In its continuing efforts to keep the public informed about the ongoing admissions litigation, the University of Michigan makes these transcripts of the trial proceedings in Grutter v Bollinger, et al., Civil Action No. 97-75928 (E.D. Mich.), available to the University community and general public. As is often the case with transcription, some words or phrases may be misspelled or simply incorrect. The University makes no representation as to the accuracy of the transcripts.
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1 UNITED STATES OF AMERICA
FOR THE EASTERN DISTRICT OF MICHIGAN
2 SOUTHERN DIVISION
3
4 BARBARA GRUTTER,
For herself and all others
5 Similarly situated,
6 Plaintiff,
7 v. Civil Action
No. 97-CV-75928
8 LEE BOLLINGER, JEFFREY LEHMAN,
DENNIS SHIELDS, and REGENTS OF
9 THE UNIVERSITY OF MICHIGAN,
10 Defendants.
_________________________________________/
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12 BENCH TRIAL - VOLUME 15
13
FRIDAY, FEBRUARY 16th, 2001
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15 BEFORE THE HONORABLE BERNARD FRIEDMAN
United States District Judge
16 Theodore Levin United States Courthouse
231 West Lafayette Boulevard, Room 238
17 Detroit, Michigan
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19 Appearances:
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Kirk O. Kolbo, Esq.,
21 R. Lawrence Purdy, Esq.,
22 On behalf of the Plaintiff,
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24 John Payton, Esq.,
Craig Goldblatt, Esq.,
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On behalf of the Defendants Bollinger, et al,
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APPEARANCES (Continued):
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4 George B. Washington, Esq.
Miranda K. S. Massie, Esq.
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On behalf of Intervening Defendants.
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20 Joan L. Morgan, Official Court Reporter
21 Proceedings recorded by mechanical stenography.
Transcript produced by computer-aided transcription.
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2 I N D E X
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CLOSING ARGUMENT PAGE
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BY MR. KOLBO 4
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BY MR. PAYTON 33
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BY MS. MASSIE 67
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1 Detroit, Michigan
2 FRIDAY, FEBRUARY 16TH, 2001
3 9:00 a.m.
4 - - -
5 THE COURT: Okay. Good morning.
6 Just a couple of housekeeping matters. I thought we
7 would put the time -- how much everybody used. The Plaintiffs
8 was nineteen hours, twenty-three minutes and fifty-two
9 seconds. The Intervenors was twenty-eight hours forty-eight
10 minutes. Whoever kept that time didn't keep the time of
11 seconds. And the Defendants was fifteen hours and fifty
12 minutes. If anybody is curious, that's how it was left as of
13 yesterday.
14 Okay. Any other preliminary matters we should talk
15 about before we go into Closing Argument? Okay. Plaintiff?
16 MR. KOLBO: May it please the Court, counsel, Kirk
17 Kolbo on behalf of plaintiff. I want to begin, your Honor,
18 for myself, and my client, Ms. Grutter, and on behalf of our
19 entire team by thanking your Honor and the court for the
20 courtesy you have extended to all the parties and counsel
21 throughout the trial of this matter. Our thanks extends to
22 the Court's staff, to the Marshal's Office, to the court
23 reporters who have taken turns trying to keep up with the
24 lawyers and the witnesses in this case.
25 A trial to some extent is an ordeal and it's been
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1 made less so in this case by the courtesy of the Court and its
2 staff, and extended to all counsel in this case.
3 With respect to my closing argument, your Honor, I'm
4 not going to try to be comprehensive. It's been a long enough
5 trial, that a witness-by-witness, or document-by-document
6 account would neither be practical or useful. Instead,
7 I want to take some time to focus on some themes that seem
8 important and it seem to have reoccurred throughout this case.
9 There are, of course, as the Court knows three issues before
10 the Court on the trial of this matter. And that certainly is
11 what I intend to focus my remarks on. There is also, as the
12 Court knows a fourth issue before the Court concerning whether
13 diversity can ever be or constitute a compelling governmental
14 interest in justifying racial classifications like those
15 involved here. I don't intend obviously, your Honor, to argue
16 that issue this morning because it's already before the Court
17 on motions for summary judgment. But I make the point about
18 that fourth issue that's out there because with respect -- I
19 want to leave it clear here today, of course, your Honor, that
20 we believe although the issue that the Court is trying to the
21 extent of race and the issue of double standard, we believe
22 that we have from the beginning when we filed this case that
23 no consideration of race can ever be lawfully justified with
24 respect to the diversity rational. That Justice Powell's
25 opinion in Bakke with respect to diversity rational is not and
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1 never has stated controlling law with respect to this issue.
