
3 MR. PURDY: We believe the rules would not permit
4 his acceptance, simply because at this time it's too late to
5 be submitting it, Your Honor.
6 THE COURT: If that's the only reason, then the
7 Court will allow both sides to, within the realm of what they
8 have here to designate, and will also allow enough time so
9 that each side can cross designate, if that's the only reason.
10 I can't get into the substance, because that wouldn't be fair.
11 Then I would be ruling on whether his substance is good or bad
12 without ever having read it.
13 MR. PURDY: Fair enough. That's fine.
14 THE COURT: So each side was there to take his
15 deposition, as well as the rest, and each cross designate, and
16 submit it to the Court.
17 MS. MASSIE: Thank you, Judge.
18 MR. PURDY: I'm sorry, did you address the other
19 witnesses?
20 THE COURT: Well, the other witnesses, I did, but
21 I'll listen to any argument. I didn't hear your argument on
22 the other ones.
23 MR. PURDY: The only question about those other
24 witnesses is that we received those, in fact, we just received
25 those designations.
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1 THE COURT: We will give you a chance to cross
2 designate, so you can't -- and just again, you know, just so
3 everybody understands, some of those sound pretty much
4 cumulative, and if they testified, I perhaps wouldn't have let
5 them testify, but cumulative is better than nothing, so.
6 MR. PURDY: We assume that the Court is using the
7 same standard.
8 THE COURT: Exactly the same standard.
9 MR. PURDY: Not ruling on relevance or --
10 THE COURT: Not ruling on relevance, not ruling on
11 hearsay, all those other, and cumulative.
12 MR. PURDY: Yes, sir.
13 MS. MASSIE: Thanks, Judge.
14 THE COURT: Any other outstanding issues on this
15 matter? Everybody understand exactly what's going to happen?
16 We have a meeting of the minds now?
17 We still have one other issue and I'll raise it and
18 we will do that maybe later this afternoon, your motion in
19 terms of the record in terms of the expert reports and so
20 forth, which is sitting right here. Instead of taking the
21 time this morning, let's get our witnesses going and we will
22 have a break or something.
23 MR. PURDY: Okay.
24 THE COURT: We will take about ten minutes and we
25 will start. I have to go give some Grand Jury certificates
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1 out. Today is their last day and I'm in charge of Grand Jury,
2 so I like to see them on the last day, so.
3 (Recess taken at 9:2 a.m.)
4 (Back on the record at 9:4 a.m.)
5 THE COURT: Okay. Your next witness?
6 MS. MASSIE: Professor Rick Lempert, back as an
7 expert.
8 THE COURT: How are you today?
9 THE WITNESS: Good.
10 R I C H A R D L E M P E R T ,
11 Was thereupon called as a witness herein, and after having
12 first been duly sworn to testify to the truth, the whole truth
13 and nothing but the truth, was examined and testified.
14 MS. MASSIE: Before we get started, if I could have
15 marked, and I left you guys copies of this, it's the final
16 copy, the published version of Professor Lempert's report,
17 which was not included in the binder, an earlier version was,
18 as Exhibit 230, and I'll move it in in a moment.
19 THE COURT: And remove the other ones?
20 MS. MASSIE: That's fine. There are two other ones.
21 Now 165, which is the original expert report, which includes a
22 very short version of the article, there is 166, which we have
23 no use for, and now there is 230. So 166, I don't intend to
24 move in at all. 165, I do. It contains the CV and so on.
25 THE COURT: All right.
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1 DIRECT EXAMINATION
2 BY MS. MASSIE:
3 Q We heard a bit about your education when you were here
4 previously, Professor Lempert. Let me just review a couple of
5 things and add a couple things.
6 You have been teaching law for 32 years at the
7 University of Michigan?
8 A Yes.
9 Q And you have been teaching sociology for about 16?
10 A Actually, I was teaching a lot of sociology in the law
11 school, but I have been a member of the Sociology Department
12 for about 16 years.
13 Q You have been -- and you teach the sociology of law,
14 that's your specialty?
15 A I do, yes.
16 Q And that's what you write in?
17 A Among other areas.
18 Q You've received numerous professional honors?
19 A Some.
20 Q A Russell Sage Foundation Fellowship. You were elected
21 Chair of the Sociology of Law Section of the ASA, the American
22 Sociological Association, which is the principal organization
23 for your profession?
24 A Yes, or at least one of them.
25 Q You were a Fellow at the Center for Advanced Studies?
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1 A In the behavioral sciences, yes.
2 Q And you published a study that we're going to be talking
3 about today which was peer reviewed on minority and white grads
4 at the U of M Law School?
5 A Yes, along with two colleagues. David Chambers and Terry
6 Adams and I published the study.
7 Q And it was published in the Journal of Law and Social
8 Inquiry?
9 A Yes.
10 Q Can you tell us what that journal is?
11 A It is a peer review journal. It's the Journal of the
12 American Bar Foundation, and in the field of law and social
13 science, one of the two most prestigious journals, along with
14 the Law Society Review.
15 Q You served on the Law School Admissions Council Committee
16 on Test Development and Research at some point?
17 A At a number of points, actually. I have been on at least
18 for a number of terms and at least two separate occasions,
19 maybe three.
20 Q And in that connection, did you do any work on the bar
21 passage study which LSAT conducted in the early '90's?
22 A Well, I actually was on the committee when we authorized
23 it and spent a lot of time discussing methodology and the
24 goals. Linda Wightman at that point was a staff member to the
25 committee, so I had a number of conversations with Linda about
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1 that particular study and had some minor input in actually
2 questionnaire design, because I got questions as a committee
3 member and made some suggestions.
4 MS. MASSIE: Judge, I would like to offer Professor
5 Lempert as an expert in law and sociology and also offer
6 Exhibit 230, move that into evidence, as well as 165.
7 THE COURT: Any objection?
8 MR. PURDY: No objection.
9 MR. GOLDBLATT: No objection, Your Honor.
10 THE COURT: Received, and he may testify as an
11 expert.
12 MS. MASSIE: Thanks, Judge.
13 BY MS. MASSIE:
14 Q Tell us about your team on this study, if you would.
15 A Well, it's a terrific team. David Chambers is a
16 colleague of mine of long standing, and when we hired him, and
17 he has become an outstanding empirical researcher on legal
18 issues, beginning with a study of what makes fathers pay child
19 support in the State of Michigan. He has gone on in both the
20 area of family law and the legal profession to be, I think, one
21 of the country's leading figures in that area. He has done a
22 number of empirical studies on lawyers, particularly working
23 with data about Michigan graduates.
24 Terry Adams was actually a student in a class I
25 taught many, many years ago, longer than I think either of us
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1 wants to remember, and has advanced work in political science.
2 And he has been working for a number of years, my guess would
3 be close to 20 or so, at the Institute for Social Research,
4 which is perhaps the preeminent survey research organization
5 in the academic world. He has done many things at the center.
6 He has worked very closely with David before we collaborated
7 together. He is an expert in data management, at
8 questionnaire development, at various kinds of analyses, has
9 access, also, to all the staff at ISR when we have questions
10 that we may not know all the answers to and just terrific to
11 work with.
12 Q Tell us what the point of the study was.
13 A The point of the study. The point of the study is that
14 even though law schools have been engaging in affirmative
15 action for about 30 years now, no one had ever really looked at
16 what happens after law school, when people get into practice,
17 and no one had looked at how ethnic status may play out in
18 practice, whether credentials that people were admitted on
19 relate to practice success and the like.
20 Both David and I, and I think David and Terry
21 separately, have had very longstanding interests in this
22 issue. David and I many years ago contemplated some research
23 on the matter and actually applied for a grant, but at that
24 time we didn't get it. It was, I think, too large a grant.
25 And Terry and David have been working with our
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1 alumni study data for many years, and one of the issues that I
2 think has long concerned them has been how the minority
3 students as a subgroup do in law practice.
4 Q So it wasn't this litigation that prompted the
5 undertaking of the study?
6 A We began planning the study about a year before suit was
7 filed in this case.
8 Q What was the study's basic methodology?
9 A It is basically a survey study, a study which in this
10 case didn't draw a sample of our minority graduates, but in
11 fact took the population of minority graduates, that is, every
12 graduate who belonged to actually four minority groups we could
13 identify, Asian Americans, Native Americans, Hispanics and
14 blacks, and then took a stratified sample of white students.
15 It sent them questionnaires with very careful, I
16 mean, two follow-ups with incentives to respond, and then with
17 very careful analysis of our respondents to be sure that the
18 sample we had gotten back was not biased in any way that would
19 call the results of our study into question.
20 The specific methods that were used after the data
21 were entered were standard statistical methods, including a
22 lot of tabular analysis, including ordinary least squares
23 regressions and logistic regression.
24 Also, I think as part of the methods, though not
25 technical methods, there are two things I guess I want to
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1 mention. The first is that when you work with large data sets
2 there can be random error, and if you do lots and lots of
3 exploring of your data you might find that a particular model
4 takes advantage of that random error and gives you the results
5 that you hope to find. We didn't do any ransacking of the
6 data of that sort. Partly, it's -- I just don't believe in
7 that, because I think it does invalidate or potentially
8 invalidate your results.
9 We specified our measures, virtually everything
10 theoretically beforehand, but then we did a lot of sensitivity
11 checking, because the other aspect of our methods which was
12 really a lot of fun in working with David and Terry is that,
13 and we all have the same philosophy, we sort of took it upon
14 ourselves to try to tear down our results to see how robust
15 they were.
16 So we would say, what would happen if you controlled
17 for gender, for example, and so we then did that, and we
18 basically mentioned anything at all that was salient that we
19 found. So we were approaching this, even though by the time
20 we analyzed the data suit had been filed, as social scientists
21 trying to get at the truth and the facts.
22 Q Are you satisfied that you did that?
23 A I'm quite satisfied with the results of this study, that
24 they are a fair analysis of the data, that they are not
25 affected in any significant way by nonresponse, that they take
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1 no advantage of any random error in the data beyond what's
2 revealed by significance tests. So yes, I am.
3 Q Summarize for us -- obviously, we're going to be going
4 into some detail, but if you could summarize for us the
5 findings of the study.
6 A Well, there are actually lots of findings of the study
7 and they range from how people felt about their law school when
8 they were in it by minority status, to what jobs people take
9 and what they have now, to clerkships and bar passage,
10 financial support, and then to effects of various factors on
11 outcomes in practice, but if I had to summarize the core
12 findings, in my mind the most interesting findings, they are
13 two.
14 The first is, that by the measures of success that
15 we were able to develop, and we used three different -- we
16 actually used a number of different measures, but in the
17 regression framework we use three, minority graduates do every
18 bit as well as white graduates when it comes both to their
19 incomes and to their satisfaction with their careers, and in
20 fact, when you have a controlled analysis they do a slight but
21 significantly greater amount of service, of giving back to the
22 profession than our white graduates.
23 The second core finding is that even though LSAT
24 scores and undergraduate grade points, which I'll refer to as
25 hard credentials, or when I want to refer to them together as
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1 index credentials or index scores, that even though the index
2 does predict in a reasonable way to the final law school grade
3 point average, it has zero predictability when it comes to
4 predicting to income, to satisfaction or to service that's
5 done by people.
6 Q Turning to those findings, let me tell you I'm going to
7 take them generally in the order of questions, things you found
8 out about the experience of law school, and then professional
9 paths people take, and then turn to your three indices of
10 success.
11 A Yes.
12 Q The satisfaction, income, and community service. But let
13 me just ask you a general question.
14 Coming out of the United States Supreme Court's
15 decision in Sweatt versus Painter, the original law school
16 desegregation decision, the Supreme Court stressed how much,
17 how many benefits there were to attending a school like the
18 University of Texas Law School, that separate could not be
19 equal in that context.
20 Do you have anything in your study that bears on
21 that question?
22 A Yes, we do. I'll comment. Let me just say one word by
23 way of preface, Your Honor.
24 THE COURT: Sure, please.
25 THE WITNESS: To avoid being tedious, you have in
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1 front of you tables, either my study or separately, that refer
2 to all this. I will simply try to summarize verbally the
3 findings rather than take the Court through them.
4 THE COURT: I appreciate that.
5 THE WITNESS: If there is anything you want me to
6 elaborate on by pointing to a table, I'll be happy to do that.
7 THE COURT: That's great. And I will assume you
8 have all the tables to back this up?
9 THE WITNESS: And if not, I'm sure on cross
10 examination that will come up.
11 THE COURT: They will catch up to you. I appreciate
12 that.
13 THE WITNESS: Yes, the data here are in Table 6 and
14 in three different ways I think we see --
15 THE COURT: You know what, can you stop for one
16 second?
17 (Discussion held off the record at 9:54 a.m.)
18 THE COURT: Before you start --
19 THE WITNESS: This would be a good time, yes.
20 THE COURT: Because I don't want to interrupt, stay
21 where you are. We have got three people that we will just
22 swear in and then we won't have to interrupt you again.
23 (Recess taken at 9:55 a.m.)
24 (Back on the record at 10:07 a.m.)
25 THE COURT: Okay.
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1 MS. MASSIE: You know, Judge Friedman, I have been
2 keeping it under wraps because I thought you might want to try
3 and take it back or something, but you actually swore me in,
4 too.
5 THE COURT: Did I really? I wouldn't want to take
6 it back. As I have always told you, though, though you're
7 feisty in the courtroom, you're a good advocate and that's the
8 bottom line. And I only appreciate good advocates. I don't
9 like people that aren't good advocates, so it's -- no, I have
10 always been. In fact, I'm even more proud now, so go on.
11 BY MS. MASSIE:
12 Q I think you were starting to tell us, but forgive me if I
13 repeat something here, Professor Lempert, I think you were
14 starting to tell us about the material that is in Table 6?
15 A Yes, which bears on this question, and really started law
16 school desegregation, Sweatt versus Painter.
17 Q Tell us a little bit about that.
18 A Yes. Let me say this: We asked people a number of
19 questions on a scale of one to seven where seven meant a great
20 deal and one meant none about, oh, a whole host of values and
21 other issues, and we basically take scores of five, six or
22 seven to mean that this is a really important and considerable
23 thing, but a lot of people answered below that, which means
24 there is something going on.
25 But let me just talk about those who said that
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1 attending Michigan, for various ways, was of considerable
2 importance to their career in the ways the Supreme Court
3 contemplated attending a leading law school would be.
4 For minority students, between about 25 and 30
5 percent, depending upon the year of minority students, and
6 when I say minority, I mean the three groups that I talked
7 about last time that the committee contemplated as looking at
8 diversity, the Native Americans, Hispanics and the black
9 students, said that friends made at Michigan were important to
10 their subsequent career and success.
11 About 20 percent, just a little bit under, said the
12 contacts made through Michigan, and these could be contacts
13 not just with fellow students, but after they graduated, the
14 kind of old boy, old girl network, hey, we went to the same
15 school, isn't that great, were important to career success.
16 And about 85 percent said that the prestige of the
17 school, just kind of the doors that it opened, were of
18 considerable importance to their career success.
19 And in many of these cases, indeed, for all these
20 cases for our first two decades of alumni, those that had been
21 out the longest, those that graduated in the 1970's and
22 1980's, there was a statistically significant difference, or
23 in one case a marginally significant difference, between our
24 white students and our minorities, such that being able to go
25 to Michigan was perceived by the minorities as more important
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1 to their career success than it was to white students.
2 Q And why would that be?
3 A Well, I think it's because they don't have the same kind
4 of contacts. I mean, just to give a very simple example, it's
5 my understanding that a much higher percentage of our white
6 students than minorities are children of lawyers, so they
7 already have built-in access to networks. Minorities meet
8 lawyers by coming to Michigan, get access to them. Also, to
9 the extent there is discrimination, having this tie can help
10 break down discrimination in the world of practice.
11 Q Did your study make any findings about the quality of the
12 law school experience itself?
13 A Yes. We do look at the quality of the law school
14 experience. That's not one of the tables that has been sort of
15 designated or added, but let me just call your attention to
16 Table 3 in the report. We asked --
17 THE COURT: What page are you on?
18 THE WITNESS: I'm on page 409. We asked people how
19 satisfied they are with aspects of law school experience, and
20 we find general satisfaction with law school, particularly
21 intellectual and career training and overall. The one area
22 where it is sort of mixed in terms of what I would call
23 considerable satisfaction is in the social life, and we
24 basically see no differences between minorities and whites on
25 that.
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1 There is -- in 1970 intellectual satisfaction,
2 the results are similar, 82 versus 89 percent of whites,
3 that's statistically significant, but basically nothing--
4 everybody tends to be satisfied. And then the one I find most
5 interesting is we asked about the value of the classroom
6 experience, and I don't think any of the lawyers in this room
7 would be surprised that the one thing that was least valued
8 was being called upon in class. But other things, the faculty
9 as teachers, thank goodness, and as scholars, as well quite
10 importantly as classmates' abilities were also valued by a
11 majority, a good majority of the students.
12 Q What does your study have to say about financial aid and
13 race?
14 A Financial aid, Table 7 shows those results, and what we
15 show, a couple of things jump out at you.
16 One thing that jumps out at you is simply the sheer
17 amount of debt which students take on at a school like
18 Michigan. If you have debt, minorities owe on the average
19 $67,600 in the most recent cohort when they graduate; whites,
20 $52,600.
21 The other thing which I think jumps out at you from
22 Table 7 is, contrary to at least some suggestions I have
23 heard, minorities are not being treated, if you will, getting
24 free rides at the expense of whites. Quite to the contrary, a
25 much higher proportion of minorities, 96 percent of those who
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1 graduated in the 1990's have some debt, as opposed to just 71
2 percent of whites, and the burden when they get out as a
3 percentage of their first jobs is much larger.
4 So we have a lot of debt and in every decade more
5 minorities leave law school with educational debts and they
6 leave law school with higher educational debts and with debts
7 that require them to pay higher proportion of their first year
8 incomes.
9 Q Looking at the table here it looks like it's about twice
10 the proportion, about 15 percent of first year income for
11 minority grads goes to debt and about 8 percent for white
12 grads?
13 A That is in the 1990's, yes. That's true in the 1990's.
14 Q How do you explain all those differences in financial aid
15 and debt burden that you just talked about?
16 A Well, debt to a large extent is a matter of need and our
17 minorities generally speaking come from less affluent
18 backgrounds than our white students do.
19 Q How about bar passage, what does your study have to say
20 about bar passage?
21 A Our study finds that Michigan, just not to put too fine a
22 point on it, Michigan graduates pass the bar. It doesn't
23 matter, really, whether you're a minority or whether you're
24 white. In one decade, in the 1980's, I'm not going to bother
25 to look at the table, but I think there might have been a
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1 statistically significant difference favoring whites, but it
2 was substantively sort of completely trivial. It was like 95
3 percent of minorities and 98 or something or 99 percent of
4 whites.
5 Q And did you study -- did your study have any way of
6 knowing whether all the people in the sample had even tried to
7 take the bar?
8 A We don't know that. What we do know is that if you look
9 at those who have not passed the bar, and I have some
10 colleagues, actually, who have not, and indeed for many years I
11 didn't take the bar after I graduated and finally did, but we
12 know that the people or minorities who list themselves as not
13 having passed the bar are actually more satisfied with their
14 careers. I don't think it's statistically significant, but it
15 means there is absolutely no difference or it favors them
16 rather than our minorities who did pass the bar. Maybe they
17 are making big bucks in business or they are teaching or doing
18 other high satisfaction occupations, but they are just a
19 trivial number.
20 Q I want to ask you some questions now about career paths
21 and trajectories and let's start with first jobs. What did
22 your study find about first jobs, including clerkships?
23 A Including clerkships, first of all, this was actually an
24 interesting finding that surprised me a bit. We found that
25 over the years a very increasing and what I think is quite
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1 almost an astonishing large number of our graduates take first
2 positions in judicial clerkships. Looking at the 1990's, 18
3 percent of our minorities and 23 percent of our whites or
4 almost 24 percent of our whites move from law school into
5 judicial clerkships. That is not a statistically significant
6 difference. We can't say as a matter of statistics that our
7 white students are more likely to get clerkships than our
8 minorities, it's within the realm of statistical error.
9 The figures are less for the preceding decades and
10 the earlier decades has marginal significance. You put them
11 together, probably would be a slightly greater tendency of
12 whites than minorities to move into judicial clerkships, but
13 it seems to have closed and increased for both groups
14 substantially in the 1990's.
15 Q And it's a fairly substantial percentage?
16 A I think it's sort of a huge percentage when you consider
17 how selective these are and how difficult they can be to get
18 them.
19 Q Tell us about other first jobs.
20 A First jobs, this is Table 10. In every decade, the most
21 common first job for our students, whether they are white or
22 minority, is the private practice of law, however, the
23 proportion of minorities going into the private practice of law
24 as a first job leaps substantially between the 1970's and the
25 two later cohorts, the 1980's and the 1990's.
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1 Whites do tend, in all decades, to be more likely to
2 go into the private practice of law than minorities.
3 Minorities, on the other hand, in all decades are much more
4 likely to go into Government.
5 And in the 1970's, in particular, to a lesser extent
6 in the 1980's, but not in the 1990's, were more likely to take
7 first jobs in legal service or public interest areas.
8 The other thing I should point out, both our white
9 and minority graduates take all kinds of jobs. They serve
10 their profession, they serve people in many, many different
11 ways.
12 Q And how do those job selections shift over time? Do
13 people shift sectors in ways that are comparable across race or
14 how does that work?
15 A The patterns are reasonably similar. If you look at
16 Table 12, which was current jobs, we do have some tables that
17 go into sort of technical shifts, but I think I won't mention
18 them, we can capture this just by comparing Table 12 and Table
19 10.
20 With one exception, there is a strong movement from
21 the private practice of law to other sectors, and surprisingly
22 strong even among the 1990's graduates who haven't been out
23 that long, the movement tends to be to Government and to
24 business. There was substantial movement away from legal
25 service or public interest law by the 1990's alumni, and the
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1 19 -- I'm sorry, the 1970's alumni, and the 1970's alumni were
2 the only group, the minority alumni, I'm sorry, the minority
3 1970's alumni, were the only group that actually shows a net
4 move into the private practice of law.