2 And it may not justify race to any extent with respect to
3 admissions decisions.
4 So we're approaching this issue, your Honor, today
5 with respect to the extent and the double standard, assuming
6 that diversity is compelling, and assuming that Justice
7 Powell's opinion could be controlling in this area.
8 On those issues, your Honor, one and two in this
9 case, there are three issues, of course, I'm going to start
10 out primarily by focusing on one and two, the extent and the
11 double standard issue. I think those tend to be related. And
12 then later in my remarks I want to address the third issue as
13 well.
14 With respect to the issues, your Honor, of the extent
15 to which race is considered, and the double standard, we
16 believe the answers have shown and the evidence in this case
17 are straightforward and clear. Stated plainly race is an
18 enormous factor in the admissions process at Michigan. It is
19 a factor of such size used in the manner so pervasive and in
20 such a systematic matter that it has in effect yielded two
21 different admissions standards: A double standard based on
22 race, based on ethnicity, based on skin color.
23 Having stated that conclusion, simply, your Honor, I
24 want to quickly brush aside a number of arguments that are
25 sometimes attributed to our side of the case but are not, in
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1 fact, our argument. First, we don't contend that race is a
2 dispositive factor in every admissions decision. We don't
3 contend that race is necessarily the most important factor in
4 the admissions process, or that it necessarily is the most
5 important factor in any particular given decision, and we
6 don't contend that the University of Michigan Law School
7 admits unqualified minority students in the sense that they
8 are either unable to do the work, or to graduate, or to go on
9 and lead successful careers. Clearly they do, and we don't
10 contest that issue.
11 But the extent to which race is a factor, and the
12 extent to which it has led to a race-based double standard,
13 does lead, we believe, lead to the following conclusions.
14 First, applicants of different races do not at Michigan
15 compete on an equal footing. The use of the double standards
16 to ensure a critical mass of minority students has led to the
17 systematic exclusion of students who do not belong to the
18 races for which critical mass is sought. And the use of the
19 double standard and the consequences of systematic exclusion
20 have importance attached to critical mass, has all led to what
21 Justice Powell called "systematic exclusion and the functional
22 equivalent of a quota." Race simply is not weighed fairly in
23 the process at the University of Michigan Law School.
24 These conclusions on extent and double standard find
25 evidentiary support, your Honor, we believe in three very
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1 general areas. First of all, the data itself and the
2 statistics. Secondly, in the documentary evidence in the
3 case. And, thirdly, even in the testimony that we received
4 from a number of the law school witnesses.
5 And what I would like to do in the remainder of my
6 closing remarks, your Honor, is to focus generally on these
7 areas, again, not going into everything obviously, but talking
8 about some of the things that we think are important.
9 First, your Honor, with respect to the statistics, to
10 the data, I'm not going to say much more on this, this morning
11 because we may have an opportunity to address some of the
12 specifics on this in the course of our written submissions.
13 There's really not much more I can say, your Honor. You've
14 heard testimony from two statisticians on two occasions, each
15 of them, over a period of about four days. I don't think
16 there's much more I can say, your Honor, that addresses those
17 issues that has not already been said by them, and then in the
18 court transcript.
19 There is a saying, your Honor, I think that some
20 people know many things, and others know one big thing. When
21 it comes to the statistics, to the data in this case, your
22 Honor, when it comes to statistics, formal statistics, I don't
23 know many things, but concerning the statistical evidence in
24 this case, I know one big thing, and that is, that the
25 statistical case makes a very devastating one against the
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1 University of Michigan Law School with respect to the extent
2 to which race is a factor in the admissions process, and to
3 the extent to which race is used as a double standard.
4 With respect to that, your Honor, we've had Dr.
5 Kinley Larntz testify, and I'm not going to go into the
6 details of his testimony. You saw him twice, and then you saw
7 Dr. Raudenbush on two separate occasions. Much of what I
8 think the defendants have done with respect to Dr. Larntz's
9 criticism, fall really into the category of academic
10 criticism. They tried to score some debating point that are
11 completely divorced I think from common sense, and from what
12 we know to be important realities at the Law School.
13 They accuse him, for example, of discarding data, of
14 selectively attending the data, suggesting that something was
15 designed to achieve a bias result. This, your Honor, we
16 believe is simply not true. What Dr. Larntz's study has made
17 clear, race is a very important factor at the University of
18 Michigan, and that students of different races are treated
19 differently. And he studied that in a way that demonstrated
20 that in eighty-four to eighty-five percent, for example, of
21 the cells that he looked at in one mode of his statistical
22 analysis, those students fall into categories where there is
23 differential treatment on the basis of race. Now, of course,
24 he's quantified that in a number of respects.
25 One of the things that Dr. Larntz said at the end of
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1 his direct testimony was that all that he showed -- although,
2 he had demonstrated much with respect to inferential
3 statistics, we saw and heard testimony about odds ratios, the
4 probabilities of acceptance, what he said was that really you
5 can see it in the grids. You don't need a statistician, you
6 don't need inferential statistics really to see what's going
7 on here.
8 I think I said something like that, your Honor, back
9 in December in the course of the summary judgment hearings,
10 that we have an expert and we think he's done a fine job of
11 quantifying what's going on at the University of Michigan Law
12 School. But one can see it with the untrained eye. One can
13 see it in the grids. Year-after-year, cell-after-cell, what
14 we see is very, very different treatment for people similarly
15 situated according race.
16 Frankly, your Honor, we believe that is simply
17 obvious, and we're a little bit surprised to the degree that
18 the University has tried to challenge the extent to which race
19 is taken account in the admissions process.
20 My final point, or one of my final points with
21 respect to the statistical evidence, your Honor, I think is
22 also something of an obvious one but I want to make it because
23 I think it's useful. I've been somewhat surprised to the
24 extent to which the University, the Law School, seems to want
25 to have it both ways. They kind of want to have their cake
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1 and eat, too. Almost breathlessly they passed, for example,
2 from a criticism of Dr. Larntz for suggesting that he couldn't
3 quantify the extent to which race is used in the process, for
4 what they say was an exaggeration of the role that race plays
5 in the process, for ignoring the many other factors that are
6 involved in the race process. They criticized him and then
7 pass immediately to their next point which is that race is a
8 very important factor in the admissions process. That it is
9 so important that the work of Dr. Raudenbush, there will be
10 dramatic, sharp, substantial drops in minority admissions, if
11 just this one factor, race was removed and everything else
12 would stay the same.
13 We heard that kind of testimony not just from a
14 statistician, from Dr. Raudenbush, but even from some of the
15 University's witnesses including Dean Munzel who testified
16 that it would be a devastating drop in admissions if just that
17 one factor was taken out. We think it's clear, your Honor,
18 that that demonstrates exactly what Dr. Larntz testified to in
19 this case which is that race is a very, very important factor.
20 It's not uncommon, I guess, your Honor, for lawyers
21 to plead alternative legal theories, but it seems to me it's a
22 little strange to plead alternative facts. And they just
23 can't have it both ways on this point. And we think that what
24 Dr. Raudenbush did effectively and essentially confirmed the
25 analysis that the Court heard from Dr. Larntz. And, again,
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1 your Honor, we think one can simply see that in the grids.
2 Your Honor, the second issue that is being tried here,
3 the one of double standard, is one that I have indicated
4 earlier, it really arises from the first. The extent to which
5 race is considered and as we see it in this case, really
6 answered the question about whether there is a double
7 standard. What the data has shown, what Dr. Larntz has shown,
8 what the inferential statistics show, what the grids show, and
9 what Dr. Raudenbush has shown, is that there is beyond any
10 dispute, a race-based, double standard in the admissions
11 process at Michigan.
12 To state it simply, your Honor, a different rule
13 applies to the probabilities of acceptance, to the odds of
14 acceptance, for applicants from different racial groups.
15 Among those applicants with comparable academic credentials,
16 we can quibble about what's meant by "comparable" and I think
17 there's been some of that. We can quibble about what's meant
18 by "credentials" and I think there's been some of that
19 quibbling. But one thing we know for sure is that grades and
20 test scores are very, very important in the process. We know
21 that Michigan is very highly selective. And we know that
22 Michigan is very highly selective on those criteria: grades
23 and test scores. And they have chose to be highly selective
24 on those criteria. And just as clearly, we can see the
25 starting of just the quantitive data without even going beyond
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1 that, and we certainly and I will, that there is this
2 different rule that applies. That there is a race-based
3 double standard. Not one that makes a difference, your Honor,
4 in every case, but that makes a difference in many, many cases
5 that is pervasive, systematic, that is dramatic, sharp, and
6 substantial.
7 Now, your Honor, Justice Powell, himself disapproved,
8 disapproved of an admissions system in which applicants could not,
do not
9 compete on an equal footing because of the consideration of race.
He
10 proscribed what he called a two-track or dual admissions system.