5 Q And how do you explain that?
6 A I think there were hurdles to getting private practice
7 jobs that existed for our 1970's alumni which do not exist or
8 exist only to a lesser extent today.
9 I mean, just to give one very simple example, there
10 were many firms throughout the south that would not consider a
11 black lawyer, you know, in 1970 or 1971 or '72 and those firms
12 are open to blacks now, I think in part because schools like
13 Michigan have been turning out such high quality minority
14 alumni.
15 Q So a school like the U of M has a role in integrating the
16 profession overall?
17 A I think we have had a -- you know, not us personally, but
18 I think the law schools, through affirmative action, and not
19 just Michigan, but I think lots of other schools, Wayne,
20 Detroit, you know, U of D, I think all of these schools have
21 had a role of integrating the profession at all levels.
22 Q Is one --
23 A And one they would not have had, at least not nearly to
24 the same degree, but for affirmative action.
25 Q In fact, to summarize some of the professional trajectory
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1 findings that you made, it sounds like minority and white
2 graduates were very successful across a range of practice, of
3 law practices?
4 A By our ability to measure success, which includes such
5 things as partnership, promotion, whether you're a managing
6 partner or a managing supervisor in the Government or in
7 business, a General Counsel's office, whether you do certain
8 kinds of service, whether you're satisfied with various aspects
9 of your career, how much you earn, two things can be said, I
10 believe.
11 One is that Michigan graduates tend to be quite
12 successful whether they are white or minority; and the second
13 thing is, there is really no substantial differences in the
14 success of whites and minorities.
15 Q In the different sectors of law practice?
16 A Yes. If we can look -- let me just call your attention
17 to a couple of tables that will illustrate this very quickly.
18 If you look at Table 15 on 432, you see the
19 percentage of minorities and whites who are partners if they
20 are members of firms. Basically, they are the same and they
21 are very high. Almost everybody in the 1970's, and 70 to 80
22 percent in the 1980's, and actually more minorities are
23 partners already of the 1990's graduates.
24 And these differences, I should note, to the extent
25 they do exist, disappear with a simple control for time. They
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1 are a result of the fact that minority enrollment has been
2 increasing, so minorities particularly in the 1980's have been
3 out less, and when we gave our questionnaire we had more
4 minorities on the cusp of partnership decisions than we had
5 whites.
6 And then if you look at Table 13 on page 430, this
7 looks at lawyers who are not in private practice and whether
8 they are engaged in supervising or managerial positions. You
9 see if they have been out a long time, almost two-thirds are.
10 It goes down. The only significant difference in either the
11 partnership or the supervising attorney tables is this 1990's,
12 where almost an astonishing 14 percent of the minorities and
13 none of the white graduates have already been promoted to a
14 managerial or supervising position.
15 Now, although that is statistically significant, to
16 be candid, I wouldn't make anything of it. I think in a few
17 years the whites will catch up and probably disappear.
18 Sometimes you get results, but still, while I wouldn't make
19 anything of a difference between whites and minorities, I do
20 make something of it of the success of minorities who are
21 graduating and have graduated from Michigan in recent years.
22 Q I want to ask you some questions now about the kinds of
23 clients, the different sectors of the community who are served
24 by alumni of the U of M.
25 A Yes.
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1 Q Are there differences by race that you should tell us
2 about?
3 A Some differences in terms of sort of the kind of clients.
4 Substantial differences in terms of the ethnicity of clients.
5 Let me review for you --
6 Q Please.
7 A -- quickly the tables that bear on that. Table 17 gives
8 the proportion of time private practitioners devote to types of
9 clients by minority status and graduation decade.
10 Again, what leaps out at you is that our alumni
11 serve all types of clients. They serve rich individuals and
12 low income individuals. They serve Fortune 500 companies,
13 small businesses. They serve Government, they serve
14 nonprofits, and they serve people in between.
15 And I think the most salient feature of the table is
16 really just the range that our alumni, and in terms of range,
17 our minority alumni, cross the spectrum, as do our white
18 alumni. There is a tendency, particularly in the earlier
19 cohorts, for minority alumni to be more likely than whites to
20 serve middle and low income individuals and for whites to be
21 more likely than minorities to serve medium sized and small
22 businesses. Those tendencies diminish substantially or
23 disappear in the 1990's cohort.
24 So there I don't think -- I think the better sort of
25 the view is, you know, minorities and whites are both serving
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1 a wide range, slight differences, a little bit more individual
2 service, particularly to those who are not wealthy, by
3 minorities, a little bit more small business service by
4 whites, but, you know, not too much going on.
5 Where there is a surprising amount going on, and
6 maybe if you're a committed integrationist as I am, even a
7 little disappointing, is the extent to which the practice of
8 law still is structured by race; that if you look at Tables 18
9 and 19, which deal respectively with the proportion of clients
10 who belong to different minority and ethnic groups, among
11 individual clients, among attorneys who spend 20 percent or
12 more of their time in the individual practice and the
13 principal contacts among corporations, among attorneys who
14 spend at least 20 percent of their time serving corporate
15 clients, you see this very strong same-race effect; that 53
16 percent, for example, of the individual clients whom blacks
17 serve are black, compared to 13.6 percent of the clients whom
18 whites serve and it's a very, very strongly statistically
19 significant difference.
20 The same thing, though, with lesser numbers, when
21 you look at Latinos.
22 Native Americans there just happen to be too few
23 here, but clearly there is a huge difference, too few for
24 statistical significance, but it's 10.9 percent versus .3
25 percent by whites.
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1 And here we broke down Asians separately, and some
2 people may think, well, Asians are just like whites. They may
3 be in some ways, indeed it's one of the reasons we didn't look
4 at them separately in other areas, but they are not when it
5 comes to the racial structuration or the ethnic structuration
6 of law practice. So 31.5 percent of their individual clients
7 are Asian compared to 2.4 percent of the clients of whites.
8 And we see the exact same thing when we look at principal
9 organizational contacts.
10 Q That's not in the handout?
11 A That's not in the handout. Well, I won't even show you,
12 but I can tell you, though the numbers are smaller, the
13 relationships if anything are stronger, because they are
14 smaller across the board. If you took this as proportions and
15 relations, how many times likely a minority is to have a
16 principal organizational contact who is same race or ethnicity,
17 you find the proportion is even greater than the proportion
18 with individuals.
19 So there is this really substantial and important
20 difference when it comes to delivering of those services, and
21 I think it does suggest, though it certainly doesn't show or
22 prove that, you know, one of the results of schools like
23 Michigan graduating many minority lawyers is that the minority
24 communities are more likely and better served, though it
25 doesn't prove that.
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1 MS. MASSIE: Judge, I apologize, could we take a
2 true five-minute break? I should have dashed out when the
3 Attorney General was in here.
4 THE COURT: Of course. I'm not going to get off the
5 bench, just everyone stand, go on. If I get up, it can't be a
6 true five-minute break. Take your time. It's not to
7 embarrass you, I just know if I get back there, it's a crazy
8 day and I'll get stuck.
9 THE WITNESS: I need a little break, too, for the
10 same purpose.
11 THE COURT: We will take a real five minutes. I'll
12 have my secretary yell at me.
13 COURT CLERK: All rise.
14 (Recess taken at 10:31 a.m.)
15 (Back on the record at 10:43 a.m.)
16 COURT CLERK: All rise.
17 THE COURT: Professor?
18 MS. MASSIE: Thanks, Judge.
19 THE COURT: No problem.
20 BY MS. MASSIE:
21 Q Let's turn away now from the kind of career paths that
22 people take and who they serve and ask you about the basic
23 success findings in your study.
24 A Yes.
25 Q How did you try to measure the success of U of M alumni?
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1 A Well, first of all, I just want to emphasize that a
2 number of our -- I want to emphasize that a number of our
3 career findings are success measures, things like promotion to
4 partnership, managerial responsibility, and the like.
5 In a certain sense they may be even the most
6 important measures of success, but we did try explicitly to
7 measure success and we were aware there is no one measure of
8 it, there is no one definition of success, so we constructed
9 three different measures of success.
10 One has to do with self-reported satisfaction, are
11 people happy with their careers. And we looked at that along
12 a number of dimensions. And we created an index for
13 statistical analysis, for regression analysis to look at that.
14 We looked at the incomes that people earned, because
15 that's probably the most common measure of success.
16 And we looked at a measure which I call a measure of
17 success, but it's I think special to the legal profession, and
18 this is what I call service or giving back to the community.
19 I think lawyers are supposed to, as part -- if they are
20 professionals, they are supposed to serve the community, and I
21 think it really is a kind of success to be involved at that
22 level in service, so we looked at service and again created an
23 index for statistical purposes.
24 To actually measure it we did just two, because it's
25 clearer. We did a number of tables that reveal these
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1 relationships, but we also were concerned that perhaps
2 particularly with these measures tables could be misleading,
3 because sometimes one factor can disguise or condition an
4 effect. So to deal with that we used regression analysis to
5 see whether these success measures and whether the
6 relationships the tables suggested pertained once one
7 controlled for other variables.
8 Q Let me take you back a second. You said one factor can
9 -- I think you said, disguise, you used another word.
10 A Yeah, disguise.
11 Q What do you mean?
12 A Let me give you an example. Suppose that success is
13 strongly related, let us say, to -- oh, say income success is
14 strongly related to whether you work in the private practice of
15 law, because private practitioners generally earn more than
16 others, and suppose we were looking at gender, whether being a
17 woman or man is related to income success. We might find that
18 it looks like women are not as successful as men, because they
19 would earn less, but if we controlled for whether or not they
20 practice privately, we might find that women in private
21 practice do as well as men do and women in Government do as
22 well as men do, it's just that more women chose to go into
23 Government.
24 And the same with minority status, and it could be
25 the other type of relationship, too. It could be that you
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1 think you don't have a relationship, and then when you control
2 for another variable, in fact, you really do have a
3 relationship. So it could be that if we didn't control, it
4 might appear there is no difference in the success of our
5 minorities and our whites, but if we controlled for relevant
6 variables there would be.
7 Q And how do you do that controlling, if you can put that
8 very straightforward?
9 A Without trying to being statistical, you do it in a
10 regression analysis framework, and basically what that does, it
11 says holding all these other things constant, if people were
12 identical on everything else we measured, would there be a
13 difference on the key variable we're now looking at. And you
14 look at these variables in turn. And we looked at things like
15 how long they have been out of law school, at what their gender
16 was, what their age was when they started law school, what
17 their ethnicity was, at what their law school grade point was,
18 how they practiced, and the like. And I'll refer to some
19 results of those analyses later, I assume.
20 Q With that background, if you could first take us through
21 the first level of findings, the tables on satisfaction, income
22 and the different kinds of service that your study --
23 A Let me just very quickly --
24 THE COURT: Which chart?
25 THE WITNESS: This is Table 21, which is in your
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1 list to begin with, and we will look at the subsequent tables.
2 THE COURT: Got it. Thank you.
3 THE WITNESS: When you look at Table 21, again, the
4 things that are most striking are, number one, the generally
5 high rate of satisfaction with career.
6 Again, these are people who give ratings of five, six or seven
7 on a scale, so they are people who have mixed feelings, say
8 threes and fours, who would further increase these numbers,
9 but the ratings are really quite high, mainly in the 70 and 80
10 percent, generally speaking. They are somewhat less in
11 business and private practice for minorities in the 1990's.
12 The other thing that leaps out is that people in Government
13 tend to be happier than people in other areas and that there
14 aren't many statistically significant differences. There are
15 none in private practice, none in Government. The only one
16 that's clearly significant is for the 1970's minority
17 graduates in business, there is a marginally significant
18 rating in difference in 1990's, but there are too few blacks
19 -- too few whites in businesses to make much of that.
20 When we look at income on Table 24, means and medians, we see
21 that our minorities and all our alumni tend to be very high
22 earners. Again, though there are some differences that appear
23 from the table, almost none is statistically significant. So
24 the table itself suggests that earnings are the same for
25 whites and minorities, but to the extent there are
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1 differences, they basically wash out almost completely when
2 one just controls for the time people have been out of law
3 school.
4 If I can anticipate the regressions, by far the most important
5 contributor to a good income is just experience, just time out
6 of law school.
7 Q But didn't you -- since you're doing it by decade, isn't
8 that already part of the model?
9 A Yes. Decade -- well, no, it's not part of the model,
10 because we're looking separately at decades, and because within
11 decades, again, particularly within the 1980's, which is the
12 one statistically significant relationship for all alumni and
13 income where whites seemed to earn more, there is a much
14 greater concentration of minorities in 1988 and '89, I think
15 about a little bit over a third of the minorities, whereas only
16 as I recall a quarter of the whites graduated in those years,
17 and those are particularly important years for earnings,
18 because as I say, those are the cusp years for promotion to
19 partner for people in private practice.
20 So just because they have been out longer, higher
21 proportion of whites in that decade would be partners, and
22 when you control for time within that decade, the relationship
23 between income and minority status disappears.
24 Q So in other words, in the -- for the 1980's, the white
25 alums are on average older and out longer, or let's leave aside
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1 older, they are out longer than the minority alums?
2 A Probably older, too, but they have certainly been out a
3 little bit longer, but enough longer to have that effect show
4 up, I think.
5 Q To have the earnings effect, the greater earning effects
6 show up?
7 A Right, right.
8 Q Tell us about the services measures.
9 A Well, service, we looked at service in a number of
10 different ways and there are many things that attorneys do.
11 For example, in Table 25, we looked at mentoring, and mentoring
12 of younger attorneys. Again, and I think, you know, to me as a
13 Michigan teacher, this is a point of real pride in our law
14 school, is that we see that our attorneys do a lot of
15 mentoring, upwards of 80, sometimes from among minority alumni,
16 1970's, almost 90 percent of our alumni mentor one or more
17 people in private practice, and even not in private practice,
18 the figures range from 60 to really 89 percent. So there is a
19 lot that is going on here.
20 Minorities seem the most -- if you just count the
21 numbers -- to do somewhat more mentoring than whites, but
22 nothing is statistically -- or little is statistically
23 significantly different there.
24 When it comes to community involvement, on Table 26,
25 again, a lot of community involvement. As you suppose, it
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1 tends to increase with time out of law school. Here there
2 really are, I think, some statistically significant
3 differences in terms of service on at least one non-profit
4 board.
5 Minorities in 1970's and 1980's do statistically
6 more than those alumni of the 1990's, and though it's not
7 statistically significant in the 1990's, there is a ten
8 percent difference. And they also tend to be more involved in
9 electoral or nonelectoral politics, so it's only significant
10 for the 1970's.
11 Pro bono, given what reports say about the average
12 hours of pro bono, Michigan alumni, white or minority, seem to
13 do considerably more than the average, though I expect not the
14 lawyers in this room.
15 And again, the differences where they are
16 statistically significant favor minorities, minorities whether
17 in private practice or not in private practice, where there is
18 a statistically or marginally significant difference do more
19 hours of pro bono work than whites do. So that's the basic
20 tabular analysis of the variables that ultimately go into our
21 service index.
22 I can talk about the regression results now, if you
23 would like, or --
24 Q That would be great, but I was just going to say, did you
25 try and determine whether LSAT scores and/or undergraduate
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1 grade point averages predicted self-reported success, which is
2 to say, satisfaction, predicted income or predicted service?
3 A Yeah, that's probably good to cover that before I just
4 mention regression results.
5 Here, Your Honor, there are some figures I hope you
6 have.
7 THE COURT: Tell me where they are.
8 THE WITNESS: This should be a separate table.
9 THE COURT: I have it now.
10 THE WITNESS: Okay. You have it now. This is
11 really by their relations, but it -- and it shows pretty much
12 what the regressions will show, and I'll emphasize a couple
13 points. Along the horizontal axis going from left to right is
14 an index score we created, which is basically a linear
15 combination of the LSAT score and the undergraduate grade
16 point average. The open circles represent whites, the closed
17 triangles represent minorities.
18 If you look along that dimension -- and the two lines, I should
19 note, are the median breaks -- you see that to the right of
20 the line are mainly whites.
21 BY MS. MASSIE:
22 Q Excuse me for interrupting, Professor Lempert. You said
23 they are the median breaks. Explain what that means, please.
24 A Oh, I'm sorry. That the very high vertical line here is
25 basically the percent of house -- of U.S. household incomes,
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1 what percentage are alumni, and this is a very conservative
2 measure, because it's their personal incomes taken as a percent
3 of U.S. household incomes. We use this for statistical
4 reasons, but instead of log income we use a regression, because
5 it has this very nice intuitive explanation. You can see
6 there, I think it's about the top two percent or three percent
7 or something of all U.S. Household incomes is the median for
8 Michigan graduates.
9 And then the vertical solid line is simply the
10 median index score. If you started from the lowest ranking
11 person or sample, their index score, you counted up to the
12 highest ranking, you took the middle person, that would be
13 that person's index score.
14 Q If the index were predicting income, what would this
15 figure look like?
16 A What you should have if index were predicting income
17 would be a scatter, which would go from the lower left-hand to
18 the upper right-hand corner in the shape of a really thick
19 cigar, but here you have something completely different. Here
20 there is a strong predominance of open circles, that is,
21 whites, to the right of the median, meaning they have higher
22 index scores, with our minorities to the left, but as you can
23 see, there is virtually no relationship, you can't find a
24 relationship if you look up and down vertically. It doesn't
25 matter what your index score is, in other words, in terms of
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1 where you are vis-a-vis U.S. household income.
2 And if you go to figures two and three, you see this
3 for the other decades, the median income becomes lower,
4 because the shorter you have been out, the less you're
5 earning, but again, if you can find any pattern that's
6 associated, you're a better person than I am.
7 Same thing when you look at figures four, five and
8 six, which relate to satisfaction. Here --
9 Q Tell us about -- sorry, go ahead.
10 A We created a satisfaction index that combines all our
11 satisfaction measures. We break that at the median and we
12 still have our index score broken at the median.
13 Again, this is exactly the same pattern on the left
14 to right in terms of the proportion of minorities and the
15 proportion of whites above and below, but again, when you look
16 at satisfaction, it's measuring the vertical axis, it doesn't
17 help you to know where they are. You have some people who are
18 very low or very unsatisfied. I mean, if you look, I mean,
19 for example, at our very highest, among the very highest
20 satisfied people are three who have among the very lowest
21 index scores and two of the very lowest there. That's for
22 minorities. And for whites you have people who are relatively
23 low despite high index scores and some of the least satisfied
24 whites have relatively, you know, high index scores, certainly
25 above the median. And you look at the other decades, exactly
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1 the same picture.
2 If you look at service, again, an index that sort of
3 adds together the different things, you find something that is
4 quite similar, though actually here there does seem to be
5 perhaps a slight tilt the other direction, suggesting maybe
6 there is a very slight negative relationship between the index
7 scores and service done, but this is only a bivariant
8 relationship and I wouldn't make a big issue of that.
9 Again, so I think this nicely illustrates
10 graphically this core finding, that within the people we
11 admit, within that population, how well people do on the LSAT
12 and undergraduate grade point and on those combined has
13 nothing to do with grade point average.
14 And now, let me summarize the regressions for you.
15 Q Please do.
16 A If I may. Now, I'll be quick unless you want me to go
17 into them. We don't have a table.
18 Q The reason for the regressions being you wanted to make
19 sure that there wasn't a predictive relationship between LSAT
20 scores and undergrad grades that was being disguised by some
21 other factor in the way that you were explaining before?
22 A And minority status, and also we were very curious, what
23 is it that explains these phenomenon. And basically, the
24 contributions of minority status and LSAT were minuscule with
25 all our measures, except minorities tended to do somewhat more,
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1 but not a great amount more, service. I think it predicted
2 about two percent of the variants or something in service.
3 THE COURT: They confirmed your --
4 THE WITNESS: Yes. And if you just wanted to get a
5 flavor for that, the best way to get that flavor, I think, is
6 actually from some tables we did that look at changes in
7 R-squared. Just for example, look at Table 32, which is on
8 page -- where is that? Prize to whoever finds Table 32.
9 Here it is, page 479. We look at the change in R-squared, in
10 other words, how much explained variance does adding these
11 different variables add. By far the most important is, and
12 this is for income, by far the most important variable is
13 simply how far you have been out, how long you have been out
14 since graduation. It explains, I think, more than half of
15 what we can explain, 16.6 percent.
16 The regression itself, this includes both how long you have
17 been out and how long you have been out squared, and they are
18 both significant, and what the squared variable means is that
19 even though you earn more for every year you have been out,
20 the increment from each additional year of experience is
21 diminishing. So your first year of experience is more
22 valuable than your fiftieth year of experience.
23 When you look at gender and age, that's statistically
24 significant, primarily because of gender, but it only explains
25 about two percent of the variance.
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1 When you look at minority status, it's completely
2 insignificant, explains one-tenth of one percent of the
3 variance, basically nothing.
4 Exactly the same thing for the LSAT/GPA index, two-tenths of
5 the variance, basically nothing.
6 You go back and you look at jobs by grades, law school grades
7 do matter, they explain close to 5 percent of the variance.
8 They leave a lot unexplained, but they do matter.
9 And when you look at job sector, you find job sector matters,
10 and if you look at the regressions you would see it matters
11 with people in either private practice or business and
12 finance, they earn more than people in all other areas of
13 practice.
14 And I won't bother, unless you want, to take you through the
15 other tables that do this, but you see --
16 THE COURT: The results are the same?
17 THE WITNESS: Except for Table 36 on page --
18 THE COURT: 489. I just happened to flip to it.
19 THE WITNESS: Terrific. And the one difference
20 there is minority status, which is significant, explains 2.9
21 percent of the variance, because when you control for other
22 variables, minorities do more service than whites.
23 There are a few other things these regressions do which I
24 should note. One is that they look at the entire sample.
25 They don't break them down. They take advantage of all the
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1 data that we have in our study, and to the extent that there
2 may be any concern that by breaking our sample to decades and
3 reducing the numbers, we reduce the chance of finding
4 statistical significance, these look at everything.