Well,
11 your Honor, that's exactly what we have here at Michigan. In no
12 meaningful sense do applicants of these different races compete on
an
13 equal footing. If the facts here, your Honor, haven't
demonstrated that,
14 I really don't know what it would take to make that case. What it
would
15 take to make the case that a double standard exists.
16 Here, as I've indicated, applicants simply don't
17 compete on an equal footing. If it can't be proven with this
18 kind of evidence, your Honor, with the evidence that we've
19 got, I simply don't believe it can proven. And I don't say
20 that, your Honor, because I think that we're particularly good
21 lawyers on our side of the case. I say that, your Honor,
22 because we think the facts of this case are particularly
23 egregious.
24 I want to turn next, your Honor, to the policy
25 itself. I'm done I think for the most part of talking about
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1 the statistics. As I've said I think much better use of time
2 can be made in closing remarks, and I want to say a few words
3 about the policy. And what I want to say really, your Honor,
4 distills down to this, and I know the Court is very familiar
5 with the policy so I have no intention in taking any time to
6 go into it in detail. But the policy itself, on the face of
7 the policy itself, there is proof of the existence of the
8 double standard.
9 The policy is written just -- the police as written,
10 effectively sets up a whole racial category of applicants
11 whose admissions are to be sought in what the policy calls
12 "meaningful numbers." "Meaningful numbers" even though the
13 academic credentials within this group, the test scores and
14 grades, the selection index that was so often referred to in
15 the policy, even those are as the policy says "relatively far
16 from the upper-right portion of the grid where the great
17 majority of application decisions are to be made."
18 We think, your Honor, that demonstrated
19 categorically a difference. That's clear evidence of the
20 existence of the double standard.
21 And, of course, the policy goes on to talk about
22 critical mass. This has been I guess a marvelously useful
23 concept for the law school and its witnesses. There's a line,
24 your Honor, from Louis Carroll's "Looking Glass" or Mark from
25 "Humpty Dumpty" where he says when he makes a word work hard,
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1 he pays it extra. Well, I think, your Honor, the Law School
2 owes a lot of money to this phrase "critical mass" because
3 they make it do a lot of work. I want to make a couple of
4 points about it.
5 The first point actually, your Honor,
6 relates back to something that I said at the time of the
7 summary judgment hearings in this case. We have called, the
8 plaintiffs have called, and we're not the only ones, other
9 courts have done this as well, we have called the concept of
10 critical mass a concept that is vague, amorphous, ill-defined,
11 one that as a matter of law is not adequately defined to
12 support a narrowly tailored consideration of race.
13 Your Honor, given what has been said about critical
14 mass in the course of this trial, I don't know how our
15 characterization of critical mass can be assail. It should be
16 notorious by now that indeed this concept, the articulation of
17 it, is one that is so vague, of one that is ill-defined that,
18 in fact, it cannot support the use of race of in the
19 admissions process. In fact, it's been very featured, and the
20 very form of this seems to me that would serve the Law School
21 so well. And I think it's clear, your Honor, how it has
22 served the Law School, the use of this concept "critical
23 mass."
24 It's done so because it has enabled the Law School
25 basically to continue its longstanding tradition of applying
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1 double standards in the use of race. And to do so with the
2 use of language that is intended and I think to some extent
3 soothes and obscures. It permits the continuation in effect,
4 though not in name, of what was formally called a "special
5 admissions program" one that operated under the Law School's
6 policies prior to 1992.
7 The concept of critical mass and the way it's used by
8 the Law School has permitted effectively the setting aside of
9 some percentage or range of percentage of seats intended for
10 those and only for those who can contribute to this concept of
11 critical mass. And we know what that range is, your Honor,
12 even if it's not written in the policy, even as we know each
13 year that there is some number with respect to residency, that
14 the policy itself does not mention that, in fact, is a real
15 number. And we know, your Honor, that critical mass means
16 despite the ambiguity of the concept itself, from a number of
17 things in this case.
18 We know it first of all, your Honor, simply from the
19 data, the Law School tells us first of all that they have
20 critical mass, and so we can see that they -- we can see from
21 their own admissions data what fact it amounts to. And we
22 have, your Honor, we've seen much evidence in this case about
23 the statistics in terms of what the composition of the class
24 is, and each year, your Honor, what the statistics have
25 demonstrated, and I think there's one exhibit in particular
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1 that makes this point, it's Exhibit 98, it's going back to
2 1992, the Law School have never had something less than eleven
3 percent underrepresented minority students in their class.
4 That seems to be at least the low end, the approximate low end
5 of the benchmark of critical mass.