5 The other thing which they do, very quickly, is that we use
6 models. We have been talking about minority status, because
7 that what's the program is about, but we also did a check to
8 see whether your specific minority membership matters and we
9 looked in some of our models separately at blacks, Hispanics,
10 Native Americans, Asians, and whites.
11 And we looked at the differences between those four minority
12 groups and whites, and we find that with respect to income and
13 with respect to service, combining makes no difference, that
14 there is no statistically significant difference. Even if you
15 look separately at blacks or separately at Hispanics, they do
16 as much.
17 When you look at service, you find that the tendency of
18 minorities to do more service than whites is largely explained
19 by the tendency of black alumni to do more service. Native
20 Americans, in fact, do more service, but the numbers are so
21 small there, even though statistically significant, I would
22 not make much of that.
23 Q And that was true for Native Americans generally in the
24 study, as I recall; is that --
25 A That's all Native Americans in the study, yes.
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1 Q On that LSAT, by the way, Professor Lempert, the American
2 Bar Association requires use of the LSAT in admissions to law
3 school in its standards on the approval of -- for the approval
4 of law schools; correct?
5 A That is my recollection, yes.
6 Q Put simply, there were no differences in success on any
7 of your success measures, income related, satisfaction related,
8 public service related, between minority and white grads in the
9 study?
10 A Except a very small difference in that minorities did
11 more service, but I would -- you know, I think it's fair to
12 say, basically no differences.
13 Q And success was not predicted by LSAT scores and grades
14 even after you did regression analyses to check your results?
15 A Nothing we did predicted success. And there are some
16 things I should note, variables are included here, because they
17 didn't predict at the beginning, like the interaction of gender
18 and race was a variable that we looked at.
19 I forget. Quality of undergraduate school was a
20 variable we looked at. So we looked at more of -- we only
21 presented the ones that either were significant, or one had
22 strong theoretical interest in or reason to expect. So the
23 model is actually more complete than what's presented in the
24 table. If you read the footnotes of the study, you'll see
25 that, and beyond that, we then looked at some other things
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1 just to check, and nothing mattered.
2 Q Now, if there hadn't been an affirmative action plan at
3 the U of M Law School in the decades studied, my understanding
4 is that most of the minority grads in this study would not have
5 been admitted?
6 A That's correct.
7 Q So the contributions they have made in various ways would
8 not have been made in the same way?
9 A I think that's safe to say. I think some proportion, but
10 maybe -- certainly there is a small proportion might have been
11 admitted at other schools if they had affirmative action
12 programs of their own; a very small proportion if they didn't.
13 But then even among those people when they
14 graduated, to the extent that being at Michigan has added
15 value, we talked at the start about the Sweatt versus Painter
16 issue, they probably would have been less likely to make some
17 of those contributions. They might have made some others, but
18 I think for the most part these contributions aren't likely to
19 have been made to the same degree.
20 Q Why do you say only a small proportion of the minority
21 grads would have gone to other schools? Why wouldn't they have
22 just simply gone to a less selective schools?
23 A Well, you know, some people suggest there could be a
24 cascading phenomenon if Michigan did not -- if schools like
25 Michigan did not have affirmative action. That really
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1 misstates the reality of the situation.
2 It is true that some schools are less selective than
3 other schools, and it is true that some of the minorities whom
4 we admit, and let us just say for argument's sake we would not
5 admit if race were not one of the factors that we weighed in
6 considering minority admissions, might get in or would get in
7 to some other schools, but first of all, the proportion would
8 be much smaller.
9 Linda Wightman, the study that I helped, you know,
10 think about generating, has done by far the best work on this
11 particular topic and she finds -- let me see if I can recall
12 correctly --that fewer than 50 percent of the minorities
13 admitted in the 1990-91 applicant class year would have been
14 admitted at any law school in the United States had admissions
15 been based solely on undergraduate grade point average and
16 LSAT.
17 That is, I think something like only 33.4 percent of
18 admittees to law schools, if I recall the figures, would have
19 been minorities, but beyond that, that is a high estimate and
20 a very high estimate of the number of minorities who would
21 have gone to law school for several reasons.
22 One reason is, or a major reason is, that you still
23 have the debt that minorities can incur. Now, Michigan is a
24 high tuition school for many, but there are an awful lot of
25 schools of all kinds that are very high tuition schools and
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1 most of them do not have the resources to support fellowship
2 aids to make the debt even manageable, which Michigan and
3 schools like Michigan have.
4 Secondly, people don't select, you know, law schools
5 at random. Somebody who lives in Michigan, maybe has a family
6 here, they might have been admitted to some school in
7 California, but they are not going to go to California to go
8 to law school. So those people would not be going to law
9 school even if they might have gotten admitted into some law
10 school.
11 Wightman finds that only 10 percent, I believe, or I
12 think it's about 20 percent of those admitted, but only like a
13 fifth of the students admitted to law school would have been
14 admitted to any one of the law schools they applied to had
15 there been no affirmative action. In other words, had
16 admissions -- and by that I mean had there been an admissions
17 system that relied entirely on LSAT and undergraduate grade
18 point.
19 So to the extent that going to one of the law
20 schools you choose you want to go to matters, and if you can't
21 get into one of the law schools you want to go to, you may not
22 go to law school, the effect would have been devastating in
23 terms of representation. So the kind of success, the kind of
24 contributions that are being made, in my view, would not have
25 been made to anything like the same degree, but for our
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1 affirmative action program, and the affirmative action
2 programs of schools of all kinds that are like it.
3 Q And most law schools that are at all selective, which is
4 to say that have at all more applicants than spots in the first
5 year class, have affirmative action plans?
6 A I think if you look at any of -- I mean, I can't say,
7 there may be a few exceptions, but if you looked at the
8 overwhelming number of law schools, you would find, if you did
9 studies like the studies that the Plaintiffs did, which I in
10 fact don't think speak to the extent of affirmative action, but
11 I think you would find that the odds ratios show much the same
12 thing that they show in the case of the University of Michigan.
13 And I'm sure a careful study, if you just looked at
14 average, rather than do -- well, I won't disparage that, you
15 have had expert testimony from people that have more expertise
16 than I, but if you simply just looked at average LSAT scores
17 of people admitted to law schools at varying levels, say in
18 the U.S. News hierarchy or what have you, you would find that
19 minorities were often substantially lower in their average
20 test scores than whites.
21 Q And if I understand what you're saying now and what you
22 were saying a few minutes ago, in effect, in legal education
23 when you talk about cascading, what you're talking about is
24 black and Latino students cascading out of the system of legal
25 education all together?
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1 A Yes. And there is another irony there, too. To the
2 extent they cascade down, and they would, that by far the
3 largest group, single group, if you divide law schools as white
4 and then this sort of six clusters and rank them by their
5 average index scores, by far the largest group would cascade
6 down to eight schools that are already predominantly minority
7 and would displace minorities who were already attending those
8 schools. So there would be this perverse effect that
9 minorities would be excluding other minorities from the
10 predominantly minority law schools.
11 Q Which graduate --
12 A But many would cascade out, as you say, entirely.
13 Q Which graduate a relatively small percentage of lawyers
14 in America every year; correct?
15 A A percentage, certainly a small percentage of lawyers,
16 but of minority lawyers, I think they are a reasonably
17 substantial contributor in terms of the people they graduate,
18 but if we didn't have affirmative action, I think it's like 40
19 percent, according to Wightman's figures, would be coming from
20 those schools.
21 Q Well, if we didn't have affirmative action, we would be
22 back to the days of Sweatt versus Painter that we talked about
23 before, right?
24 A We wouldn't quite be back there, but in schools like
25 Michigan, I'm afraid we would be very close.
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1 Q Based on your findings, Professor Lempert, are the
2 minority students, minority alumni in your study, every bit as
3 qualified as their white counterparts?
4 A Our study, by every measure we have of success in
5 practice, says that if -- you know, in picking well-rounded
6 students, picking students who really add potential for legal
7 education, we're using a standard which turns out people who
8 are equally qualified, white or minority.
9 Q And so based on your study, would you say that there has
10 been a double standard in effect in admissions at the
11 University of Michigan Law School that disadvantages white
12 people?
13 A When it comes to success in practice, a crystal clear
14 single standard: Race does not matter to success at the
15 University of Michigan.
16 MS. MASSIE: Thank you.
17 THE COURT: Just a quick question. Assuming just
18 for purposes of this question index scores, nothing else, and
19 the index is the LSAT and the --
20 THE WITNESS: Right.
21 THE COURT: Okay. So we're on the same wavelength.
22 And your study indicates that those that are admitted, no
23 matter what their index scores happen to be, succeed equally
24 once they get out?
25 THE WITNESS: Yes.
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1 THE COURT: That would be a true statement?
2 THE WITNESS: Yes.
3 THE COURT: And I suspect that is because, and you
4 can tell me as a faculty member, is that no matter what their
5 index score is, the standards in the school don't change?
6 THE WITNESS: Yes. I think it's because we have
7 high standards, even for admitting minorities, and we have
8 high standards in the classroom. Not many people flunk out,
9 but occasionally people do flunk if they can't make it, yeah.
10 THE COURT: I understand. Because your standards
11 don't -- when I say your teaching standards, that which you
12 expect of a student in order to graduate does not change no
13 matter what their index scores?
14 THE WITNESS: Our teaching standards don't change,
15 our grading doesn't change, and we grade blind, so we have no
16 idea whether we're grading any -- what their race or ethnicity
17 is when we grade them.
18 THE COURT: And I suspect as a professor there,
19 unless you happen to be involved in admissions or something of
20 that nature, you have no idea what the index score is either?
21 THE WITNESS: Have no idea. I never go -- I have
22 never gone back and looked to see, now, what was the index
23 score? What I care about is how they perform in my class.
24 THE COURT: Doesn't make any difference.
25 THE WITNESS: Just like you with advocates, whatever
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1 their position is, if they perform well like good lawyers, I
2 love them, if they don't, I try to help them.
3 THE COURT: Okay, so -- okay. Thanks.
4 CROSS EXAMINATION
5 BY MR. GOLDBLATT:
6 Q Professor Lempert, good morning.
7 Most of what I want to ask you about has to do with
8 -- I don't have many questions, but most of what I want to ask
9 you about are the lessons that we draw from your study in
10 terms of how should law schools go about making admissions
11 decisions in light of the learning that arises out of your
12 study.
13 I don't principally want to go back through the
14 findings of your study itself, Ms. Massie covered that in some
15 detail, but I guess there is one finding, before we go to the
16 lessons, one finding from your study that I would like to ask
17 you about, and that's this: Your study was principally about
18 the career paths and the careers of the graduates of the law
19 school who are members of three racial groups; is that right?
20 A Correct.
21 Q And it wasn't principally --
22 A Well, whites. I mean, you know, equal opportunity
23 students of the legal profession.
24 Q So your study wasn't principally directed, then, to
25 studying the effect of racial diversity on the educational
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1 experience of students, but I understand that there is some
2 data in your study that speaks to that question?
3 A That was one of the issues that we wanted to elucidate.
4 It wasn't -- we had many, many issues and that was just one
5 question, basically.
6 Q Okay.
7 A Or set of questions.
8 Q And can you just describe for the Court your principal
9 finding on the question of what is the consequence of diversity
10 to legal education?
11 A Yes. The principal finding, and there are some tables in
12 here, but I'll just summarize briefly, is that many students,
13 you know, place considerable value on both ethnic, gender and
14 ideological diversity to their education when they look back.
15 Q First, let me just stop you for a second. Is that Table
16 5?
17 A Table 5 and 5B, I think, or 5A.
18 Q Page 413 and 414 of Exhibit 230?
19 A Yes, I believe that's it.
20 Q If you would just walk us briefly through what the
21 principal findings there?
22 A Okay. Let me walk you through the principal findings.
23 That if we look at the table for the 1970's and 1980's broken
24 down by race, we see that in the 1970's about two-thirds of the
25 minorities and the 1980's about 60 percent place what I call
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1 considerable value to diversity on their education, all three
2 types. But let me just focus on ethnic diversity, since that
3 -- you know, it's easier to look at one column than three, and
4 that's what we have been talking about in the regressions.
5 When you look at whites, however, you see a somewhat
6 different pattern in that whites a much smaller proportion, by
7 no means minuscule, and even in the 1970's I think only 18
8 percent of the whites placed no value on ethnic diversity, but
9 it's much smaller than minorities and the difference is
10 statistically significant.
11 When you look at the 1990's, however, current
12 system, the value that whites looking back place on ethnic
13 diversity increases dramatically. It is not statistically
14 different than the value minorities place on ethnic diversity.
15 Now, that hides a more nuanced story. If you turn
16 the page, Table 5B, you will see the difference between
17 minorities and whites is due, really, entirely to the
18 difference between the reactions of white males and white
19 women in the 1970's and 1980's. White women always seem to
20 place a value on diversity about as high as minorities. It's
21 only white men who come up in the 1990's. And I think there
22 are probably two reasons for that.
23 One reason is simply the number of minorities was
24 increasing and you might say, okay, but then why does that
25 have this effect on white women? Well, I think white women
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1 had more to do with minorities when minorities were there in
2 smaller numbers, because they both felt like minorities.
3 And indeed, at one point in the, I think, 1970's,
4 maybe the early 1980's, the white women and minority women law
5 associations would jointly endorse people for the Student
6 Government and the like, so I think there was always more
7 interaction and interaction is what gives it its value.
8 In the 1990's, we had -- you know, as we just
9 gradually increased over time, just minorities of all sorts,
10 but also, in the 1990's white males became a much smaller
11 fraction of the population. I think they became a minority
12 around 1990 in the extent that more than 50 percent of our
13 students, I don't have the exact figures, were either one of
14 the minorities we have been talking about or Asians or women.
15 And what that means is, you know, you're sitting in
16 class, the person next to you who you look to for, you know,
17 quick, what's the answer to the question, may be black or
18 Hispanic or a woman or an Asian. The person you're assigned
19 to do a moot court with, same thing. The person who you're
20 eating lunch with, the same thing.
21 And also, you know, I don't want to just talk about
22 whites. You know, we talked about critical mass from my last
23 testimony. At least my sense is that when we had much, much
24 smaller numbers of minorities, and primarily it was all black
25 in the 1970's, there was much more a sense of, you know,
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1 people staying together and eating at the same table. As the
2 number increases, you know, you get lots of diversity within
3 the minority community, get lots of people, you know, just
4 interact, and so I think this interaction is what broke it
5 down.
6 And it's why, you know, today, I assume, I have
7 every reason to believe it continues, if you ask whites about
8 the things that contributed to the value of their legal
9 education, a lot would say a very important contributor was or
10 is the diversity we have, and the ethnic diversity in
11 particular, and that's confirmed by the study that Gary
12 Orfield and Dean Witlaw did in which they did a survey of yet
13 more recent graduates, and students, they found among students
14 even higher proportions. I recall 70, 80 percent said this
15 was important. So I think that's what is going on.
16 Q Just so I understand the sort of bottom line here, is it
17 a fair summary to say that the greater exposure that students
18 have with people of different races in the law school setting,
19 the more they value that diversity as part of their legal
20 education?
21 A That is certainly my interpretation of the causal reason
22 for the data. The data themselves simply say that if you ask
23 what contributes to a legal education, the minds of those being
24 educated, majority of students, I mean, the overwhelming
25 majority give some weight to ethic diversity and many, many
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1 students give strong weight.
2 Q Okay. I would like to turn now to -- away from what your
3 findings are and talk a little bit about sort of what they
4 mean, what they teach us, how they can help us think
5 intelligently about how to go about making admissions
6 decisions.
7 Now, your study shows, and tell me if this is a fair
8 encapsulation, although of course an oversimplification, but
9 your study shows that by any of the measures of success that
10 you used there is just no meaningful correlation between, say,
11 undergraduate grades and test scores, let's call it the index,
12 no meaningful correlation between the index and the success by
13 any of the ways success is measured?
14 A Right.
15 Q Now, the question that that presents is, being that
16 that's so, would you get the same result if you had a different
17 admissions policy? Let's say an admissions policy that
18 identified a group of applicants who the law school believed
19 could succeed in the classes and graduate without serious
20 academic difficulty and then from that group just choose at
21 random, do you expect you would see the same results?
22 A In two senses, I would doubt that, or at least let me be
23 specific. In one way I'm absolutely confident it would not.
24 In another way, our data certainly don't do anything to
25 suggest. And that sounds cryptic, let me explain.
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1 Q Please do.
2 A The way I'm confident we wouldn't see the same results is
3 that any -- at any level of cutoff that we are likely to have
4 we now use, we just wouldn't get the same proportion of
5 minorities. We wouldn't get close to the same proportion of
6 minorities in our student body. So whatever benefits we have,
7 issues of critical mass and the like, I mean, that just would
8 not happen were we selecting, and other law schools, selecting
9 randomly.
10 The other thing that I want, I want to -- I want to
11 be -- I'm glad you asked this question, because I want to
12 issue a caution about overinterpreting this nonassociation
13 between index scores and practice.
14 That finding is only a finding among the people we
15 in fact admitted. In our admissions we look at -- as our
16 policy intends, I talked at great length about it, as I think
17 other people have -- we look at the whole person. We look at
18 all their strengths and weaknesses. So if we get somebody who
19 has a low LSAT, it may be more important if they have a high
20 grade point average. If we get somebody who is low in both,
21 if they have been very creative or have strong
22 recommendations.
23 So if we were to choose randomly, we would not be
24 looking at the whole person. We wouldn't be looking at the
25 person at all. And we would not -- there is no reason to
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1 expect that we would see the same results, because we wouldn't
2 be selecting people for the drive they have, for the
3 creativity they have, for leadership skills, for teachers who
4 say, look, ignore the test scores of this person, this person
5 has, you know, tremendous ability.
6 We wouldn't even get things that relate to the way
7 we use the index score. We wouldn't get the pattern of
8 increasing grades with the years. We wouldn't get the pattern
9 of the person who tested poorly at the undergraduate SAT level
10 and that did sparklingly well in law school. Random selection
11 with a cutoff wouldn't do any of those things, and for those
12 reasons there might well be a relationship in the world you're
13 describing, and certainly our data say nothing to suggest
14 there would not be a relationship if we selected randomly. We
15 would be, I think, graduating less capable students, less
16 capable lawyers if we used random selection.
17 THE COURT: How about if you -- if you used
18 individual selection, as you have indicated, you took each
19 person as an individual, using the index or any part of the
20 index if you want, assuming that institution could use
21 anything they want, take any criteria other than race into
22 consideration, but they could analyze each one individually
23 with whatever objective they want, and we know that the
24 University of Michigan's objective is to have success without
25 lowering teaching standards and requirements and so forth, and
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1 then put all of those persons into the pool?
2 THE WITNESS: If we did that, Your Honor, I can't
3 say from my data how that would affect success, whether there
4 would be a correlation or not. My hunch is that if we did
5 that we would not find that the results would be similar to
6 what I reported, however, if we did that we would have
7 virtually no ethnic diversity in the school, that the numbers
8 of minorities who might meet any meaningful cutoff for
9 Michigan and the other schools that compete with --
10 THE COURT: You can treat them as individuals. I
11 have heard the testimony so far is that all persons, no matter
12 what their race, are treated as individuals and that there
13 perhaps may be some, but very little, and not a trump card by
14 any means for race, so if you use the same criteria, just took
15 this very little out of it, why wouldn't you? If you know, I
16 don't know. I know you haven't studied it. I'm just asking
17 for your opinion.
18 THE WITNESS: No, I actually do have an opinion on
19 this, so maybe I know something, maybe I don't.
20 THE COURT: I think you do. You have been around a
21 while, so.
22 THE WITNESS: Yeah. The problem is that if we did
23 that the proportion of whites in our applicant pool would
24 overwhelmingly dwarf the minorities, so if we selected at
25 random you would expect to be selecting the proportions we had
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1 in the applicant pool, and we would have many more
2 proportionally qualified whites, even though we would look at
3 our minorities, you know, carefully and we would put a lot of
4 the ones who were qualified into the applicant pool.
5 THE COURT: So your applicant pool is what you're
6 saying would be larger, so therefore, statistically it would
7 --
8 THE WITNESS: The number would go way down, and of
9 course, the actual number -- let me give you a feeling for
10 maybe the sense in which it would be dwarfed. We could -- and
11 there would be all sorts of ramifications I don't want to get
12 into about prestige, hierarchies and other issues, and there
13 is a market out there for law students, and other law schools
14 might behave differently, but let me just put that aside, and
15 let me just use an example.
16 If we were, for example, to say, okay, if we're
17 going to select randomly, we want a really rigorous cutoff,
18 much higher than we're now using, and we're going to look at
19 the schools and we're going to kind of group and say the 18
20 most selective law schools or something of that sort,
21 something like that, and we're going to look at what the
22 median -- at sort of what it takes to get into one of these
23 law schools today.
24 When Wightman did her study she found that of those
25 18 schools, only 24 -- she just looked at blacks, and 24
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1 blacks would have met a cutoff that stringent.
2 THE COURT: But the cutoff had to do with an index
3 of some type as opposed to individual considerations.
4 THE WITNESS: Right, right.
5 THE COURT: My premise is, forget the index or not
6 forget it, that the institution would have to make that
7 determination, would have to weigh diversity versus that.
8 THE WITNESS: Right, right. I think the institution
9 would certainly continue using a cutoff that would exclude far
10 more, far higher proportion of minorities than whites. I
11 mean, we do that in a sense now that, as I recall, something
12 like, oh, again, it's just from quick glance running through
13 the Plaintiffs' expert testimony, like 40 percent of the
14 cells, nobody was admitted. Whether they were white or
15 minority, that was the cutoff area, I assume, and I think our
16 experience has been that probably works pretty well and this
17 supports that.
18 I think if I can go back in my own memory to law school to the
19 early 1970's, I think we did admit people on much lower
20 credentials than we admit today and I think a number of them
21 struggled getting through law school in a way we don't like to
22 see our students struggle and don't see them struggling now.