6 Your Honor, we also have testimony on that subject,
7 in this area. We have testimony, your Honor, I think, for
8 example, from Professor Lempert in this case. He was asked
9 about critical mass. This is on page 84 of Volume 3 of the
10 transcript.
11 "I don't know. I think at the time when I wrote the
12 drafts, it seems to me based on committee's
13 discussions that sort of captured the sense of
14 what one needed at a minimal critical mass."
15 He was answering a question about whether or not a
number of
16 eleven to seventeen percent captured that concept of critical
mass.
17 We've heard, your Honor, I think through Ms. Munzel,
18 Dean Munzel, that, in fact, one of the things that she does in
19 assembling critical mass, she, herself, I think testified she
20 doesn't know what the concept means. But one of the things
21 that she does is look at the daily reports that she can see
22 generated on a regular basis that will tell her how this
23 year's class sizes up compared to past classes. And, of
24 course, what happens from year-to-year, we see the same thing,
25 the critical mass amounts to a range somewhere between eleven
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1 and seventeen percent.
2 So the concept itself is illusive, your Honor, it's
3 quite clear what the Law School is doing. And this bring me
4 back again, your Honor, to Justice Powell's opinion Bakke, the
5 benchmark against which at least the Law School had made its
6 policy, Justice Powell made clear that he would not approve of
7 an admissions system that involved a systematic exclusion of
8 race. One that amounted in his words to the functional
9 equivalent of a quota.
10 Well, I believe, your Honor, that effectively is what
11 is accomplished with the policy at issue in this case. What
12 the numbers do, what the data do simply confirm that the Law
13 Schools Admissions' Office carries out these policy mandates
14 with respect to, of course, obtaining a critical mass. They
15 assure each year, the Admissions Office does, that there will
16 be meaningful numbers, critical mass of minority students
17 somewhere near or between or approximating eleven and
18 seventeen percent. And to accomplish that objective minority
19 applicants are admitted whose grades and test scores place
20 them relatively far from the upper right portion of the grid.
21 Your Honor, the policy itself and the way it's
22 implemented, it self-contemplates systematic exclusion to the
23 extent that there needs to be the policy called for in the
24 Admissions Office ends up enrolling a critical mass of
25 minority students. And it's important to understand, your
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1 Honor, that critical mass can only be brought by one type of
2 student. Critical mass is only brought by students who belong
3 to particular races and ethnicities who can fulfill it.
4 Barbara Grutter, and people like her, white students,
5 Asian students, cannot compete for seats in a class to the
6 extent that the Law School is trying to fill their critical
7 mass to reach their meaningful numbers. That, your Honor, is
8 systematic exclusion. The numbers in this case bear out the
9 bear out the conclusion that what Michigan operates is at
10 least the functional equivalent of a quota.
11 All the defendants, your Honor, are really left with
12 on this defense that this is not a systematic exclusion, that
13 this is not a quota, is their defense that there is not an
14 affix in the quota, that the numbers enrolled at the Law
15 School vary from year-to-year, that there's a range.
16 Your Honor, this is simply, it seems to me, elevating
17 form over substance. Race is not considered to any less
18 extent, there is not any less of a double standard simply
19 because there is not one single number, not one single fixed
20 number that represents critical mass. Choice of words, don't
21 it seems to, your Honor, decide the issue. It Doesn't matter
22 that the policy does not use the word "quota." It doesn't
23 matter that the Law School dropped its formal reference to
24 the term "special admissions program." With the 1992 policy,
25 your Honor, and the manner in which it's implemented, the
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1 policy still has in effect a special admissions program. And
2 it is not in substance it seems to me any different than the
3 one that was in effect prior to 1992, with respect to the way
4 in which race is considered in the process.
5 Your Honor, I want to talk a little about some of
6 the testimony. I've talked about statistics, I've talked
7 about the data, I've talked about the policy itself. As I
8 mentioned there is this third general category, much of the
9 testimony the Court heard in this case.
10 Your Honor, I've already indicated, for example,
11 that Professor Lempert has testified at least historically,
12 historically what critical mass has meant at the University of
13 Michigan Law School, or to him at least as he was the chairman
14 of the committee something in the range of eleven to seventeen
15 percent. I've indicated, of course, something Dean Munzel's
16 testimony with respect to use of the daily reports, to assist
17 her in achieving critical mass.
18 There also, your Honor, is the testimony that we've
19 heard in this case from former Dean Shields. I want to refer
20 to that briefly. On the subject to the extent which race is
21 considered -- and this was one of the issues, your Honor, in
22 which the University has said that you simply can't make any
23 judgment about extent -- this is what Dean Shields said in
24 response to this question.
25 "Q Would it be fair to assume, is it accurate to
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1 assume, and I'm not asking you about any individual
2 file here but the average here, the difference
3 here in terms of decision-making with respect to
4 African-Americans and these cells and
5 Caucasians, can generally be explained by the
6 Extent to which race is taken into account in
7 The admissions process?
8 "A Generally, yes."
9 Here we have, your Honor, the Dean of Admissions
10 himself, the Dean who was actually on and participated in the
11 drafting of the faculty admissions committee and was there for
12 a number of years afterwards, here we have him acknowledging
13 something that the defendants themselves have tried to deny
14 and have tried to deny, for example, through their own expert.
15 Your Honor, I don't think it's really disputed. I
16 don't think it should be disputed in this case that minority
17 students are generally admitted with generally lower test
18 scores and grades. And there was testimony to back that up.
19 Here, again, your Honor, is from Dean Shields.
20 "Q And in order to achieve that critical mass.
21 of minority students the practice was and the
22 policy called for a willingness to admit minority
23 students from generally lower academic
24 qualifications than majority students;
25 isn't that a fair statement?
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1 "A I think that's a fair statement."
2 And, your Honor, this is testimony that we heard --
3 not from one of the University's witnesses, but from Professor
4 Franklin, John Hope Franklin, and I think it's worth
5 commenting on because of what I just read from Dean Shields.
6 "Q Professor Franklin, when it comes to
7 universities and college admissions you've been
8 clear, have you not, that you do not support the
9 admission of less qualified minority applicants
10 over more qualified Asian applicants?
11 "A That's right."
12 Your Honor, that's what Dean Shields has testified
13 that they do, and that's what Professor Franklin has indicated
14 is wrong.
15 Your Honor, I've talked enough I think about the
16 testimony. We're going to spend some time in our briefing,
17 citing to much more of the testimony and the documents and
18 maybe some of the other points. I want to just turn, your
19 Honor, to the third issue because again I think it's really
20 established beyond any serious dispute that there race is used
21 to a great extent in the process. And effectively and
22 functionally it has a resulted in effect double standards at
23 the Michigan Law School in the functional equivalence of a
24 quota. So I turn to the third issue, your Honor, the issue of
25 leveling the playing field.
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1 The contention as I understand it, your Honor, is
2 that the consideration of grades and test scores disadvantages
3 disproportionally minority students to a large extent. And,
4 therefore, because of that, race must be a consideration in
5 the admissions process. That's how at least I understand the
6 point of view that's being urged by the Intervenors, and I'm
7 not sure it's being urged by the Law School, but I want to
8 address this issue.
9 First, your Honor, if the premise, indeed,
10 justifies the conclusion, if the differential in test scores
11 and grades justify the conclusion then we should at least be
12 fair about one thing. This is just another way of saying that
13 there must be different standards, that students should be
14 treated differently on account of their race because of this
15 premise. But the double standard according to this theory is
16 that it's a justified one.
17 Now, your Honor, I think there are a number of
18 obstacles, many of them are legal, and I'm not going to take
19 up the Court's time today arguing points of law. Again, we
20 will raise those at the appropriate time in the briefs that we
21 file.
22 A substantial case has been made that there are --
23 has been shown that there are different scores in terms of
24 LSAT and grades in terms of minority students and not minority
25 students, your Honor. I don't believe, your Honor, there's
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1 been a case made here of bias. There has been a case made
2 that there are disparities. And we, in fact, would have
3 stipulated to that. It shows up in the Michigan data and it
4 has shown up in some of the national pool data, that is, that
5 minorities have tended, the minorities that are concerned here
6 tend to score lower on some of these indices, like LSAT, SAT
7 scores. It's somewhat baffling, your Honor, that it's become
8 an issue in this case because I think we've made it clear from
9 the very beginning that we don't stand here as defenders of
10 the LSAT or any standardized test. Your Honor, we don't stand
11 here, the plaintiffs in this case, we don't stand here as the
12 defenders of any particular criteria that the Law School might
13 choose to use. It's the Law School that makes those
14 decisions. It's the Law School that made the decision in this
15 case to be highly selective with respect to grades and test
16 scores. And they are entitled to make those decisions, your
17 Honor. It's not for us, it's not for the plaintiffs to tell
18 the University of Michigan Law School that it can't use the
19 LSAT scores, they can't waive them heavily in the process.
20 It's not for us to tell them that they can't be selective on
21 these criteria.