23 So what we would be doing is we would be cutting off, first of
24 all, a large proportion of minorities, and then the ones who
25 get into the applicant pool, if we could not consider race at
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1 all, would be so dominated by whites that random selection
2 would yield very, very little diversity.
3 And there is one other thing, I don't know if this is relevant
4 --
5 THE COURT: No, I want to hear it.
6 THE WITNESS: This is, you know, thinking about as a
7 committee, you know, I actually -- you know, thinking about
8 when we're doing this, we're trying to think about Bakke and
9 what Bakke implied and, you know, I think Bakke would be
10 inconsistent with that scheme for a couple of reasons.
11 One reason is that, you know, they basically explicitly
12 approved the Harvard measure, and in doing that they sort of
13 capture something that's very important to me as Michigan
14 faculty, kind of the personality the institution has.
15 And you know, Harvard is one of the most selective
16 undergraduate colleges in the nation. They could easily have
17 lowered substantially whatever cutoffs they used and still
18 gotten lots of very, very capable students, and yet, you know,
19 Justice Powell and the majority of the Court approved of that
20 and approved of it with kind of respect for the institution's
21 ability to self-define. So that's one thing.
22 The other thing which, you know, thinking about this issue is
23 my personal view, it doesn't -- you know, one doesn't have to
24 share it, but I actually think that a random system, even the
25 way you suggest, would be less consistent with the spirit of
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1 Bakke, because the spirit of Bakke was that you have to get
2 away from quotas and when you choose randomly, though it
3 sounds like the epitome of fairness, statistically speaking
4 you're imposing a quota.
5 You're saying over time, it won't happen in a given year, but
6 over time the number of minorities that are going to get into
7 this school no matter how capable they are, the number of
8 whites that are going to get into this school no matter how
9 capable they are, will be exactly the number, if you do it
10 over a number of years, as you have in your applicant pool.
11 And moreover, if in a given year the minority applicants are
12 more capable when you consider the whole person, the white
13 person, their rate is not going to go up, and if in a given
14 year the white applicants are -- it's a really capable white
15 applicant pool versus the minority, their rate will go --
16 won't go down.
17 And at least as I read Bakke, and I did not go back and reread
18 it, but I certainly read it carefully a number of times, as I
19 read Bakke, what the Court wanted was this comparison. They
20 wanted what I think we do, every white student to be competing
21 against every minority student. And that, you know, in an
22 interesting way would take away the competition that I think
23 Justice Powell thought gave integrity to a process that
24 considered race and that sought to get diversity for
25 educational purposes. So that's what I think, you know --
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1 THE COURT: I appreciate that.
2 THE WITNESS: -- don't do that.
3 MR. GOLDBLATT: Just one thing just to clarify. You
4 referred to the use of cutoffs as the law school operates
5 admissions under the policy, Exhibit 4, Your Honor, which we
6 haven't seen in some time.
7 THE COURT: I have it right here. Remember, I told
8 you, this is the one I'm framing, right here. I have it right
9 there.
10 THE WITNESS: I'll autograph it for you.
11 THE COURT: I see it every day.
12 MR. GOLDBLATT: At this point it's an old friend,
13 Your Honor.
14 BY MR. GOLDBLATT:
15 Q Under that policy is there some sort of fixed cutoff,
16 numerical cutoff, I want to clarify, the way you use the term,
17 cutoff?
18 A No. There is no fixed numerical cutoff, but we take
19 index scores seriously, as we take many other factors
20 seriously.
21 Q And turning to the index, I just wanted to clarify, the
22 numbers you provided earlier with respect to the data from
23 Linda Wightman study, in terms of if one were to use the index
24 as a rule of decision in making admissions decisions, across
25 all of the law schools in the country, how many African
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1 American law students -- and there are about 175 or so law
2 schools, is that an approximation?
3 A I think her study had 173 or something of that sort.
4 Q Fair enough, Professor Lempert. Among those
5 approximately 173 law schools, using the index, about how many
6 African American students would have been admitted?
7 A If you -- let me see, if you took the top half, the top
8 89 out of, I think, 100, you exclude the historically minority
9 colleges, you took the top half, which is 89 schools, I think
10 you would have something like 170 blacks. You would not -- you
11 know, she did look, I didn't look, I just looked at blacks,
12 which were the major group, or something less than two per
13 school.
14 If you took all the schools in the study and they
15 just used their own white numerical cutoffs, or numeric -- I
16 shouldn't say -- not their own white cutoffs, but formulas,
17 which she did for every school separately, if they used their
18 own white formulas, I think in the 163 nonminority schools
19 there would have been something like 370 blacks admitted or
20 just a little bit more than two per school.
21 So when you think of any school's racial diversity,
22 if we move from a world in which law schools are able to
23 consider race as one of many factors as part of the admissions
24 process to a world where that were not possible, or if people
25 were using their own formulas and then choosing randomly among
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1 people who exceeded their formula, blacks, the enrollment
2 would just, you know, plummet, and the same is true, though
3 not to necessarily the same degree, but pretty much true of
4 Hispanics and Native Americans.
5 Q Okay. And that's based on an index score --
6 A Right.
7 Q -- that combines the LSAT and the GPA. Let me just ask a
8 slight variation. Say rather than doing that, one looked at
9 the whole person, okay, everything except race, okay, and
10 assume further that these other factors that mattered didn't
11 correlate with race, there was no statistical correlation at
12 all between other factors and race, and you weren't considering
13 race, do the numbers change at all?
14 A I'm sorry, I'm not quite sure --
15 Q If the index score that you just described, and that was
16 actually used, rather than using that one, looked at the whole
17 person, but not race, okay, someone were able, imagine, were
18 able to extract race from the whole person, just looked at
19 other factors, but if there were no correlation, if the other
20 factors fell evenly across race, then would the numbers
21 admitted vary?
22 MR. PURDY: Excuse me, Your Honor, at this point I
23 have to object on foundation. I think this is calling for
24 speculation.
25 MR. GOLDBLATT: It's a straightforward statistical
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1 question, Your Honor. He is clearly an expert in this field.
2 THE COURT: Well, if he knows. I don't know if he
3 has done the computations or knows.
4 MR. GOLDBLATT: Fair enough.
5 THE WITNESS: I guess I'm not clear about your
6 question.
7 BY MR. GOLDBLATT:
8 Q Okay. Why don't we move on. Fair enough. Let me ask
9 the question another way. The numbers you just gave relate to
10 the numbers of African American applicants who would be
11 admitted to law school in the United States under a system that
12 considered GPA and LSAT?
13 A Right.
14 Q Based on the Linda Wightman study, and let me ask this
15 question: Does her study, to your knowledge, address what
16 would happen if rather than this index, throw out the LSAT, and
17 look only at the GPA?
18 A Yes. And I think I finally understand your first
19 question, so I'll come back to that.
20 That -- well, first of all, let me just say --
21 THE COURT: Do you know, or have you done it, or are
22 you just telling us what somebody else has done?
23 THE WITNESS: I'm telling you one of the things that
24 informs my own, what I hope are, expert views.
25 BY MR. GOLDBLATT:
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1 Q Professor Lempert, let me just lay a foundation, if
2 that's helpful.
3 In your expert report that you submitted to this
4 Court did you rely on the work of Linda Wightman?
5 A I'm not sure if I cited it, per se, but it certainly was
6 in my mind as I wrote the report. I think I did cite some of
7 her work.
8 Q And are you satisfied that that work is of the quality
9 and the character and methodology that's appropriate in the
10 field?
11 A Yes, quite clearly.
12 Q Okay.
13 A But let me get back to, if I can remember, your question.
14 I think there were two questions you asked.
15 One question is could we just use, solely just use
16 undergraduate grades, say get rid of the LSAT score. Before I
17 answer that, I just want to say, in my view that would be a
18 disaster, and the reason it would be a disaster is because it
19 would promote undergraduates to seek courses with inflated
20 grades, it would indeed promote grade inflation at the
21 undergraduate schools so their graduates can get into good law
22 schools. So I just would hate to see us do that.
23 THE COURT: If you use only that?
24 THE WITNESS: If we used only that.
25 THE COURT: We have heard testimony before that on
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1 an individual basis people look at that, what's the class, you
2 know.
3 THE WITNESS: Yeah. But there would be pressure on
4 the schools to make their so-called tough courses easier, I
5 fear.
6 THE COURT: I see.
7 THE WITNESS: And also, and the predictive value
8 would actually go down, I'm confident, so it would be a less
9 valid predictor if we were to move to that.
10 Beyond that, the difference, there would still be a dramatic
11 diminution. In the 1971 class I recall about 3,400 I think
12 may have been minority, may have been blacks, I think it was
13 blacks, were admitted to American law schools.
14 BY MR. GOLDBLATT:
15 Q If I can just stop you for a second, you said the 1971
16 class?
17 A 1991. Did I say '71? Sorry. And if you used just
18 undergraduate grade point and you looked at people who would be
19 admitted to one of the law schools at which they applied, my
20 recollection is it would be something like 660 or 670. If you
21 asked would they be admitted to any law school in the country,
22 that includes the predominantly minority ones, then I think it
23 was a little over 1,000, but it still diminishes by a third.
24 Q So it would fall by --
25 A It would just -- for lots of reasons, it would not work
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1 to get rid of the LSAT, if you're going to use hard credentials
2 at all.
3 With response, if I can, I think I may understand
4 the other question. If you meant could we look at other
5 things like SES or undergraduate major or the like, would that
6 bring about diversity, Wightman looked at some of those, and
7 the answer is clearly not.
8 THE COURT: Excuse me one second.
9 (Discussion off the record at 11:46 a.m.)
10 BY MR. GOLDBLATT:
11 Q Professor Lempert, you have served on the Law School
12 Admissions Council Test Development and Research Committee?
13 A Yes, I have.
14 Q And in that capacity -- well, how often have you served
15 on that committee?
16 A I think I have had three or four terms. I don't know --
17 I know that there is a break between one set of them and
18 another term. There may have been a break between some others.
19 I have probably served at least eight years, but I'm not
20 certain.
21 Q Okay. And just to clarify this, that's not a Michigan
22 committee, it's from the Law School Admissions Council, the
23 national organization?
24 A This is a committee which the organization that runs the
25 LSAT test has as one of its major standing committees to review
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1 the test, to review the validity of the test, to review the
2 research that's been done on the test and the like.
3 Q And in that capacity, have you had occasion to research
4 questions of test bias?
5 A I have had access to reports, internal reports to LSAT,
6 some of which are, and I think some of which may not be,
7 generally distributed that deal with issues of bias, yes.
8 Q Do you believe in your view that the test is biased?
9 MR. PURDY: Your Honor, at this point --
10 THE COURT: Sustained. He wasn't called as an
11 expert on test bias.
12 MR. GOLDBLATT: That's fair enough, Your Honor.
13 BY MR. GOLDBLATT:
14 Q The law school's admissions policy provides for the use
15 of the LSAT as a factor in admissions?
16 A Yes.
17 Q Do you believe it's appropriate to use the LSAT as
18 someone who has drafted a policy that provides for its use?
19 A Yes, I do. I think it has a limited purpose, but in that
20 respect an appropriate one, in that it helps us predict grades
21 that students have in law school, but the lack of relationship
22 to practice success means we certainly should not over weight
23 it, and I guess I think when we use it we have to be aware
24 that, for example, certain groups may have less access to test
25 preparation courses or other -- you know, they may have not
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1 been taking these tests all their lives and the like, and one
2 considers the way you consider everybody, as part of the whole
3 person.
4 Q Do you know whether the test has been validated for
5 certain purposes?
6 A It's been validated for first-year grades and really only
7 for first-year grades. Though Wightman is another study which
8 shows that it's valid for -- officially validated, and it
9 comports with our study, incidentally, at Michigan -- it is
10 valid for cumulative grade point average, as well.
11 Q And in light of what you know --
12 A That's in a narrow sense.
13 Q In light of what you know about the purposes for which
14 the test may validly be used, are you satisfied that the use to
15 which the law school puts the LSAT is valid?
16 A Yes, I think it's used appropriately in our admissions
17 process.
18 Q And is that true for all racial groups?
19 A Yes, I believe it's appropriately used for minorities as
20 well as white students and in the sense of the proof of the
21 pudding is in the eating, and my feeling is the success we see
22 is exactly the proof of the pudding, that we are giving the
23 right weight and that we're considering much the same way for
24 minorities as we are for whites.
25 Q So I take it you're saying that even though test
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1 validation is a technical term, that use of the test is
2 appropriate not only in the technical sense, but in the common
3 sense way, as well?
4 A Yeah, I think it is an appropriate thing and unless your
5 common sense says you shouldn't be concerned about how your
6 students do in their classes, yes, it's common sense, as well.
7 MR. GOLDBLATT: Thank you. That's all I have.
8 THE COURT: Would you like to break for lunch now
9 before you examine?
10 MR. PURDY: Your Honor, I had just a -- I was just
11 going to ask two or three quick questions and break for lunch
12 and return, but there are a couple I could just do in two or
13 three minutes.
14 THE COURT: That's fine. I have no problem. I was
15 going to go until 12:15, but we can break before that. We're
16 trying to get everything done by 5:00 today.
17 MR. PURDY: Yes, sir. We will.
18 MR. GOLDBLATT: Your Honor, I apologize, I just have
19 one final question.
20 THE COURT: Absolutely.
21 BY MR. GOLDBLATT:
22 Q Which is: Are you aware of any studies, not your
23 personal opinions, but are you aware of any studies showing
24 that the LSAT is a biased test?
25 A Not in a technical sense of bias that it predicts
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1 first-year grades in a way that disfavors minorities.
2 MR. GOLDBLATT: Okay. That's all.
3 THE COURT: Mr. Purdy, you can ask a few questions
4 and then we will --
5 MR. PURDY: I'll just ask a few and then we can
6 break.
7 THE COURT: That's great. If I thought you would
8 finish by 12:15, I would say fine, because I do want to
9 finish. Just as long as we finish by 5:00.
10 MR. PURDY: Yes, sir. Good morning, Professor
11 Lempert. Good to see you again.
12 THE WITNESS: Good morning.
13 MR. PURDY: I am just going to ask a very few
14 questions and then we will break here in about five minutes,
15 Your Honor.
16 CROSS EXAMINATION
17 BY MR. PURDY:
18 Q Are you aware of Professor Thernstrom's criticism of
19 Professor Wightman's study?
20 A You know, I read it so long ago, I have forgotten the
21 details of it. If you remind me, I'll give you my views.
22 Q My only question is, you have read the criticism of
23 Professor Wightman's study by Professor Thernstrom?
24 A I got hold of it a long time ago and sort of glanced
25 through it quickly. I know Linda quite well, I know the work
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1 quite well. I thought the work had a lot of merit.
2 Q And, of course, Professor Wightman's work, Ms. Wightman's
3 work relied solely on looking at strictly LSAT and grade point
4 average, did she not?
5 A She -- yes, her models look at LSAT and grade point
6 averages, but she included other variables. Some of the
7 variables did not have effects, so they were not -- like she
8 looked at gender, I believe, and I think there was maybe one or
9 two other variables.
10 Q But I'm talking about the admissions system, when she was
11 making these analyses that were suggesting the types of impact
12 there would be on various racial groups, she looked at the
13 impact assuming the school used only the LSAT, for example;
14 correct?
15 A I believe she did, but I think she may have done some
16 exploratory analysis which showed that certain other factors
17 would not have played a role, but I can't swear to that.
18 Q And of course, we know that virtually no school, in fact,
19 I can't think of a school, and if you can tell us of one,
20 please do, that uses simply the LSAT and the GPA in their
21 selection process; isn't that correct?
22 A I don't know of any school that uses just LSAT and the
23 undergraduate grade point average.
24 Q Just one quick question. You gave us some testimony
25 about the Bakke case, and of course, that didn't involve the
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1 Harvard plan, did it?
2 A In the Bakke case, again, my recollection is that the
3 Harvard plan was presented to the Supreme Court, I believe in a
4 brief by Columbia, I don't recall now whether it was the
5 University as a whole or the law school, and that it was
6 referred to specifically by Justice Powell, but the case itself
7 arose out of a medical student in California.
8 Q And of course, I think you have answered my question, but
9 just so everyone is clear, the U.S. Supreme Court was not
10 litigating the question of the constitutionality of the Harvard
11 undergraduate plan; correct?
12 A They weren't litigating it, but I read it as approving
13 it. You don't cite with approval a plan you don't approve of.
14 Q Well, it was appended to Justice Powell's --
15 A And that it seems answers it. How many times does the
16 Supreme Court append to decisions plans and to what extent
17 would they do that if they didn't approve? I think we can say
18 that as far as Bakke is concerned, I think we can say they
19 approve of what Harvard was doing.
20 Q Professor Lempert, you earlier made a statement
21 concerning what would happen to the students at Michigan
22 assuming Michigan didn't have a plan that considered race, and
23 isn't it true, and isn't it accurate to say that, let's just
24 use the last five years, for any student that would have not
25 been admitted to Michigan because race was not considered, in
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1 other words, let's just take those students for whom race made
2 a difference, and we have already talked about that, and
3 clearly you agree that there are students for whom race does
4 make a difference, for every one of those students, you can't
5 say whether a single one of those wouldn't have found admission
6 at another law school here in Michigan, isn't that a fair
7 statement?
8 A Can I say that specifically?
9 Q Yes, sir.
10 A No, sir, nothing in my data says they would not have been
11 admitted to another law school in Michigan, but I want to
12 caution you with respect to the financial aid data we
13 presented. A lot of these people had very, very high debts and
14 one of the virtues of the Michigan education is you have a
15 prospect of paying off those debts, and I at least think it's
16 very likely a number of those people would have not been able
17 to afford to go to other law schools in Michigan.
18 Q For example, you're suggesting that a student that may
19 have been rejected from Michigan would not have been able to
20 attend, say, the Detroit College of Law?
21 A They might not have been able to afford to attend there
22 when they looked at how much debt they were bringing from
23 undergraduate school, how much debt they would have to go into,
24 and the earning prospects which are considerably lower for
25 their alumni.
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1 Q How about, the same for Thomas Cooley, they wouldn't --
2 you're saying they wouldn't have been able to afford to go to
3 Thomas Cooley?
4 A They certainly -- Thomas Cooley, I think their tuition is
5 $17,000, and I can't point you to Joe Jones or Susie Smith and
6 say no, but I think it's probably safe to say there would be
7 people who could certainly not afford to go to Cooley.
8 MR. PURDY: And finally, then we will break, I
9 promise, this will be the last question for this session here.
10 THE COURT: That's okay. No problem.
11 BY MR. PURDY:
12 Q Professor Lempert, it's true, is it not, that when you
13 surveyed your minority alumni, you didn't make any
14 determination as to who among the survey respondents -- in
15 fact, let me just ask you about that. You got about a 50
16 percent response rate from your minority alumni; is that
17 correct?
18 A Yes.
19 Q And you never made any determination as to who among
20 those may in fact have been admitted without the need for
21 consideration of race; correct?
22 A Well, actually, no, that -- after the reports, not really
23 part of my report, but we have to talk about it, some people
24 asked about that issue and I went through and basically -- let
25 me tell you what I did.
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1 I took running four-year averages for stability of
2 the LSAT scores and the undergraduate grade point averages of
3 the whites we admitted, and I took the top 80 percent of those
4 scores and assumed that every minority student in the top 80
5 percent of those scores would have been admitted and the ones
6 in the bottom 20 percent would not.
7 Now, that overstates by quite a bit the proportion
8 of minorities with really good scores who would have been
9 admitted, because a lot of them without race, they are in this
10 box competing with 50 other people and race tips the balance,
11 it doesn't take much, but it -- but they are competitive, but
12 just by -- without race, they would be losing out one of 49 or
13 50 times.
14 So I took a group that were the top minority admits
15 by these credentials based on the white standards who -- and I
16 said, these people, not the top 80 percent, these people would
17 have been admitted without race, and then what I did is I
18 subtracted them from my sample and I reran all the regression
19 analyses on satisfaction, on income, and on service.
20 The results in each case were identical. I mean,
21 for any purposes they were exactly the same; that not
22 considering those minority students who might have been
23 admitted to Michigan on a race blind system, just looking at
24 those who one can safely assume needed the boost, yields
25 exactly the same results.
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1 Q I think you misunderstood my question. I wasn't
2 questioning the success rates. However an individual came to
3 Michigan, and if they succeeded, graduated, have gone on and
4 succeeded, I mean, I'm not questioning that.
5 A Okay.
6 Q My question was simply this: You did not make an
7 analysis that determined whether or not any particular minority
8 respondent received consideration of his or her race when they
9 were admitted, is that correct?
10 THE COURT: Any particular one?
11 BY MR. PURDY:
12 Q Any particular one.
13 A Well, this question -- if you consider the whole person,
14 probably everybody is looked at as a whole person. Now, did we
15 determine statistically, no.
16 MR. PURDY: That was my question. Your Honor, we
17 can break now and we will come back.
18 THE COURT: Okay. Break until 1:30. We will
19 reconvene at 1:30.
20 Stand in recess.
21 COURT CLERK: All rise.
22 (Recess taken at 12:00 noon.)
23 -- --- --
24
25
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1
2 -- --- --
3 (Afternoon session.)
4 (At or about 1:30 p.m.)
5 THE COURT: You may be seated. Thank you.
6 BY MR. PURDY:
7 Q Professor Lempert, I've placed your depositions in front
8 of you, and just so we can clear up the question we were
9 covering there at the end -- right before we broke, if you
10 could turn to page 63, please, sir.
11 MS. MASSIE: Which deposition?
12 MR. PURDY: The second one, August 10, 2000, page
13 63.
14 BY MR. KOLBO:
15 Q And I'm just going to direct your attention to line 7,
16 and it's on the question -- well, let me just read it.
17 "Q You do make the point that you don't know
18 For any particular minority alumni whether or not
19 race made a difference in their admission; correct?
20 "A Right."
21 "Q You state that quite candidly in your
22 report.
23 "A Right.
24 "Q If we took and just numbered and we just
25 numbered the five hundred and fifty-two" --
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1 And that was the number of minority respondents;
2 correct?
3 A Yes.
4 Q Do you recall that?
5 A Yes.
6 Q "Q And we put in number MA number 1 through MA
7 number 552 for any one of them, is it true you
8 would not be able to say whether or not conscious
9 consideration of their race made a difference in
10 their admission?
11 "A I would not personally be able to say that."
12 Do you recall giving those answers at the time?
13 A I assume I gave them because they're here.
14 Q And they're consistent with what you believe; correct?
15 A Yes.
16 Q All right.
17 A But also consistent with what I said earlier that --
18 though I can't do that one-by-one Joe Jones versus Susie Smith,
19 I can tell you that what I said generally.
20 Q Professor Lempert, this morning -- I believe you were
21 talking with counsel, I think it was Mr. Goldblatt and it may
22 have been Ms. Massie, I apologize, but I believe and I tried to
23 write this down, you said,
24 "If you ask what contributes to a legal education,"
25 -- and then you went on to say -- "our alumni responded and
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1 said a lot of benefit comes from ethnic diversity." Do you
2 recall that?
3 A Yes.
4 Q And you showed us a table, it isn't in the tables that
5 were handed out, but it was Table 5A on page 413, which
6 discusses the three types of diversity. It had ethnic
7 diversity, gender diversity and ideological diversity.
8 A Right.
9 Q But, in fact, you asked your alumni about seven different
10 factors, not three, did you not in terms of what contributes to
11 the classroom experience?
12 A There's another table that has other factors, yes.
13 Q In fact, you recall you actually asked them about the
14 role played by the faculty's abilities as teachers?
15 A Yes.
16 Q You asked them about the role played by the faculty's
17 abilities as scholars?
18 A Yes.
19 Q You asked them about the role being called on in class?
20 A Yes.
21 Q And you asked them about the intellectual capabilities of
22 their classmates.
23 A Right.
24 Q And, in fact, those were the seven questions that
25 included the three on diversity that you proposed to all of
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1 your alumni respondents; true?
2 A Among other questions, yes.
3 Q Yes, but I'm talking about the contributions to your
4 classroom and legal experience.
5 A Yes.
6 Q Did you ever derive numbers from your -- in other words,
7 a number from one through seven as what the most important
8 factor was for all of your respondents?
9 A That's -- I mean, the simple answer -- the answer is no,
10 but if it's not a sensible question because there's no way of
11 --
12 Q You've answered my question -- well, let me ask you this,
13 Professor Lempert: You asked them to rank each of the
14 contributing factors between one and seven, with one being
15 little or no value and seven being a great deal --
16 A I think one was actually none, and seven was a great
17 deal.
18 Q Fine, I appreciate that. And what you told us about was
19 that you and your colleagues decided that if anyone said five
20 to seven you would consider that significant. And then you
21 would report the percentages of your respondents that gave a
22 range between five and seven; correct?
23 A There are a couple of ways we could have done this. One
24 way was simply do the average score. In fact, I did that as
25 noted in a number of footnotes it's consistent with using five
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1 to seven. And also I did some of these six to seven, and they
2 were also consistent with five to seven.
3 Q You did say this morning that being called on in class
4 was the least important. How did you determine that?
5 A In the mind of the students when they recalled of the
6 four, and they recalled what was the valuable in the class, the
7 fewest, they named being called on in class.
8 Q Let me go back here --
9 A As being one of the top three. And I don't have the
10 number in my head now, I think whatever the average was below
11 the average of all the others.
12 Q But that's my question, did you have the average number
13 for all of the other factors?
14 A Yes, but that does not give us what you seem to be
15 seeking in your answer.
16 Q No, my question is: Do you have those average numbers?
17 A With me? No.
18 Q Do you know what they were -- do you know which factor,
19 for example, was the most important -- amongst all of your
20 alumni, when they responded to your survey, and they told you
21 what contributed the most to their classroom experience, of the
22 seven that you asked about, do you know which one was most
23 important?
24 A It's -- again, I hate to be too picky, and I don't mean
25 to be, but take a given person, a given person might give seven
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1 to three things. None of those is more important, at least we
2 can't tell anything is more important to that person. We could
3 tell you, on an average, which had more people getting higher
4 scores. And, indeed, you can get that out of our tables because
5 the correlation with the averages numerically is such that --
6 there may be an exception, I don't think so -- it should follow
7 the percentage giving one of those high scores. But it doesn't
8 mean that that is the most important for everyone or anyone.
9 It just means that more people gave that as seven or six or
10 five than the others.
11 Q But would it be fair to say that across your respondents
12 if you added all the numbers up and simply divided you would be
13 able to at least tell as across all of your respondents which
14 factor they considered most important, and which factor they
15 considered least important?
16 A There is no factor that all respondents considered most
17 important. There are factors individuals considered most
18 important. We would have to go back to the questionnaire, and
19 it would say, you know, Tom Jones, this was important. For Joan
20 Blank, this was most important. For Sid Smith, both of these
21 were equally important. I can tell you which was the highest
22 average.
23 Q That's my question, which one --
24 A But that's not the same that you're suggesting --
25 Q No, no --
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1 A --as the most important.
2 Q No, no, I apologize.
3 A There's no need to apologize, but -- I'm sorry.
4 Q Okay. You said which one was the highest average. I
5 like that. Which was the highest average amongst all your
6 respondents?
7 A I'd have to go back and look at the table, but I'm happy
8 to do that if you want.
9 Q Well, do you know as you sit here? Do you recall?
10 A I would want to go back and look at the table.
11 Q All right. I'll let you do that in a minute.
12 Professor Lempert, I received, I requested at the
13 conclusion of your deposition, I had requested all of the
14 surveys that you had reviewed, and I was provided with a
15 sample of ninety-seven surveys. Did you play a role in
16 selecting those?
17 A No, I did not.
18 Q Do you know how they were selected?
19 A At random, I believe.
20 Q All right.
21 MR. PURDY: Your Honor, may I approach the easel?
22 Let me represent to the Court I'm putting up -- this is my own
23 work so no one has to take responsibility for it. I'm just
24 going to put up some factors and some numbers. I'm asking to
25 ask you some questions about them.
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1 BY MR. KOLBO:
2 Q I'll try to speak up. These are the seven factors that
3 you asked your survey respondents about: The faculty's
4 abilities as teachers. I apologize, I didn't have room --
5 A That's okay.
6 Q This is even my penmanship. Faculty's ability as
7 scholars. You had being called on in class. You had
8 intellectual abilities of classmates. And then you had the
9 three diversity questions: Ideological diversity, gender
10 diversity, ethnic diversity. I'm going to represent to you,
11 Professor Lempert, that I was provided ninety-seven random
12 surveys, or however they were selected and with one exception
13 because one survey had no numbers on it. I added up all of the
14 columns to get an average number for each category, one through
15 seven. And these are the numbers that I will take
16 responsibility.
17 MR. PURDY: It's Exhibit 126, your Honor. Those are
18 the surveys in the court record. I'm not going to offer them,
19 unless it's necessary. But certainly, I don't want anyone
20 else to be responsible for these numbers.
21 BY MR. PURDY:
22 Q And I came out with 5.1 being the highest number across
23 the entire sample, and that was the faculty's abilities as
24 teachers. Would that be inconsistent with your recollection of
25 your survey responses?
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1 A Can I go back and look at the survey?
2 Q Surely.
3 A I'll just tell you what it is. That is Table 4, I
4 believe.
5 Q Yes.
6 A No, it's quite consistent. It has the highest proportion
7 given the ratings of five through seven, any of the items of
8 the seven items I think.
9 Q All right. I had number two at 4.9 being the intellectual
10 abilities of classmates. Now, this is for the random sample of
11 ninety-six. Is that consistent with your numbers?
12 A A quick eyeball, says yes, that's the second highest
13 proportion.
14 Q All right. I have the third highest as the faculty's
15 abilities to scholars.
16 A I wouldn't eyeball -- there's really -- my strong hunch
17 is given your numbers and they were random, there's no
18 statistical difference between any of the next five. So I
19 could eyeball these and tell you they're consistent and you
20 still might get these results.
21 Q What you're saying and we won't have to go through them
22 is that what I found in my little exercise isn't inconsistent
23 with what you found; is that correct?
24 A Right.
25 Q All right. And we have ethnic diversity being basically
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1 categorized as six to seven being called on in class.
2 A Yes.
3 Q All right.
4 A There's something interesting about these comments --
5 Q Well, there's no question pending.
6 A Okay.
7 Q Now, are you familiar with the view -- strike that.
8 In terms of the importance, no one is denying -- in
9 fact, your survey shows that all of your respondents, a
10 percentage of respondents found all of those categories to be
11 a contributor to the classroom experience; did they not?
12 A A very high percentage, found at least to some degree
13 contributed.
14 Q Yes, but in terms of the relative importance would it be
15 fair to say that even colleagues of yours shared what is
16 reported here in terms of the relative importance of each and
17 every one of those factors, or a variance of those factors?
18 Obviously your colleagues all want to believe --
19 A Well, we as teachers, are the most important. We
20 probably don't like scholars being third. But what we believe
21 -- I'm not sure I would agree with that. I hate to speak for
22 my colleagues. Let me just speak for myself. I would want a
23 good class which in some way has less to do with my quality and
24 the quality of my students. I want students who are eager to
25 be called in class. I want students who are diversed. I mean,
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1 I'd like to think that the experience students have contributes
2 a lot to the teachers like me. And I -- those rankings don't
3 surprise me. But, again, the idea of sort relative importance,
4 these are all important in their own way, in their own place.
5 Some more important to some people, some less to others --
6 Q No one is arguing that they all don't contribute.
7 MR. PURDY: May I approach the witness, your Honor?
8 THE COURT: Yes.
9 BY MR. PURDY:
10 Q Your colleague, Dean Sandalow, has written about the
11 subject of the contribution of the racial and ethnic diversity
12 in the classroom; has he not?
13 A I don't know at this time. I could certainly read it and
14 maybe I could tell you.
15 Q Surely, and I'm going to direct you to it. We'll get
16 there very quickly.
17 Do you recall reading Dean Sandalow -- former Dean
18 Sandalow, Professor Sandalow's Michigan Law Review Articles in
19 the Volume 97, Number 6, published in May of 1999, discussing
20 many of the issues that we're discussing here today?
21 A I read it either in draft or after it was published, I
22 forget which.
23 Q It's entitled, "Minority Preferences Reconsidered." It
24 begins at page 1874. Let me direct your attention, if I could,
25 to page 1905, of Professor Sandalow's article. And, indeed,
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1 Professor Sandalow is a highly respected, highly renowned
2 professor at the University of Michigan Law School; correct?
3 A Indeed.
4 Q And he served as the former dean of the law school?
5 A Yes, that's right.
6 Q And how many years did he serve as dean; do you recall?
7 A I think seven.
8 Q On page 1905 of Professor Sandalow's article he's talking
9 about racial and ethnic diversity. Let me direct you
10 specifically to page 1906, the bottom paragraph, and he says.
11 "Students learn from one another in different ways.
12 In the course of discussion, whether in the
13 classroom or in dormitory `bull sessions,'
14 participants are likely to be exposed to
15 unfamiliar ideas. My own experience and that
16 of colleagues with whom I have discussed the
17 question, experience that concededly is limited to
18 the classroom setting, is that racial diversity is
19 not responsible for generating ideas unfamiliar to
20 some members of the class. Students do, of course,
21 quite frequently express and develop idea that
22 others in the class have not previously
23 encountered, but even though the subjects I teach
24 deal extensively with racial issues, I cannot
25 recall an instance in which, for example, ideas
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1 were expressed by a black student that have not
2 also been expressed by white students. Black
3 students do, at times, call attention to the
4 racial implications of issues that are not
5 facially concerned with race, but white and
6 Asian-American students are in my experience no
7 less likely to do so."
8 Professor Lempert, do you agree with Professor
9 Sandalow's observation?
10 A It has not been my experience.
11 Q Let me direct your attention down to the bottom -- page
12 1907. Professor Sandalow goes on, quote:
13 "Although racial and ethnic diversity in the
14 student body may, thus, make a useful
15 contribution to the education of students, the
16 extent of the contribution needs to be kept in
17 perspective. Contact with students of other races
18 may enrich the educational experience, but it can
19 hardly be regarded, as the most ardent advocates
20 of race-sensitive admission policies at times
21 appear to do, as an indispensable element of an
22 undergraduate education. Even the development of
23 a capacity of emphatic understanding of ideas
24 and experiences different from one's own, which I
25 take to be the primary contribution of racial
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1 diversity to the intellectual development of
2 students, does not depend upon it."
3 Do you agree or disagree with Professor Sandalow's
4 observation --
5 A Professor Sandalow, to my knowledge never taught
6 undergraduates. I have. I taught a course in socio-psychology
7 of law to undergraduates, and one of the topics I deal with is
8 justice. And I can tell you the presence of black students in
9 that class is essentially essential to the discussions that
10 occur around that issue. I don't know what Professor Sandalow
11 is drawing on, but I have personal experience; he doesn't, and
12 I say he's wrong.
13 Q You don't believe -- I mean, certainly you're free to
14 express that you don't believe that Professor Sandalow is
15 drawing on his decades of teaching experience at the University
16 of Michigan Law School?
17 A I don't --
18 MR. GOLDBLATT: Objection, your Honor. I don't see
19 how this witness can talk about what Professor Sandalow --
20 MR. PURDY: I'll withdraw the question, your Honor.
21 Q May I approach the witness, your Honor?
22 THE COURT: You may.
23 BY MR. PURDY:
24 Q Professor Lempert, I've handed you a copy of the article
25 that I believe you're familiar with. It's an article which you
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1 previously had written that concerns report that we're
2 discussing here today; do you recall this?
3 A Yes. I should point out, David Chambers is the lead
4 author on this. I did read it and write suggestions and, of
5 course, the data reported is part of our joint scholarship, but
6 I did not write this.
7 Q I just want to ask you because I thought this was perhaps
8 the clearest statement of what you've talked about earlier
9 today. I'm not going to go through this in detail. But let me
10 direct your attention to page 23.
11 Incidentally, this is -- I apologize. Let me go
12 back. This is the called the "Salt Equalizer," what is that?
13 A I think it's a newsletter of Society of American Law
14 Teachers.
15 Q In any event on page 23, under this -- in this article
16 there's a bullet point and I think that -- I believe this
17 bullet point perhaps summarizes what your testimony was here
18 this morning so I thought it would helpful if we started with
19 this.
20 A Okay.
21 Q It's the bullet point on the right-hand side, and let me
22 just read it.
23 "...there is a strong, statistically significant
24 relationship between LSAT and UGPA, on the one
25 hand, and grades at the end of three years of law
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1 school on the other, but no significant
2 relationship between the LSAT or UGPA with regard
3 to what matters much more - the achievement of
4 students after graduation."
5 Did I read that correctly?
6 A Yes.
7 Q Would that a fair summary of what your report finds -- of
8 what you found in your study?
9 A It certainly is true that we found a strong,
10 statistically relationship between LSAT and UGPA in the sense
11 of degrees of significance and its starting grades. On the
12 other hand, if you mean by strength comes variance we explain
13 it's really quite modest. It's only 4.8 percent. It is also
14 true, of course, that we do not find any statistically
15 significant relationship between these -- what we call the
16 index and achievement after graduation.
17 Q Fine. Let me ask you to compare something. I don't have
18 the exhibit so I didn't bring it up here and I apologize. I
19 believe Exhibit 4, the admissions policy that you chaired the
20 committee that prepared it.
21 A Yes.
22 Q You made reference to a twenty-seven percent variance
23 that the first-year grade point being explained by -- I'm
24 sorry, the index explained twenty-seven percent of the variance
25 in the first year grades; is that correct?
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1 A I'll take your word for it.
2 Q All right. If something explains thirty-eight to
3 forty-three percent of the variance would that mean it explains
4 more of the grade point?
5 A Yes.
6 Q All right. Isn't it true --
7 A Let me -- excuse me --
8 Q Sure.
9 A I have to make a correction.
10 Q Sure.
11 A I think what -- well, I'm not even certain. Go ahead.
12 Q Well, on page 663 and 664 of your report, Exhibit 230, I
13 believe that you suggested -- or you tell us that the index
14 that you and your colleagues created combining the SLAT and the
15 GPA explains anywhere from thirty-eight to forty-three percent
16 of the variance in total law school GPA --
17 A I'm sorry, I misspoke. Yes. I was thinking of what the
18 grade point explained in terms of our income measure. You're
19 perfectly right that the correlations we were getting were
20 often around .6 which is about thirty-six percent explained
21 variance of law school grades. I was just --
22 Q Fine. And no problem, and if you need to correct
23 something, feel free to do it.
24 But what you actually found is that as opposed to
25 twenty-seven percent variance explained by the index for first
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1 year grades alone, you and your colleagues have, in fact,
2 increased the importance of the index and not only have you
3 increased its predictive value, you've done it for the entire
4 law school grade point average; is that a fair statement?
5 A No.
6 Q Oh, it's not. Okay. Why is that incorrect?
7 A Because the twenty-seven percent was referring to one
8 class, and there's always variation from year-to-year. And the
9 statistics we give are for twenty-seven years of classes. So I
10 have no idea whether it's higher or lower if you follow that
11 class through.
12 Q Okay. So thirty-eight -- explaining thirty-eight to
13 forty-three percent of the variance -- I'm sorry, thirty-eight
14 to forty-three percent of the variance being explained, that
15 would be less important than twenty-seven percent?
16 A It's not less important. It's less -- can I just check
17 my tables here?
18 Q Oh, surely.
19 A That -- I'm sorry --
20 Q No, take your time. Not a problem.
21 I was referring to page 463 and 464 if that will
22 help you.
23 A Yes, yes. Okay, thirty-six percent. I just want to be
24 sure -- I don't have my calculator. I'll take your word for it
25 that it's six fifty-seven for -- comes out to forty-three
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1 percent.
2 Q Those are high correlations, though, are they not? I
3 mean, they're statistically significant.
4 A They're highly statistically significant which means that
5 they are not chance correlations. They're not going to be --
6 they're not chance correlations.
7 Q Fair enough.
8 A They also do a pretty good job in terms of predicting
9 grade points as these kinds of measures do.3.
10 Q And, in fact, if I'm not mistaken I think you've told us
11 this may be the first study that's actually found a predictive
12 value across an entire law school career as oppose to just the
13 first year; would that be correct?
14 A In fact, Linda Wightman, I believe did the same. At the
15 time I wrote that I may have thought that was kind of unique,
16 I'm not sure. It's conceivable there may be one or two others,
17 but it's certainly is one of the few studies.
18 Q Surely, you're in the forefront. We'll give you that.
19 How's that?
20 A Fair enough.
21 Q And you also found it was predictive for all of your
22 students irrespective of ethnicity; correct?
23 A Again, I don't want to quibble. It's predictable -- it
24 predicts for the whole group of students. And it predicts also
25 separate for minorities taken as a group, and for whites taken
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1 as a group, but the predictive -- the degree of explained
2 variance goes down certainly particularly with your white
3 recent graduates.
4 Q In other words, it's actually more predictive for your
5 minority group.
6 A Again, getting into technical issues. The correlations
7 are higher in that sense. Part of what goes into correlations
8 is sort of a spread the credentials you're measuring. Since
9 the spread tends to be larger -- at least I believe it's larger
10 -- just like this artifact you'll get higher correlations if
11 there is some correlation.
12 Q I was uncleared today and -- this morning, we got into a
13 little bit of a discussion about test bias, and you ultimately
14 answered some questions. I'm going to go ahead and ask you:
15 Do you believe that the LSAT is biased against minorities?
16 A Well, there are two kinds of bias.
17 Q Well, first can you answer -- go head.
18 A Well, the answer is yes for one and no for another.
19 Q All right.
20 A One kind of bias is really technical bias. Does it
21 predict first-year grades better than chance?
22 Q Does it?
23 A And my belief from the studies I've read, from my own
24 work, yes, it does. The other is what I would say is systemic
25 bias, that is, if you have a group of people who are getting
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1 inferior educations in K through 12, who can't afford to take
2 test preparation courses, or who have not been familiarized
3 with tests like the SLAT or SAT because they just don't take
4 them all the time in their classes, that's another kind of
5 bias, a social bias that I believe does effect LSAT and
6 comparative scores.
7 Q Let me just ask you to turn to page 105 of your
8 deposition, the August, 2000, deposition. And I'm going to
9 direct you to line -- page 105, line 17. I asked you these
10 questions.
11 "Q Well, do you believe as you sit here" -- and
12 incidentally, this was August 10, 2000, a couple of months
13 ago; do you recall that?
14 A Yes.
15 Q "Q Well, do you believe as you sit here today
16 the LSAT is biased against any particular
17 Minority group?
18 "A Again, I would say I'm open-minded on that
19 issue.
20 "Q May or may not?
21 "A It may or may not be, yes."
22 Have you changed your view since that day?
23 A You know, I've actually thought about that. And as I
24 say, "bias" is a lose word. I'm not even sure what the sense
25 of the two sentences you were using it in. But I looked at the
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1 Wightman Study, thought about ours, and recalled some of the
2 studies I read when I was on the research law school --
3 admissions council and test development committee, and I feel
4 pretty confident that there is no substantially -- let me put
5 it this way, that is valid for minorites when on the narrow,
6 narrow issue does it predict first-year grades in much the same
7 way it's valid for whites. But maybe perhaps because of this
8 trial I've been thinking a lot more about the social-bias
9 issue, and I think partly because some of the testimony that
10 I've read about in the papers that has actually come out here,
11 and I guess I do think that there are biases built into society
12 that are reflected in how people perform on this --
13 Q But that's not based on any research or analysis you've
14 done, that's based on -- you've now listened to testimony, and
15 that's what forms the basis for your change?
16 A Well, it's based on a number of things. Partly of what
17 I've heard here, partly some of my knowledge of Claude Steele's
18 work which I think suggests minorities are disadvantaged. I
19 can't tell you whether I've read anything between the time of
20 the deposition and the time of the trial in sociology
21 literature that might bear on this, but I quite could have.