22 Your Honor, we've heard testimony from the Law
23 School that they value diversity, and we have said many times
24 before and I will say it again today that we don't stand here,
25 the plaintiffs don't stand here as opponents of diversity.
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1 But the University of Michigan Law School having made the
2 choice, having made the choice to be highly selective on test
3 scores and grades, and to mandate as a matter of policy that
4 those are very important factors, and its students by and
5 large be shown from these reaches, the Law School is free to
6 not at the same time achieve its objective of diversity by
7 treating people differently on the basis of race, by effect
8 allowing a race-based double standard, by systematically and,
9 in fact, excluding students from competing for these seats
10 that go to establish a critical mass for minority students.
11 Your Honor, we heard from defendant's own expert,
12 Dean Syverud from Vanderbilt that there is a relationship
13 between selectivity and diversity. There's a trade off here.
14 And it only stands to reason here, your Honor, it's common
15 sense. If grades and test scores disadvantage
16 disproportionately minorities, the less consideration, the
17 less importance those criteria have, the easier it will be to
18 achieve diversity.
19 According to the Law School, your Honor, diversity
20 is a governmental interest. I have not heard a case here
21 made, I have not heard a case made in the last several weeks
22 that being a highly selective law school is a compelling
23 governmental interest. I have not heard the case made that
24 being highly selective on criteria like the LSAT is a
25 compelling governmental interest. I have not heard a case
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1 made that the vast majority of the class ought to be selected
2 from the upper reaches of the selection index. They have not
3 the made that's a governmental interest.
4 And if it's not, your Honor, if being highly
5 selective, if being highly selective, if being highly
6 selective on the criteria that the Law School itself has
7 chosen, is not a compelling governmental interest and if
8 diversity is, then truly the former must yield to the latter.
9 So selectivity must yield to diversity.
10 But that's not the choice the Law School has made
11 here. Instead, your Honor, what they have tried to do is have
12 it both ways, and people have paid the price for that, people
13 like Barb Grutter, and the thousand of other applicants out
14 there like Asians and other races who cannot compete on an
15 equal footing for spaces in the class because of the choices
16 that the Law School has made.
17 Your Honor, we've heard many times from the
18 defendants that the Law School admits students by taking a
19 look at files on a case-by-case basis, by looking at the
20 individual files, by looking at individuals with personal
21 characteristics. That the LSAT like race is just one factor
22 in the admissions process. We see that, your Honor, in their
23 Exhibit 4, when they cite four examples of people whose values
24 to the class, is in their personal qualities and
25 characteristics notwithstanding relatively low or lower LSAT
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1 scores. And I think in most of those cases all if not most of
2 them, what the testimony is and what the exhibit indicates is
3 that those personal qualities of those individuals bring to
4 the class have nothing to do with their race.
5 The testimony, your Honor, in this case has not been
6 that the Law School must reach into the upper reaches of
7 selection index in order to get students with interesting
8 backgrounds and experiences. The testimony has not been, your
9 Honor, that qualified students can only or primarily be found
10 at the ninetieth or ninety-five percentile or above on
11 selection indexes and LSAT scores.
12 The testimony has not been, your Honor, that better
13 lawyers are produced from the pool of students with the
14 highest test scores and grade. Indeed, your Honor, on each of
15 these points, the evidence has actually been the other way
16 around that most of the applicant pool at Michigan is highly
17 qualified, and can be expected to succeed academically at the
18 Law School, and to go on to graduate even though they're not
19 in the upper reaches of the grid.
20 The testimony has been, your Honor, that students
21 even in the middle range of LSAT scores can do well and do do
22 well as many of the minority students at the Law School.
23 Again, we are not suggesting that these students can't do
24 well, can't be qualified at the school. They don't have to
25 have LSAT scores that are of the ninetieth or ninety-fifth
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1 percentile. That's what the Law School has chosen to be
2 important for them in selecting a class.
3 And, of course, your Honor, Professor Lempert who
4 testified just yesterday has demonstrated that one doesn't
5 have to score in the upper reaches of the LSAT in order to
6 have a high selection index to go on and do well in life after
7 law school.
8 And if all those things are true, your Honor, it
9 seems to me that the Law School is hard press to explain how
10 racial classifications can justify the two things they want at
11 the same time: Diversity and high selectivity and test scores
12 and grades. If the one is compelling the other must and
13 should yield. That, your Honor, is what narrow tailoring
14 requires. The Law School may not have it both ways at the
15 expense of the rights of people like Barb Grutter and others
16 like here.