22 Q You're aware, of course, are you not that Professor Derek
23 Boc was retained as one of the experts by the University in
24 this case?
25 A Was it this case or the undergraduate case?
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1 Q This case. You knew he was retained.
2 A I knew he was retained. I didn't know -- I mean, I
3 probably did know at one time.
4 Q Have you read any of the works by Professor Bok where he
5 discusses whether or not he believes standardized tests are
6 culturally biased against any particular group?
7 A I have read the book by Bowen and Bok. I don't recall
8 any discussion of that issue in that book, which is not to say
9 there wasn't any. I have not read any other work by him on that
10 issue.
11 Q You haven't read for example, his work --"Beyond the
12 Ivory Tower," published in 1982, where he discusses his own
13 view about whether or not standardized tests are culturally
14 biased?
15 A No, I haven't.
16 Q Okay. And you don't recall what view is set forth in
17 "The Shape of Rivers" as you sit here today?
18 A I can't tell you whether it was discussed or not.
19 Q Okay. So you don't know whether in fact, Professors Bok
20 and Bowen took the position that in their view standardized
21 tests are not culturally biased, you just don't know one way or
22 another.
23 A Well, I would like to know whether you mean in the sense
24 they are invalid, that they don't predict scores because of
25 culture, or if you mean in the sense that certain groups may
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1 score worse on a test than, indeed, to worsen their grade point
2 and their abilities, than to worsen their tests say in law
3 school or undergraduate school, and their abilities should
4 leave them to do.
5 Q Well, if, in fact, tests were biased against a particular
6 group would you expect, that, in fact, once they got into
7 undergraduate school or law school they would actually over
8 perform, in other words, the tests would under-predict what
9 they would do once they were admitted?
10 A Not necessarily.
11 Q Are you familiar with any of the literature concerning
12 the over-prediction of standardized tests for certain minority
13 groups?
14 A Yes, somewhat.
15 Q And you're aware that what -- why don't you tell us what
16 is your understanding of what it means if a standardized test
17 over-predicts performance?
18 A It means that if, for example, you were to take
19 regression co-efficient established in a white sample, and you
20 assume that, let's say, a minority sample, we get the scores
21 that are predictive, they will, in fact, get slightly lower
22 scores. But there's some really intriguing aspects of that. A
23 lot of the over-prediction at least in the law school world, to
24 my knowledge, are people who do best, people ironically who if
25 they were just admitted on the basis of test scores and
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1 undergraduate grade point average, would be admitted just by
2 some, you know, arbitrary cutoff. And that's a really
3 intriguing finding.
4 I'm also way, for example -- let me just tell you a
5 little bit of a study I find fascinating. This was a study
6 done by Dick Nesbitt and Claude Steele at the University of
7 Michigan.
8 Q Well, excuse me for interrupting, Professor Lempert, but
9 if we're going to get into work by other people, I'd just like
10 to go on with these particular --
11 A Oh, okay, I was just going to tell you --
12 Q Well --
13 A About programs corrected for that. I don't -- I think if
14 you take special steps it may not happen, but you usually
15 don't.
16 Q Let me ask you to turn again to Professor Sandalow's work
17 at page 1877. Again, I'm going to direct you to the first
18 paragraph under -- it's entitled "The Shape of the Evidence"
19 and I want to take you down -- because he's talking about tests
20 here. It's the sentence that begins "At the outset" do you see
21 that?
22 A I'm sorry, 1877?
23 Q Yes, sir.
24 A Yes, okay.
25 Q "At the outset, however, many who supported
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1 race-sensitive admission policies believed, not
2 without reason, that those policies did not
3 discriminate on the basis of race. Traditional
4 predictors of academic success, it was commonly
5 argued, might not be accurate for blacks.
6 Admission tests, such as th SAT, were plausibly
7 believed to be culturally biased. Moreover, since
8 many blacks had attended inferior schools, their
9 failure to perform well on the tests might reflect
10 only an educational deficiency that could be
11 overcome by remedial courses at the college level."
12 He goes on.
13 "Although some proponents of racial preferences
14 continue to make such claims, experience gained in
15 the intervening years demonstrates their
16 invalidity."
17 Do you agree or disagree with your colleague,
18 Professor Sandalow?
19 A To the extent you're talking about this narrow of bias in
20 terms of validity, that predicting only grades and not some
21 system-wide bias, that is my understanding of what at least
22 most of the evidence shows. There is one article came across
23 my desk in the last two or three months I believe which
24 suggested today in law school that might not hold for
25 third-year grades. But that's my certain knowledge on that.
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1 Q Professor Sandalow also on a footnote four makes to work
2 by, among others, William Bowen, do you see that?
3 A Yes.
4 Q Are you familiar with the Vars and Bowen work?
5 A No, I'm not.
6 Q He also makes reference to Professor Wightman's work
7 which I believe is the study you referred to in your own study;
8 is that correct?
9 A Yes.
10 Q And I might just make note that on page 1897, Professor
11 Sandalow also references Professor Thernstrom's study in
12 response to Professor Wightman, that's footnote 56, but you
13 have not -- you don't recall ever reviewing Professor
14 Thernstrom's work?
15 A Actually -- you've refreshed my memory with your question
16 earlier, would I recall -- I can't say it's really terribly
17 wrong, but what I do recall is that I believe Thernstrom
18 quarreled mainly with material I never to in my examination.
19 They were talking about the last part of the study, about the
20 Bar Passage Study and what we can conclude from that. I
21 disagree with him substantially. But I don't -- I have
22 somewhat more of a memory now since you've asked the question.
23 Q The fact is, Professor Lempert, young men and women of
24 all races and ethnicities can do very, very well on the LSAT;
25 can they not?
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1 A Yes. I mean, obviously they do.
2 Q And young men and women of all races and ethnicities can
3 do poorly on the LSAT; true?
4 A And there is also ample evidence of that.
5 Q Fair enough. You provided us with some various figures
6 --
7 A Yes.
8 Q And these were figures one through -- I believe it's
9 nine, from Exhibit 230. I believe these were taken from pages
10 472 through 483; do you recall that?
11 A I believe that's right. I'll just trust your judgment.
12 Q Sure, sure. You called this -- well, what is the
13 technique? I called it the scattered plot --
14 A Yeah, that's a good enough word for it.
15 Q All right. And in each figure, as I understand this,
16 you've indicated there is an index score for each minority
17 graduate which is in the form of a triangle; is that correct?
18 A Each person, minority or white, is placed on this grid on
19 a place that's the intersection of their index score we
20 constructed and in this case, their percentage their percentage
21 of -- or what percentile they fall in -- what percentile their
22 own earnings would place them if they were the sole household
23 earner -- earning all earnings. Minorities are triangles and
24 whites are circles.
25 Q Sure. And I believe you make the point on page 471 of
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1 your report that in each of these figures, the index scores of
2 the white alumni for the most part -- and I'm going to quote,
3 "For the most part fall substantially to the right of the
4 scores of minority alumni." Would that be accurate?
5 A Yes.
6 Q And, of course, if we look at these figures we see how
7 they are distributed on each side of the mean line. I gather
8 that vertical line is the mean line on the index?
9 A It's the median line.
10 Q The median. I'm sorry, the median.
11 And's we see the pattern of how the pattern is laid
12 out, the difference between the average index scores between
13 the white and minority applicants on figure one; would that be
14 a fair statement?
15 A I'm sorry?
16 Q We see the difference illustrated on your chart --
17 A Yes, you can visualize where they are.
18 Q And if you go to chart number two, the same, we get the
19 same type -- we see what you've described as the substantial
20 difference --
21 A Yes.
22 Q -- between the index scores of the white and minority
23 alumni.
24 A Yes.
25 Q And then figure three -- and it goes on and on. Figure
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1 three, in fact, is quite clear; correct?
2 A I think they all are reasonably clear.
3 Q Now, let me ask you this, Professor Lempert, isn't it
4 true that when you sampled your white alumni you, in fact, over
5 sampled for low grade points?
6 A Yes, we did.
7 Q And this really isn't a representative of just a random
8 difference between white and minority alumni in terms of the
9 index scores, this is a sample between the minority alumni and
10 whites so you purposely over sampled for lower GPAs; correct?
11 A Yes, but I don't think it makes any difference in the
12 pictures you have here.
13 Q My question is simply this: If you had just randomly
14 drawn white alumni would what we see demonstrated on these
15 charts appear to be an even more substantial difference, if you
16 know?
17 A No, I don't think there would be a more substantial
18 difference. I mean -- I'm sorry, do you mean index scores?
19 Q Yes, sir.
20 A I'm sorry, index scores.
21 Q Let me back up just a second, Professor Lempert. I'm not
22 suggesting for one minute that there would be a difference
23 because I think that's what your study shows, index scores tell
24 us nothing about what any of us may ultimately go on to do.
25 I'm sure there are a lot of people in this courtroom who are
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1 very happy and agree with your work. They say, Professor
2 Lempert is right, he's actually talking about me. I didn't do
3 very well, but, hey, look where we are today.
4 A Sure.
5 Q So I'm not taking issue with any of that. My only
6 question is: If you randomly sampled the white alumni, would
7 you see an even greater disparity between the average index
8 scores for the minority and white graduates?
9 A Well, yes and now. Let me try to give you a feel for
10 this.
11 Q Sure.
12 A To some extent that's right. But if you look at figure
13 three, figure three -- and look at -- just glance at figure
14 one. The difference is when we over-sample by grade point
15 because there's been some -- either grade inflation or just
16 better students, which I'd like to think at Michigan, they get
17 better grades. So that there's a disproportion in
18 concentration of those people whom we've over-sampled because
19 of low grades in figure one. And that's why the average median
20 index score is lower for figure one.
21 We get to figure three, we see exactly the same
22 phenomenon in a certain sense even more so because I believe
23 you just pointed out, and yet figure three contains the least,
24 the smallest proportion of people who are over-sampled because
25 of low grades which is one of the reasons I'm confident the
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1 picture would be the same as we get to this point, it seems to
2 matter less and less. So it's not -- you know, figure one,
3 yes, there might be -- you know, the alumni of 1970s if we had
4 sampled randomly, the line would be over. Figure three would
5 be much, much less of an affect.
6 Q Does any factor apart from the LSAT and the undergraduate
7 grade point figure more prominently or more heavily in the law
8 school's admissions process?
9 A Does any factor figure more heavily?
10 Q Yes.
11 A For which student?
12 Q Any student?
13 A Well --
14 Q I mean, in terms of your -- applying your policy to all
15 of these alumni that you've studied, does any factor apart from
16 the LSAT and undergraduate grade point figure more prominently?
17 MR. GOLDBLATT: Your Honor, I have to object on the
18 ground that's vague. The record is clear that the policy went
19 into effect in 1992, and he's now asking Professor Lempert to
20 apply to alumni who graduated in the 1970s.
21 MR. PURDY: I'll withdraw it.
22 THE COURT: Very well.
23 MR. PURDY: That's fine. I'll withdraw the
24 question.
25 THE COURT: Fair enough.
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1 BY MR. PURDY:
2 Q One class, at least one class did come underneath the
3 policy --
4 A Right.
5 Q For that class did the undergraduate grade point and the
6 LSAT, did any factor in the admissions process figure more
7 prominently than the index?
8 A You know, I didn't admit the class, but I'll give you my
9 opinion which is for some students, yes, and for other
10 students, no. And I would have to read the file as the Dean of
11 Admissions does and decide what figures prominently in one case
12 or another.
13 Q Let me just see if I can clarify this. I ask you to turn
14 to page 90 of your deposition. Again, this is the August,
15 2000, deposition. It's page 90.
16 A Yes.
17 Q Line 17, Professor Lempert, if I could I'll just direct
18 you there. I asked you this question. I said.
19 "Q Professor Lempert, do any other figures or
20 factors figure more prominently or more heavily in
21 the admissions process at Michigan than LSAT and
22 UGPA?
23 "A Again, I don't know for a fact so I -- let
24 me just stop there, but I don't know that they
25 don't so I don't know."
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1 Is that your answer?
2 A No. I said something else because I was thinking as I was
3 speaking. I said there are other factors that figure more
4 prominently in some cases.
5 Q Well, and then let me -- let me take you to page 92, if I
6 could of your deposition, because I think there, in fact,
7 you're telling us about one. On line 10, and I'll just let you
8 look at that. But there you said,
9 "I think that there as cases in which character
10 figures more heavily."
11 Do you see that?
12 A Yes.
13 Q And you would agree, would you not, character has nothing
14 to do with one's race; correct?
15 A I think people of all character come in all shapes, sizes
16 and color, genders.
17 Q I mean, you're not going to evaluate someone's
18 application based -- someone's character based on their race;
19 are you?
20 A No. I thought I was saying that in a cute way, sorry.
21 Q Going back just for a moment to the SALT article, the
22 S-A-L-T, article. I suppose you call it the "Salt Equalizer"
23 is that correct?
24 A I don't call it anything. I don't regularly read it.
25 Q All right. We do know from your own study that the use
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1 of the LSAT and the index is not related to your graduate
2 success after law school; correct?
3 A That's what our study shows, yes.
4 Q And it's true, is it not, that you personally believe
5 that producing successful lawyers is more important than how
6 one performs in law school; fair statement?
7 A I think both things matter, but I do think producing
8 successful lawyer is the more important function of our school.
9 Q Professor Lempert, if you could establish a threshold, an
10 LSAT score or index -- well, strike that.
11 You could establish a threshold; could you not?
12 A You mean arbitrarily say there would be a threshold, I
13 could name a number, sure.
14 Q No, sir. I mean -- a meaningful. For example, back in
15 the '70s didn't the school have a score, for example, that it
16 determined was a score below which it wouldn't admit anyone?
17 A I think it did.
18 Q All right. And you could determine through looking at
19 the past admissions grids and evaluating the success of your
20 students, whether or not there was a threshold above which
21 anyone within that pool would be successful, you would be
22 reasonably likely to complete the curriculum; couldn't you do
23 that?
24 A You mean by "complete the curriculum" yes. If you mean
25 successful -- but that's yes, because you complete the
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1 curriculum. If you mean successful -- I'm not certain. To
2 talk about the policy which I believe existed in the mid '70s,
3 we did I recall have a threshold, but there were probably
4 people below that threshold who would have done well, and there
5 were people above it who would not do well. And one of the
6 things we did in our policy in '92, was, indeed, remove the
7 threshold. It doesn't mean that people with low index scores
8 don't have a very low chance of being admitted. I mean, if the
9 scores are low enough they do, but they're considered as
10 individuals. I gave you the Bangladeshi example of someone who
11 could be below any threshold I would imagine setting -- if I
12 were doing this in the 1970s. And I think it's remarkably
13 successful certainly as law student.
14 Q And you could always make those kinds of exceptions, but
15 there could be a threshold set below which you wouldn't admit
16 anyone except under exceptional circumstances. You could put
17 them in the pool, for example, but you could establish
18 threshold because you had one in the past; correct?
19 A Well, that's not a threshold. I mean, there could be --
20 indeed, it's not -- people look attractive, or unattractive
21 because of their entire requisite. The lower the index score
22 goes the less attractive somebody looks because the
23 predictability to law school grades. But that could be made up
24 for other considerations. And similarly the higher that one
25 gets the more attractive people look.
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1 Now, as I said earlier, if you want me to arbitrate,
2 pick a number, pick anybody, and arbitrarily say we won't go
3 below that number, and you'll both over-predict and
4 under-predict for people. You know, that can be done. It's
5 not a physical impossibility. But if you mean, I could
6 identify with numbers everybody who had no chance of
7 succeeding at all and divide them with everybody who is going
8 to succeed, the answer is now.
9 Q Professor Lempert, let me ask you to turn to page 167 of
10 your deposition, if I could, please. I want to direct your
11 attention to line 17, if I could. There, I asked you a
12 question, I said.
13 "Q Well, pick a threshold that would encompass
14 a large number of minority students if you will
15 why couldn't you do that?
16 "A We have -- we have talked about picking a
17 threshold based on likely performance. How many
18 minority students will be accomplished? I don't.
19 know. But we would nt be picking -- we would not
20 be picking a threshold designed to accommodate
21 minority students as we do now. We would be
22 picking a threshold designed to insure that
23 these were people who could benefit from a
24 Michigan education."
25 Let me go back and ask you -- that was the end of
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1 your answer. I want to ask you about your statement, when you
2 said, "We would not be picking a threshold designed to
3 accommodate minority students as we do now." Do you have a
4 threshold today --
5 A No, no. We accommodate minority students now through a
6 program that looks at them and considers race as one of the
7 many factors, not a threshold.
8 MR. GOLDBLATT: Your Honor, I would like to lodge an
9 objection here. During Ms. Massie's questioning of Professor
10 Lempert and during my questioning of him, we were quite
11 careful to limit our questioning to his study, his expertise,
12 and not to use his presence here, and not to go back and talk
13 about the admissions policy and how admissions decisions are
14 made and all that. And I think these questions that get at
15 how do the law school make admissions decisions is way beyond
16 the scope of what was presented during the Direct Examination.
17 MS. MASSIE: And I'll join.
18 MR. PURDY: Your Honor, this is quite clearly
19 directly on point. He's been talking about -- this is a brand
20 new finding that the index means nothing. And my questions
21 are relating, can you begin to use the index differently.
22 THE COURT: You may proceed.
23 BY MR. PURDY:
24 Q Professor Lempert --
25 A Just in fairness to me, again, you did quote out of
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1 context because this follows along some questions in which I
2 quite -- before I said that, I don't know what that threshold
3 would be. But -- and possible thresholds. You see the shape of
4 the curve nationally, that white student scores distribute
5 higher than minority scores. You have many, many more whites be
6 above the threshold than you would have minorities. So the
7 discussion here I think was whether something like I was
8 talking to you earlier, Judge, if we just set a level and
9 perhaps picked randomly or something, that we would get a
10 diversed class. I think -- my point here, we would not get a
11 diversed class.
12 BY MR. PURDY:
13 Q Let me ask you, let's do this, let's turn to page 494 of
14 your report, please.
15 A Yes.
16 Q Are you there?
17 A Yes.
18 Q I want to direct you to footnote 64 in your report, and I
19 want to read it.
20 "Bowen and Bok found in their study that there was
21 an SAT threshold above which test score
22 differences made little difference in
23 graduation rates. The same could be true of law
24 schools and LSATs."
25 Do you see that?
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1 A Yes.
2 Q Is that true?
3 A It's certainly true what they found in their study. It
4 is true the same could be true of law schools. But it doesn't
5 mean that there is a threshold. In other words what they had
6 was an increasing curve which then flattens out. So at some
7 point the curve is perfectly flattened when it comes to
8 graduation rates. And in that sense there is a threshold that
9 basically guarantees a hundred percent graduation, but right
10 below that is ninety-seven percent, ninety-six percent,
11 ninety-five percent and so forth. So I wasn't trying to
12 suggest anything but an empirical statement about the shape of
13 where you get when virtually everybody graduates.
14 Q Professor Lempert, let me direct your attention to page
15 171 of your deposition. It's the August, 2000 deposition.
16 Line 12.
17 A Yes.
18 Q "Let me do this. We are going to use an admissions
19 index, a threshold, but that's not going to
20 complete the pool." Strike that.
21 Let me say, we had previously been talking about
22 just simply using an index, and applying nothing else, and you
23 felt that -- for the reasons you told us earlier this morning,
24 that wouldn't be appropriate; do you recall that?
25 A Yes.
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1 Q All right. So then my question, beginning line 12.
2 "Q Fair enough. Let me do this: We are going
3 to use an admissions index, a threshold, but
4 that's not going to complete the pool.
5 "A Okay.
6 "Q Now, you are going to take everyone in the
7 admissions index above the threshold and you are
8 going to apply leadership, and essays, and letters
9 of recommendation, and now you are going to have a
10 pool and from that you select by a lottery. What's
11 the problem with that?
12 "A If at the end of that process the pool
13 contained a proportion of minority students such
14 that selecting at random would guarantee that in
15 my class I would see numbers of students such
16 that we would have a mix like we have today, I
17 would have no problem at all with the lottery.
18 Indeed, I would probably argue for it because it
19 would be simpler than anything else at that
20 point."
21 Did I read that correctly?
22 A Yes, you did.
23 Q And that was the answer you gave to that question in
24 Wilmer, Cutler, Pickering's office back on August 10, 2000; is
25 that correct?
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1 A Yes.
2 MR. PURDY: That's all I have, your Honor.
3 MS. MASSIE: Could I have a couple of minutes,
4 Judge?
5 THE COURT: Pardon?
6 MS. MASSIE: Could I take a couple of minutes?
7 THE COURT: You want some time to --
8 MS. MASSIE: Yes.
9 THE COURT: Okay. Go on. I can't go off the bench
10 because it's too early to take an afternoon recess.
11 REDIRECT EXAMINATION
12 BY MS. MASSIE:
13 Q Just a couple of questions, Professor Lempert. First,
14 Mr. Purdy raised the Detroit College of Law, do you know
15 whether DCL has an affirmative action program?
16 A It's my understanding that the four longest enduring
17 colleges, law schools of the state all have affirmative action
18 programs.
19 Q Secondary, this was an exchange that you had with the
20 Court, in our -- I just want to go back to a point that came up
21 there. In our society today can you consider a person as an
22 individual? Can you carry out a kind of whole person review of
23 any person without taking into account race?
24 A I think you qualified me as a sociologist and I'll to
25 answer that as a sociologist. I think we're all attentive to
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1 issues of identity. And people bring with them whole persons,
2 who they are. I think just as with gender you react to people
3 for who they are. Race is one of these salient characteristics
4 that you are just aware of it, you react to, you know, whether
5 you want to or not. There's this -- interestingly in sociology
6 one of the really hot areas is white in the studies because so
7 many people are white and so many of the sociologists are
8 white, people were figuring no white is not part of identity.
9 But a major, you know, almost finding is that, indeed, people
10 react to whites differently, and whites react to other whites
11 differently. So I think people bring especially racial and
12 gender identities to virtually everything they do.
13 Q So in other words, you can't just take race out of who a
14 person is?
15 A There's several ways you can't take it out. One, is you
16 can't take it out in just -- probably for most of us, me, by
17 ignoring it, somehow bracket it because I don't think we know
18 all the ways we react against anybody, gender included. But
19 another way you can't take it out is the meaning of behaviour,
20 can be different for people of different races. It means
21 something different when a person of one race say engages in
22 behaviour of one sort. It's one thing, for example, for a
23 white person or for, say -- it's one thing for a black person
24 to come out against racism, and it's something else for a white
25 person to come out against racism. They both may be saying the
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1 same thing. Both may be coming out against racism, but when
2 you consider the remarks you're going to aware of somewhat
3 different feelings. With the white person, there's no sense,
4 well, whatever they're doing is because they needed the
5 advantage because they felt past discrimination because of
6 their race. So just the meaning of action is linked to racial
7 identity.
8 Q I just want to make sure the record is clear, partly
9 because of the way you said "can't" with an apostrophe "t"
10 sounded to me like "can" and I want to make sure --
11 A Can't.
12 Q -- it's right in the record. We cannot abstract race
13 from our individual experiences, identities, achievements, and
14 so on.
15 A I think as a general rule that is true. I wouldn't say
16 in certain settings -- I mean, I used to play lots of ping
17 pong, and I think if I were really involved in a ping pong game
18 it wouldn't matter, you know, what the person across from me
19 looked like, I'd just be so involved. But I think in most
20 settings and certainly in decision-making settings, it is
21 difficult, if not impossible.
22 Q Or to subtract if you're looking at an applicant in the
23 prospective -- a view of looking at an individual, but from the
24 prospective of an individual, herself or himself?
25 A I think -- as I said some of the new sociology is trying
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1 to look at how people interpret things, how their race or
2 gender, or sexual preference, various other components of
3 identity affect how they perceive what happened.
4 Q And race is one of the truly fundamental ones for us in
5 this society, at this point in time.
6 A It certainly seems to be.
7 Q Another area, Mr. Purdy pointed you to the -- I'm not
8 going to direct you to the page, but he pointed you to a
9 section of your report where you had numbers higher than
10 twenty-seven percent. You were talking about the percentage of
11 variance in grades explained by index scores. Can you explain
12 the difference between the twenty-seven percent that's found in
13 the admissions policy, which is as I understand it means about
14 three quarters of the ranges or differences in first-years
15 remains unexplained by the index, on the one hand, and the
16 higher numbers that Mr. Purdy was directing your attention to
17 on the other hand.
18 A My guess it's just statistical fluctuations. If you look
19 at one class, there may be something that's different than if
20 you look at all sorts of classes. There also may be a range
21 restriction effect. The narrower of the range within one
22 class, there is likely to be a narrower range of credentials
23 than there are when you look at all the classes taken together.
24 So I think it's just a statistical artifact. I could be wrong,
25 but I can't think of a better explanation.
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1 Q In other words, you were doing it for whole decades in a
2 section that he was directing you to.
3 A Right.
4 Q So if we could get over fifty years, we might gain a
5 couple of percentage points, or we might lose a couple; is that
6 right?
7 A Well, yeah, but again I can't tell you yes or no. I
8 guess it's possible, but --
9 Q But the information that you have on the index and its
10 prediction of first-year grades at Michigan remains that three
11 quarters of the variance in the first-year grades are not
12 explained; correct?
13 A Well, it depends on what cohort you're talking about and
14 -- but, in all cases more than half of the variance remains
15 unexplained in the first-year grades.
16 Q Another area, you all were just talking about thresholds.
17 I want to ask you a couple of preliminary questions. First, of
18 all, it's not psychometrically valid to use a hard threshold;
19 is that true?
20 A I'm not a psychometrician. That's my understanding. I
21 think that's beyond my expertise there.
22 Q In fact, it's not legal in -- at least in one federal
23 district, based on a recent federal district decision coming
24 out of Pennsylvania to impose a threshold and use any kind of
25 admissions test with a hard threshold; correct?
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1 A I cannot --
2 MR. PURDY: Your Honor, I'd have to object --
3 THE COURT: Sustained.
4 BY MS. MASSIE:
5 Q A person's score can vary by several percentiles like if
6 you take the test one day to the next; correct?
7 A Ordinarily it does. It can actually vary by much more
8 than several percentiles. Again, emphasizing the word "can"
9 without the apostrophe.
10 Q Finally directing you back to your deposition, on pages
11 171 into 172, reading from the bottom of 171.
12 "If at the end of that process the pool contained a
13 proportion of minority students such that
14 selecting at random would guarantee that in my
15 classes I would see essentially the same number of
16 minority students I see now."
17 What would you have to do to make that hypothetical
18 true?
19 A I don't see how we could do it without attending to race.
20 Also, I like to correct that. I think -- it may be
21 just my fault for being dumb, but maybe this was in the
22 context of only dealing with the diversity issue as oppose to
23 accomplishment. But I do want to say if I said that without
24 specifically referring to the diversity issue I think that
25 does apply, I would have to say today because of what I
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1 testified to earlier, I think it's terribly important is that
2 the people we do admit and the people who are responsible for
3 our no findings of no effect, are selected on a whole host of
4 criteria. As I said earlier in my direct examination that I
5 think we did select randomly even above, you know, the kind of
6 threshold and, you know, what we've selected for all the
7 various -- I actually take that back. If you really mean we
8 would do everything that we do today, we look at the whole
9 person, and do the impossible of separating out race, hen my
10 objection is that we would not get any kind of diversity,
11 meaningful diversity on ethnic grounds.
12 Q And that's because of the different distributions in the
13 applicant pool; correct?
14 A Yes, it's because of the skewness of the distributions.
15 I mean, we've already talked about the Wightman Study that
16 something like twenty-three percent of minority applicants
17 would even get admitted to any law school. So if Michigan kind
18 of said that -- when we compare the whole person and kind of
19 compare LSAT we actually gain absolutely no weight. So we
20 don't care no matter what the LSAT and undergraduate grade
21 point predict to, everybody is in the pool as they get in on
22 other grounds. Part of the whole person is the test score as
23 well. If we did that, and we said the only time we'll do that
24 is they wouldn't get into any law school, then they're not --
25 the scores aren't high enough for us. So that's the only place
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1 -- we would be cutting our pool in half already. I mean,
2 cutting the whole admissions pool.
3 I'm afraid I'm not being terribly clear.
4 Q Let me -- assuming incorrectly for the sake of argument
5 that if it were psychometrically and legal valid to have a hard
6 threshold, you wouldn't be able to obtain -- to have a class
7 that had any degree of integration in it at the University of
8 Michigan Law School if you used that method; correct?
9 A You're absolutely right.
10 MR. PURDY: Excuse me, I was going to object on lack
11 of foundation and speculation.
12 THE COURT: He's already answered.
13 MS. MASSIE: And he was also asked about it on cross
14 at some point --
15 THE COURT: Go on.
16 BY MS. MASSIE:
17 Q Finally, Professor Lempert, Mr. Purdy was directing you
18 to the overall differences and the aggregate and index scores
19 of white and minorities looking at those scattergrams?
20 A Yes.
21 Q And I just want to ask you again, based on your study is
22 there a double standard, has there been a double standard in
23 admissions at the University of Michigan Law School?
24 A No, both based on my work -- I shouldn't get into that --
25 but based on the study there is absolutely no sign of a double
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1 standard. It appears that in every case we're considering all
2 the strengths of an applicant. We're doing a pretty job I
3 think admitting strong people.
4 Q And, indeed, if affirmative action were to be eliminated
5 at the University of Michigan Law School, would there be a
6 double standard in admissions of necessity given what you've
7 testified to today?
8 A In the sense there be no consideration of some of the
9 potential achievements of some people because some of those
10 achievements are linked to race or hampered by race, in that
11 since I suppose you could say there would be a double standard,
12 but certainly it wouldn't be fair I think between whites and
13 blacks.
14 Q It would not be fair.
15 A I would not think so.
16 MS. MASSIE: Thank you.
17 MR. GOLDBLATT: I have nothing else, your Honor.
18 THE COURT: Professor, thank you, very much.
19 THE WITNESS: Thank you, very much. It was a
20 pleasure to be in your courtroom.
21 THE COURT: Glad to have you, twice.
22 THE WITNESS: Unfortunately, I was the only one who
23 inflicted you with a double whammy.
24 THE COURT: I enjoyed it. Thank you.
25 (Witness excused.)
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1 THE COURT: Next witness.
2 MS. MASLEY: Jodi Masley,for the record.
3 T A N I A K A P P N E R ,
4 being first duly sworn by the Court to tell the truth, was
examined
5 and testified upon his oath as follows:
6 DIRECT EXAMINATION
7 BY MS. MASLEY:
8 Q Ms. Kappner, could you state and spell your name?
9 A Sure. My name is Tania, T-a-n-i-a, Kappner,
10 K-a-p-p-n-e-r.
11 Q And could you tell us your address?
12 A I live at 843 60th Street, Oakland, California, zip code
13 is 94608.
14 Q What is your occupation?
15 A I'm a teacher at Oakland Technical High School, an
16 English teacher.
17 Q Do you have any direct experience with graduate school
18 post affirmative action in California?
19 A Yes, I'm a recent graduate of the master's and credential
20 program at the UC Berkeley Graduate School of Education.
21 THE COURT: Credential program, I'm not sure.
22 THE WITNESS: Yes, I have both a credential and a
23 master's in education from UC Berkeley.
24 THE COURT: Maybe you could tell me what credential
25 is. I don't know what it is.
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1 THE WITNESS: Oh, in order to teach, by state you
2 need to have a teaching credential --
3 THE COURT: Oh, I see. A license.
4 THE WITNESS: Yes.
5 THE COURT: It's requirements for a license.
6 BY MS. MASLEY:
7 Q So you have both a teaching credential and a master's.
8 A Yes, I graduated this last summer, last spring, from UC
9 Berkeley through the master's program. It was a program
10 specifically for English teachers that wanted to teach -- it
11 was the multi-cultural urban studies and education program,
12 yes.
13 Q And can you describe something about the nature of that
14 program?
15 A Yes, well, it was a program for people that wanted to
16 teach students in urban areas in cities like Oakland which is a
17 predominantly black school district right next to Berkeley or
18 in San Francisco, throughout the bay area. Really anywhere in
19 the state of California. Some people want to teach in Los
20 Angeles. The program was specifically designed to study issues
21 in urban education, learn methods of teaching in urban
22 settings, and create teachers that would provide leadership to
23 students and to other teachers in city schools throughout
24 California. So it was both a credential and master's program
25 with a highly theoretical focus.
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1 Q Okay. Do you know a Dean Eugene Garcia?
2 A Oh, he was the Dean of the School of Education while I
3 was there, yes. He oversaw our graduation.
4 Q Okay. Dean Garcia testified in this case that there were
5 precipitous drops in the numbers of minority students post the
6 ban on affirmative action and in graduate programs at UC
7 Berkeley. What did your program look like?
8 A Well, I was the only black student in the program which I
9 found really outrageous considering that most of us were
10 planning to teach in school districts that were majority black
11 and Latino, and serve minority students. There was one Latina
12 in the program, one Asian woman from Vietnam, and the rest of
13 the program was white.
14 THE COURT: These were all the same students that
15 wanted to do the same thing you did?
16 THE WITNESS: Yes, this was the urban education
17 program, the program for teachers that wanted to teach in city
18 schools. We were all those who wanted to be English teachers
19 in cities throughout California. And I took a number of
20 classes also in education school that incorporated students in
21 other programs and some undergraduate students, and I remember
22 being the only black students in those classes as well which
23 were bigger classes.
24 Q Did you encounter racism in this program?
25 A Absolutely. I mean, everybody in the program was
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1 committed to integration and wanted to serve all students
2 equally, but everywhere I went there was the stigma that comes
3 with being the only black student on me in the sense that I had
4 constantly the pressure of having to work extra hard just to be
5 considered equal or half as good. And there were repeatedly --
6 especially in our urban education class, repeatedly racist
7 theories or misconceptions that came up that I had to argue
8 against in class. There was constantly on me the pressure
9 defending the basic equality of the students I had been serving
10 teaching in the bay area, in Oakland for years that
11 specifically -- there were theories, you know, both -- linked
12 to biological theories. There were theories saying that black
13 students, you know, didn't care as much about education or
14 there were theories, you know, claiming that the reason for
15 segregated conditions of education in places like Oakland were
16 based on some fault of black families or black people
17 themselves. And these were just complete misconceptions, just
18 the exact opposite of everything I had experienced teaching so
19 far, the determination of the students black and Latino and
20 Native American, all the minority students to get an education,
21 to have a future was so compelling to me, and was so
22 unequivocal, was something -- just the very fact that I had to
23 constantly assert that basic fact in these classes was a burden
24 and a stress on me that I think no one else in the program
25 felt. And really it distracted me in many ways from focusing
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1 on what I could get out of the courses in terms of learning,
2 teaching methods or implementing, finding ways to implement the
3 theories we were discussing because constantly I had to just
4 basically assert the equality of the students, debunk a lot of
5 the racism and stereotypes often from very well-intentional
6 students that wanted to be teachers, but that just simply had
7 grown up never being around black people or Latino people, that
8 simply had no experience in these schools, and simply had no
9 one else in the classroom to look to, to answer these questions
10 other than me. So I felt I had to take up that responsibility,
11 and I did. But it just meant that there was just a pressure on
12 me as a black student that I know was not faced by any of the
13 white students that were going there to get an education. We
14 were there to get an education. And I felt that my job became
15 to give an education to everyone in the program which I was
16 prepared to do because I am committed to making sure that we
17 have, you know, teachers throughout California that understand
18 honestly the determination of these students, but it was a
19 struggle for me. Every day was a struggle for me in the
20 program.
21 Q And I have two questions following out of your answer.
22 One of them is -- you said that many of the students were very
23 well meaning, is it the case they didn't even realize what
24 their assumptions amounted to, but they amounted to assumptions
25 about the inferiority of black and Latino students?
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1 A Yes, that was the case. These were people that saw
2 themselves as committed to integration, but were -- as I said,
3 grown up completely under segregation and had assumptions that
4 were just absolutely wrong about the black and Latino students.
5 And a lot of the material we were reading in the classes was
6 about supposed different cultures of different ethnic groups
7 and things like this. And there was just a complete lack of --
8 a lack of understanding of the reality in a situation of the
9 very students that we were to be teaching. I mean, it just
10 seemed completely unrepresentative that I would be the only
11 black student in this program. And I would be the only, for
12 example, placed in the city of Oakland to student teach because
13 I, you know, requested it and demanded it.
14 Q And you said in your testimony that you had been teaching
15 for some years already. Can you just tell us how many years
16 you've been teaching?
17 A Yes, seven years.
18 THE COURT: You were teaching in the school -- we
19 heard from Dean Garcia that they have teachers in certain
20 schools that were not certified, I guess --
21 THE WITNESS: I went back to school after several
22 years to get my credential, and I was working part-time also
23 substitute teaching while getting my credential, but also
24 student teaching through the credential program at another
25 school.
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1 THE COURT: You weren't here when he testified, I
2 don't think, but he testified that there were a lot of
3 teachers in the urban areas that were, I guess, not credential
4 or whatever his word was, you were one of those at that time?
5 THE WITNESS: Yes.
6 BY MS. MASLEY:
7 Q Did you feel like you were able to successfully counter
8 the racism and the stereotypes in your program?
9 A In some ways yes, and in some ways no. There was some
10 progress made in the understanding of other students in the
11 class because I explained things and tried to give examples and
12 tried to point them to the truth of situations that were coming
13 across that were completely new or that they had assumed
14 prejudices they were unaware of, but I tried to, you know,
15 debunk and lay bear. So in some ways yes, but in some ways no
16 because the whole context was rather irrepresentative of the
17 real situations that we would teaching in soon after and even
18 to some extent for me during that. I mean, I think that
19 there's a way in which you can only get rid of prejudice by
20 engaging with others and by seeing the real equality of
21 students by being there in the classroom with them, and also by
22 having peers that are, you know, intelligent and determined
23 black people and Latino people. And, yes, as the one, I could
24 do some mitigation, but I felt that I had to chose my fights
25 also in order that I could make it through the program. And
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1 there certainly were times where discriminatory views or
2 ignorant views did not get counted where they certainly would
3 have if we had a more intergraded class setting.
4 Q In that way do you feel that your education suffered?
5 A Yes, it did, but not just my education. I mean,
6 everyone's education in the program because -- I mean, we all
7 came to this program wanted, you know, to be in a school that
8 looks like California, that the state that we are going to be
9 serving and that we are serving as teachers. I mean,
10 California is majority Latino at this point, I believe, and
11 certainly has many more black students than were represented
12 proportion -- we were under-represented in the program. So I
13 think that had a negative impact on all the students. People
14 -- we had many different experiences coming into the program,
15 but the problem was that -- the problem was that my experience
16 was so different coming into the program that I felt I was made
17 to be the outsider in some ways although I did certainly, you
18 know, stand up against that and take some leadership and that's
19 what really got me through the program was understanding that I
20 was going to, you know, contribute to changing the situation,
21 building the new civil rights movement that was growing on the
22 campus at the time in support of reversing the ban on
23 affirmative action and winning more integration for the
24 University. The students supported that, and we were united in
25 that sense, but my education certainly did suffer as did
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1 theirs.
2 Q Do you think you felt less isolated than other black
3 students might have in your situation?
4 A Well, absolutely because I had already had a tremendous
5 amount of experience and confidence that came from having been
6 a leader both in the schools, in the teachers' union which I'm
7 involved with, in the struggle for affirmative action that had
8 been developed nationally, that I had been involved with for
9 several years before attending UC Berkeley, and I had a sense
10 of that confidence that I know many other black students that
11 I've met that just went through school, as that individual,
12 without the strength of, you know, source of strength and
13 support that that civil rights movement meant for me, that the
14 civil rights movement meant for my students.
15 Just going through school on your own, I can't even
16 picture it -- it would be such a different experience than the
17 kind of experience I've had as a leader in that school. I
18 mean, I guess, the best way to describe it is just one
19 specific example. At the time that I was -- in my second year
20 of the program, I was -- in second year you're already are
21 teaching, and you're working on your master's. And I ran for
22 the school board for the neighborhood that my school that
23 Oakland Technical High School is in. And that experience just
24 completely transformed me and gave me a confidence that I
25 think I brought to the classroom that I wouldn't have had had
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1 I not been a leader in Oakland and at Berkeley and seen myself
2 as trying to bring together those two communities.
3 I mean, basically what happened was that my students
4 became very involved. I was running as someone that was an
5 affirmative action activist that did want to establish, you
6 know, real desegregation programs and resources for the
7 Oakland schools and that did want to make sure we spent, you
8 know, the real funding on the schools but that we really
9 integrated those schools and the students, you know, were
10 going door-to-door telling everyone they should vote for me,
11 or just completely inspired and came alive to see -- because
12 it made them have a sense that they -- you know, if they made
13 this fight they could get into UC Berkeley, and that it was
14 important that I was someone at UC Berkeley kind of both
15 bringing that to Oakland and getting that sense of strength at
16 Oakland. I guess that's the best way I can describe it.
17 I had a tremendous kind of full sense of confidence
18 and authority in my program that came from that, and the fact
19 that I was a leader which I don't think -- I think -- I mean,
20 I just know so many black students that have gone through UC
21 Berkeley the last few years that just felt really devastated
22 by the experience, that just felt, like, you know -- you know,
23 just isolated. And if they -- like, they had to keep their
24 head down and just kind of make it through a really kind of
25 traumatizing experience. My experience was different because
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1 I was a part of the movement to change the situation at the
2 campus.
3 So yes it would be very different had I not been
4 making the fight I was making at the time.
5 Q You've made it clear that you're a leader in the movement
6 to reinstate affirmative action in California. What drives
7 your determination to do it?
8 A Well, my students. I mean, we have to have, you know, a
9 future of equality and they're very committed to that. I mean,
10 their whole sense of their possibility, and their right to
11 receive and to get a higher education and to really have a
12 future where they can be, you know, the next generation of
13 lawyers and doctors and teachers and professors and where they
14 can have an equal stance. Their determination really is what
15 makes me know that I have to continue this, and that they are
16 just so, like, brilliant and talented and just the very fact
17 that without affirmative action it's like a total blow, like
18 their hopes were just dashed.
19 I mean, there were eight hundred black and Latino
20 and Native American students that have really high test scores
21 in everything that didn't get into the UC system, the UC
22 Berkeley in the wake of taking away affirmative action. And
23 that was just completely devastating to them. And really just
24 seeing that we can change that and then -- they just have
25 really come alive as part of this effort to put California
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1 really again in front of progress, and democracy. They have a
2 sense of that, and so that's what really like keeps me going
3 and makes me know I have a real role to play as a leader in
4 this as well.
5 Q What does it mean to your students that you got a
6 master's at UC Berkeley?
7 A I think it's important. I think it's kind of unique to
8 them in that I think I certainly -- I'm one of the only people
9 in Oakland in that situation, a young black woman. And I think
10 it's important to them, but they also do have a sense that it's
11 kind of an unique thing. I think that -- what I try to convey
12 to them is that, you know, this can be them as well as, and
13 that we have some work to do to make that happen. That they
14 absolutely deserve to have the right to go to any institution
15 of higher education, the best, any institution of higher
16 education. I think it's important to them, but I think that
17 they know that if we don't reverse the ban on affirmative
18 action that I may be the one, you know, the whole generation
19 and that's not sufficient because there are so many brilliant,
20 talented students that should be able to become teachers in
21 Oakland or anywhere they want to.
22 Q Or any thing they want to.
23 A That's right.
24 Q You said that you teach English?
25 A Yes, I teach ninth and tenth grade English.
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1 Q What is it like teaching in your classroom?
2 A Well, it's challenging in a lot of ways just based on the
3 conditions, you know, in the schools. Like, my classroom, it
4 used to be an auto shop. And it was converted into a classroom
5 a couple of years ago, when I first started at the school. So
6 there's a like metal door that rolls down over the window. And
7 there's like a hole underneath the carpet. I'm always worrying
8 about someone's foot going through it. I've been requesting to
9 get it fixed since I started working there, but still hasn't
10 been. So there's a lot of -- it also gets real hot in there.
11 There's something wrong with the heating situation, and it's a
12 small room. So, you know, when you have thirty-five -- the
13 sophomore classes are in the thirties, the numbers, and we're
14 kind of packed in there. So that makes it harder. But the
15 students are very lively and engaged, you know, creative, and
16 -- real critical thinkers. So, I mean, we have -- usually a
17 lot of fun and a lot of good discussions. Some real learning
18 goes on, but it's really constricted by the circumstances.
19 I mean, for example, the fact that I can never get
20 enough books, of one set of books to teach all three of my
21 sophomore classes at once. So I spend a lot of hours at times
22 Xeroxing books. Sometimes the copying machine breaks down a
23 lot. We have two big copying machines in the school, you
24 know. They can't properly take home a book. There's not
25 enough books, materials in the school. That causes a problem.
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1 Like right now, we're working on the one set of
2 books for three classes and, you know, a couple of students
3 have taken home the book, but they're not suppose to take home
4 the book because we don't have enough books. So, I find myself
5 in kind of a conflict, problem as a teacher. I certainly
6 don't want to yell at students for wanting to take a book home
7 to read, but then we're stuck with fifteen books for a total
8 of a hundred and five students of sophomores for that day and
9 it's a problem.
10 So there's a lot of restrictions. I mean, I just
11 think -- the students' sense of, you know, they want an
12 education and they want to learn, but they're also affected by
13 how much of a future do they think they'll have, like, how
14 much is it worth -- I mean, is there a future for them beyond
15 the school or not? They think of that a lot, and they kind of
16 debate that. And it impacts them, what's going on in
17 California, impacts them. So it's kind of contradictory in
18 the classroom.
19 Q You seem very close to your students.
20 A Yes, I would say I am.
21 Q How do you attempt to counter-act the negative blow
22 delivered by the ban on affirmative action?
23 A Well, I mean what's happening right now is -- I mean, I
24 let my students know the situation honestly. I tell them, you
25 know, that they have a right to go to Berkeley, but that, you
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1 know, there's less than half as many black students as there
2 were before, just a few years ago. You know, I tell them the
3 truth, but I also make it quite clear that, you know,
4 throughout the history it's been, you know, stances for
5 equality, and movements for justice that have forced the
6 positive changes and have made sure that, you know, the rights
7 ensured by the government are acted on. You know, just as it
8 was young people in the first civil rights movement that
9 really, you know, stopped segregation throughout the south and
10 brought that question to the attention of the whole country. I
11 mean, it is -- they are the future. And that this growing that
12 they are a part of can change everything and can shape the
13 future.
14 And, so basically, we've participated in Days of
15 Action for affirmative action at UC Berkeley. About a hundred
16 of my students wanted to go and came and participated in the
17 high school civil rights meeting and rallies and so on up
18 there. They talked to other students about it. They talked
19 to other teachers about it. Right now there's a March 8th Day
20 of Action coming up at UC Berkeley that they're very excited
21 about participating in. We have about eight teachers from my
22 school that are planning on going with students now. And
23 about fifty teachers from around the area that want to
24 participate with their students. And basically we just work
25 together to make sure that, you know, equality is implemented,
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1 that we have access to higher education and to their futures.
2 I've been mobilizing them I guess is the way to put it.
3 Q What do you intend on the March 8th Day of Action to
4 accomplish?
5 A To reverse the ban on affirmative action at UC Berkeley,
6 throughout the UC system; to stop the resegregation that has
7 been proceeding since it started; to, you know, make clear that
8 the majority of California supports equality and that
9 affirmative action and positive measures for integration are
10 necessary to ensure the quality.
11 I mean basically to make -- we have about, gosh,
12 four hundred UC professors that are signed on, organizing for
13 the day right now. I mean, the California Teachers
14 Association of California which represents like three hundred
15 thousand teachers is endorsing and organizing for it. A lot
16 of the different civil rights groups -- I mean, basically just
17 that we want to have a date where we all stand together for
18 the future, for integration, for affirmative action, and that
19 we intend to win, and we are going to win. I'm quite confident
20 because, you know, the regents meeting is just a week after
21 that day. And they know. They know that people just will not
22 take it any more. That we've felt like we've been shoved to
23 the back of the bus and that's just no place to be, and we
24 won't be there. So we intend to win affirmative action back
25 for California, and put us, you know, at the front of the
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1 nation, as a leadership state.
2 Q Do you believe that thousands and thousands of students,
3 high school students, in California and Michigan will be
4 participating on that day?
5 A Yes, it's quite clear and it's very exciting. They're
6 very excited about it. Everybody is very excited about it.
7 Teachers, students, college professors, and people across the
8 state. I mean, we're just getting, like, endorsements for the
9 day faster than we can count them. You know, the e-mails are
10 coming in. People are signing on. People are circulating.
11 We've had thousands and thousands of people throughout the
12 state of California sign a petition to reverse the ban on
13 affirmative action. I mean, there's just a real -- I mean, in
14 California -- I mean, it's like when they first banned
15 affirmative action in California, people felt, you know, so
16 hopeless, but because of the determination of the students,
17 both the college and the high school students, and really how
18 that's impacted everybody, there's just been ongoing protests
19 and events, and mobilization and just determination to win it
20 back like students didn't give up, you know.
21 And now that's really changed the whole situation. I
22 mean, right now in California I mean I just tell you I expect,
23 you know, the middle of March for there to be jubilation
24 across the state because we are going to reverse the ban. I
25 mean, the situation and the tide has really turned.
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1 I mean, the majority of people are really coming
2 out, loud and clear for affirmative action across the state
3 right now. And it's just a tremendously exciting moment, and
4 it's clear that there are going to be thousands of folks from
5 around the state at UC Berkeley, but also they're organizing
6 their own events, on their own college campuses, in their own
7 work places. I mean, there's a real kind of sense that we're
8 all in this together, you know, now.
9 Q And are those students, the high school students, the
10 college students, and also the teachers, and the professors are
11 they coalesced into an organization?
12 A Well, I mean, yeah, the coalition to defend affirmative
13 action and integration and fight for equality by any means
14 necessary has really been the group that's been leading the
15 charge, and all the efforts, you know, to win affirmative
16 action back around California. So there's definitely that, and
17 that's like spreading like wild fire, but it's also just --
18 it's so broad. Everyone in the organization wants to be
19 involved at this point. So it's not just one, but I would say
20 the ban really is, you know, done the most to lead things. But
21 it's pretty general right now. Everybody wants to, you know,
22 wants to make this history because it's just been so wrong,
23 what's happened.
24 Q Some might say that this is an unorthodox teaching method
25 bringing your students out to demonstrations at UC Berkeley.
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1 It sounds like it's the antidote for California, it's what
2 California needs. Why does doing this improve the confidence
3 of your students and their relationship to the classroom?
4 A Well, I mean, I mean, real learning. I mean, you have to
5 be actively engaged with the world to really learn. I mean,
6 there -- they have a sense that they -- okay, when we go up to
7 UC Berkeley it's like the college students are just so
8 thrilled, you know to see high school students there, and the
9 determination of the high school students really has an impact
10 on the college students, and the college students really
11 inspire the high school students. But really I think the
12 students see that they're leaders, just makes -- it's like
13 they're just asserting their rightful place, and it just builds
14 their confidence so much to see that what they do matters, that
15 they are changing history.
16 I mean, I can't tell you how much work and care
17 students have put into like writing their speeches, you know
18 -- I'm an English teacher, you want to go through and talk
19 about revision, and -- I mean, I've just seen the most
20 phenomenal things written, just the most clear, determined,
21 well-phrased, thought-through -- you know, can't believe my
22 eyes, but can convey just exactly what they want to mean. I
23 mean, I just think that they are just engaged in their -- this
24 is how they engaged in learning, but also because there's no
25 point if we don't do this. I mean, as brilliant as you are,
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1 as hard as you work through the Oakland schools, and as much
2 as my students try, if we don't make this change, they don't
3 have a future. So, I mean, I think for any teacher, you know,
4 we want our students to have future opportunities. So we have
5 to do this.
6 Q Can you say a little bit more about how the Berkeley
7 students respond to your students being at the campus?
8 A Well, it's really noticeably different on the day when --
9 you know, I mean, affirmative action events. I mean, just -- I
10 think it really makes Berkeley students just like proud and
11 excited about the fact that they're building the fight for
12 affirmative action and integration, but also it's just like,
13 gosh, on a regular day when you walk through Spraw (sp) Plaza
14 at Berkeley, you know, these days, you might see one black
15 student or two black students within like an hour or two hours,
16 you know. But on these days, it's like we all stand together
17 and -- I mean, it's like, you know, as I said before, mostly
18 black youth from Oakland coming, but students of all races on
19 the campus, you know, on a primarily white campus at this
20 point, but all of us standing together just means something to
21 everybody. I don't know if I can explain it more than to say
22 that people feel a sense of -- like our capacity as human
23 beings comes out. I mean, the college students are inspired by
24 the high school students, but it's more than that. It's like
25 we have a sense of our common future when we're all there
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1 together, you know, standing up together, to change, you know,
2 to stop the attack on affirmative action, but really to assert
3 equality.
4 Q Does that, to you, represent a bit of the social power
5 and potential integration holds?
6 A Well, yes, that's exactly what it is. I mean, it's a
7 very powerful thing. I mean it just changes your whole life,
8 to see these divisions between different folks can actually be
9 broken down, that we can actually forge a common future, that
10 we could have actually have a university that looks like
11 California if we come together. I mean, I think it's a very
12 powerful feeling. It's a very positive feeling. And it's
13 really a very democratic feeling. I mean, this is like when
14 your life -- this is what this country is suppose to be about.
15 This is like actually everybody in it together. And it is only
16 -- in my experience, it's only like intergration that can give
17 you that sense.
18 Q Do you believe that UC Berkeley ought to look like
19 California?
20 A Yes, absolutely. It's a public university. It should be
21 serving the public of California, all the public of California.
22 It should not be two-tiered. I mean, what's just been so
23 devastating to students, you know, is this sense of two-tiered,
24 you know, pushing minority students and under-represented
25 students specifically out of the best universities and saying,
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1 oh, well, shouldn't you be happy to have some kind of college.
2 Well, I'm sorry, you know, a community college education
3 doesn't give you the same opportunities as UC Berkeley, and we
4 should have the right to college education at all levels. So
5 -- you know --
6 Q Have other teachers at your school begun to adopt your
7 teaching method?
8 A Well, yes -- it doesn't take -- I mean, it's kind of
9 natural. I think, really, it's just -- I think all I've done
10 is provide some leadership to what other teachers have already
11 felt because everybody wants to be involved and actually, you
12 know, in representing the students' interests and uniting with
13 the students and doing something positive. I mean, just --
14 yeah, a lot of teachers have wanted college students to come
15 make presentations in their classes; have wanted to take field
16 trips to action days and events; have been, you know -- it's
17 like showing Black History Month, it's like, we're doing the
18 same thing. We are really changing the world. And, you know,
19 the struggles that everybody's been through in the past for
20 equality and integration, I mean, we have an opportunity to
21 move forward on that, and to actually learn something. I think
22 for teachers, you know, that's really important. I mean,
23 people are in teaching because we want to help. We want to
24 build the next generation, the next generation of leaders, you
25 know. So it's important to us, it's very -- I mean, yeah, it's
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1 very popular.
2 Q So in a certain sense for those who have decided to
3 attack affirmative action in California it's been very much a
4 double-edge sword.
5 A Yes. I think that's almost a understatement because, I
6 mean, I think it's been like -- it's completely really
7 backfired. I mean, that, you know, on the one hand we're
8 facing terrible, negative consequences of the ban right now.
9 But there's really been a whole, like, movement for equality
10 unleased which has really gained strength and confidence. I
11 mean, yeah, it's backfired.
12 Q In your view, are Berkeley admissions race blind today?
13 A No, because -- I mean, when you get, you know, brilliant
14 challenges who have been taking AP classes at colleges, you
15 know, in LA, in middle school, kept out, you know, Latino
16 students with that kind of talent, kept out, you know, after
17 the ban, I mean, it's just clear that without measures against,
18 you know, racial discrimination that still occurs, you know,
19 towards blacks and Latinos and Native Americans and other
20 under-represented minorities. And without that, there's a
21 double standard being used now. Race is being looked at, but
22 it's being looked at, you know, against the very people that
23 have been victimized by racism. It's been held up against
24 equality. It's being used, I mean, in a way that -- the impact
25 is segregation. I mean, just the reality of the situation is
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1 to use a double standard, you know, in favor of white students
2 and against minority students. And nobody wants that. None of
3 the students want that. The majority of the students on the
4 campus of all races support affirmative action, and know how
5 limited an education is without integration.
6 Q Do you teach any white students?
7 A Well, I have one white student in one of my freshman
8 classes. She transferred in late.
9 Q And over the years that you've been teaching you've
10 taught some white students?
11 A I would say it's been about -- yes, yes, I would say it's
12 been one to two each year.
13 Q And they experience the conditions in Oakland Tech School
14 that the black, the Latino, the Native American students also
15 experience.
16 A Yes, they experience the same conditions in the overall
17 school, but there are some issues within the school of
18 inequity. For example, if you look at the honors programs,
19 they are primarily white and Asians with only one or two black
20 students. But then you look at my class which are the classes
21 which are the regular track classes and there may be only one
22 white student.
23 So there are the same conditions in the school
24 overall, but there's still some differences within the school.
25 But yes, I mean, anybody going through Oakland schools is
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1 experiencing a different kind of education than you would get,
2 for example, at Piedmont right next door, which is
3 predominantly white school district which has all kinds of
4 resources, all kinds of programs, all kinds of -- you know,
5 the students there have counselors, are told they are the
6 future in a way that, you know, the conditions in our schools
7 don't tell the students.
8 Q So the white students in your school have they had the
9 opportunity to, and have they also taken a stand?
10 A Well, yeah, they support affirmative action, also. I
11 mean, they look -- we're never going to, you know, break down
12 these unequal conditions of education within the schools if the
13 schools remain largely segregated like this, and for the few
14 white students that are in the school, they have a sense that,
15 you know, their own future, and their own possibilities is, you
16 know, tied up -- the black students there have an equal right,
17 and that would bring more positive changes to the whole school
18 system overall. So they generally, you know, have been
19 supportive as well.
20 Q What would take to level the educational playing field?
21 A I think it would take real desegregation plans for both
22 higher education and K through 12. I think it would really
23 take, you know -- it would take a lot more resources, but not
24 just more resources. I mean, also integration because I mean
25 -- well, it's like the Brown versus the Board of Education case
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1 that, you know, I mean if they're separate, there is a stigma,
2 you know, on the minority students. And if they're separate
3 there's a message that it must be for a reason. And that one
4 group is inferior and clearly in this society the message is
5 that, you know -- that's put out by separate conditions, you
6 know, conscious or not, the message that is put out is that
7 black people are inferior and we're not, we're equal so we need
8 integration. And I think everybody in the whole society has a
9 tremendous amount to gain from that. So I guess that's kind of
10 how I see affirmative action at the university level, but I
11 also see it as connected to needing to really, you know,
12 integrate the public school's education system through and
13 through. And there's a lot of support for that around the bay
14 area. I mean, people know, you know, that's how profounding
15 and positively that would improve everything.
16 Q Do you see yourself as engaging your students in a
17 process of lifting the stigma?
18 A Yes, yes, because just -- I mean -- well, it's sort of
19 like how I felt going through the college. I mean, when you
20 come forward and stand up for equality and you're a leader, you
21 know, for everybody, then, you know, that does lift the stigma.
22 I mean the fact of the matter is, you know, like people in my
23 education program knew that -- I mean, basically they wouldn't
24 have gotten as good of education, you know, if I hadn't been
25 saying those things in those classes.
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1 And I think with my students when they stand up for
2 their futures, when they become involved in this movement they
3 feel so much better themselves, but also they just do -- they
4 just -- I mean, they can say things and express things that I
5 can't even say or express up here. They are just so talented
6 and they have so much to contribute to, you know, society.
7 So, yes, that does lift the stigma. I think this whole
8 country gained a whole lot from the first civil rights
9 movement. Everybody, black and white, Latino, Native
10 Americans, everybody, Asians, everybody gained from the
11 progress that was made towards integration. And I think this
12 is just carrying that through and making -- and defending
13 that, but really carrying it through further, you know.
14 Q What happens to your students if you were to lose?
15 A Well, I mean, gosh, we don't intend to lose first of all
16 because we can't afford to because -- we don't want California
17 -- I mean, it would be like -- I mean, California is going to
18 be like Mississippi, you know, before the civil rights
19 movement, and that's crazy.
20 I mean, my parents met during the, you know, voters
21 registration in the civil rights movement. They wouldn't even
22 have had the right to be married to each other if it wasn't
23 for that movement.
24 I mean, my students, you know, want to like, you
25 know, engage with young people their age of all races. Like,
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1 they're not going to let this happen, but if it were to happen
2 it would mean just -- California becomes -- I mean there's no
3 other way to put it, really. It would just take us back, you
4 know so far. I mean -- we're not going to let that happen.
5 That's not where things are at. Things are not -- I mean
6 people in California are -- I mean, okay, I'm an English
7 teacher so -- I mean, you know, the poem, "Dream Deferred"
8 it's just like that. I mean, the last line of that poem it
9 goes -- and it's sometimes called "Dream Deferment," sometimes
10 called "Harlem." It says -- it talks about dream deferment.
11 It says maybe it sags like a heavy load or does it explode?
12 That's the situation. The burden, the shattering of dreams,
13 the ruining of hope would be just irreparable but people would
14 also be so angry. I mean, things would just explode in
15 California. People just won't tolerate it. I mean, we've got
16 an intergraded state. We need intergraded public education.
17 Q And what happens if you win?
18 A Well, if we win we just have -- it's like just opening
19 the doors so much progress. I mean, I think it will be really
20 positive to the whole national situation. I think it will be a
21 real signal that this country, you know, can deliver a real
22 democracy to members of all races, specifically to black
23 people, but to everybody. I think it will be such a unleashing
24 of potential, of the whole next generation, you know, that's
25 just going to be completely squandered if we move towards
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1 segregation if that process continues. I think we have
2 everything to win, everything to gain. That means obviously
3 more opportunities for my students, but really for every single
4 student in California. I mean, for this whole next generation,
5 but really for every generation.
6 Q You sound very optimistic.
7 A I am because we are going to win, because we do have -- I
8 mean, it's just the fact that the majority of people in this
9 society support quality and this is a fundamental question of
10 equality, of democracy. I mean, that's what integration is.
11 That's what affirmative action is. And there's just a sense of
12 that kind of confidence and determination to not go back in
13 California right now. And I think it's just really a historic
14 moment, a real historic turning point, and I just -- yeah, I'm
15 very, very optimistic because we, as I've said, have absolutely
16 everything to gain, and we do intend, you know, have that
17 reversed. We do intend to move forward. We have such
18 momentum. We have, you know -- gosh, we can't even get enough
19 buses, but we'll get those buses and we'll thousands of people,
20 and we're going to win. We have to win, and we will.
21 MS. MASLEY: Nothing further.
22 THE COURT: Anything from the Plaintiffs?
23 MR. PURDY: No, your Honor.
24 THE COURT: Thank you, very much. I appreciate it.
25 The Intervenors rest?
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1 MS. MASSIE: Yes.
2 THE COURT: Everybody's rested?
3 A couple of things, tomorrow we'll start at 9:00
4 o'clock, and forty-five minutes for closings. If you need a
5 couple of extra minutes, that will be fine.
6 And then if you could, I know that we've given you
7 until the 27th for your post trial, the designations if you
8 could get those to me as soon as possible because I would like
9 to start reading them as soon as possible. I don't have those
10 transcripts.
11 And last but not least, is we have the motion of the
12 defendants to clarify the record. I'm ready to rule on that
13 as we've had some arguments before, and I've kind of
14 preliminarily told you what my thinking is, but let me hear if
15 you have anything else.
16 MR. PURDY: I thought we had an agreement that was
17 off.
18 THE COURT: Oh, is that off?
19 MR. PAYTON: I think where we left in the reply that
20 we filed is that it seemed to us that there was really no
21 substantial disagreement about where we were about what the
22 legal standards were, and for the record what was said.
23 THE COURT: That's pretty much what I was going to
24 tell you. I don't think there is either. I mean, almost --
25 it's either in here during the trial or it's in during the
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1 summary judgment motions, and I was not going to include the
2 summary judgment motions. I believe that's my ruling. I
3 mean, everything is in the record somewhere --
4 MR. PAYTON: Let me tell you what I think that
5 means. It means that the Court I think could, for example, if
6 it chose to rely on some of the things in the summary judgment
7 record in reaching some opinions.
8 THE COURT: I have to. I think you're right. It's
9 part of the record. Both of you will have an opportunity to
10 brief it, submit those documents. I don't think I have any
11 choice --
12 MR. PAYTON: Absolutely.
13 THE COURT: There's no way that I couldn't, and as
14 all of you know, I've already those motions and have read all
15 the attachments anyhow.
16 MR. PAYTON: See you in the morning.
17 THE COURT: See you at 9:00 o'clock tomorrow
18 morning.
19 (Court recessed, 3:35 p.m.)
20 -- --- --
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1 CERTIFICATE
2 I, JOAN L.MORGAN, Official Court Reporter for the United
3 States District Court for the Eastern District of Michigan,
4 appointed pursuant to the provisions of Title 28, United States
5 Code, Section 753, do hereby certify that the foregoing
6 proceedings were had in the within entitled and numbered
7 cause of the date hereinbefore set forth; and I do further
8 certify that the foregoing transcript has been prepared by me
9 or under my direction.
10
11 ____________________
JOAN L. MORGAN, CSR
12 Official Court Reporter
13 Date: __________________
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