17 Your Honor, I want to turn last to the issue of
18 societal discrimination. There's been testimony about that in
19 this case. And once, again, your Honor, there's been
20 testimony from many of the Intervenor witnesses on this. Your
21 Honor, as I said before, and I think I said this at summary
22 judgment, I think we've said times in this case, we don't
23 challenge, the plaintiffs don't challenge the premise that
24 there has been a long and sorry history of unjust race
25 discrimination against minority groups in this country,
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1 particular groups like African-Americans. And we don't
2 suggest for a minute that racism and race discrimination
3 against these groups is found only in the history books, that
4 there's not a continuation in many respects of the effect, and
5 the fact that many of the practices of those areas continue.
6 Societal discrimination has a long history and has it a
7 persistent and continuing effect. We have heard that not just
8 from some of the Intervenors and I think some of the
9 statements made by the University of Michigan in this case.
10 And we don't challenge it, your Honor. It raises some legal
11 issues, your Honor, in respect to what justifies the use of
12 race in admissions and we will address those probably in some
13 of the briefings that will be filed.
14 And I think it's important to understand, your
15 Honor, that when the Intervenors, when Mr. Payton was talking
16 about these social issues and we heard testimony, we heard
17 comments about racial division, segregation, disparities in
18 education and income, we are no longer talking, your Honor,
19 about the diversity rationale, about the educational and
20 intellectual benefits of a racially diversed education.
21 Instead, your Honor, we are talking about the use of race in
22 law school admissions to remedy longstanding, complex social
23 problems. We're talking about diversity in the classroom, in
24 the school in order to remedy societal discrimination. That's
25 what we're really talking about. And that presents some legal
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1 issues, your Honor, some I think we will be addressing in the
2 briefings that we file with the Court.
3 Your Honor, on the subject of discrimination, the
4 nation's history of discrimination I do want to say one thing.
5 Mr. Payton asked a question of Professor Foner that I still
6 remember, a question although it was really a statement, one
7 that troubled me and I think it actually sums up really the
8 differences in the principles involved here. He asked
9 Professor Foner, your Honor, to agree that there is no "we,"
10 that there is no "our" society. That he said, I think, you
11 have to look at it for each racial group to really understand
12 how they see themselves, the society, other groups, freedom,
13 this country. There is no "we --"
14 But that, your Honor, we believe essentially is the
15 premise on which racial preferences depend. And it is the
16 premise of what racial preferences will always mean. But only
17 that race has matter in our nation's past, but not only have
18 we always been divided, but that race will always matter in
19 the American society, that we will always be divided along
20 racial lines. That is the premise of racial preferences. It
21 is the premise that we will persist in thinking of people's
22 qualifications, in work, in terms of their skin color and not
23 their unique individual qualities, that to know something
24 about someone that we actually have to know what their race
25 is. That's what racial preference has brought to the American
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1 vision.
2 Our vision, your Honor, is different. We don't
3 believe in the position Mr. Payton has expressed. We fully
4 recognize and acknowledge as I say, your Honor, a long sad
5 history of race relations in this country. We don't believe
6 that we are bound by definitely into the future. The American
7 Creed, the proposition that all men are created equal is on
8 that has often been more honored and breached than the
9 observance for some including like African-Americans. But it
10 seems to me, your Honor, that our progress as a nation has
11 always been measured largely by whether we are retreating from
12 or advancing towards that Creed, whether the Dred Scott case
13 or the Fourteenth Amendment embodies our national principles,
14 whether Plessy versus Ferguson, or Brown versus the Board of
15 Education, is the law of the land.
16 Your Honor, the use of race to learn anything about
17 someone, to learn about their qualifications is a step
18 backward. It's in the tradition of retreating away from that
19 great American principle of equality.
20 Today, your Honor, for this generation the question
21 is whether we're going to allow social theories, contrast by
22 diversity, to permanently change, to permanently change the
23 landscape so that race will always matter to a regime of
24 racial preferences. If that, your Honor, were the choice, we
25 will advance the principle of non-discrimination by requiring
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1 that we get beyond race and that we get beyond race now.
2 We believe, your Honor, that is the course that is
3 the right one. That is the one that advances the American
4 Creed. And we believe that is the one the Court should apply
5 in deciding this case, your Honor.
6 Thanks.
7 THE COURT: Thank you, very much.
8 MS. MASSIE: Judge, if I could just ask, I
9 understand there are a number of other students downstairs
10 waiting, if there is any way that we can fit more people into
11 the courtroom?
12 THE COURT: Just looking out there, I don't think
13 so. What we're hoping to do or what we talked about this
14 morning was to be able to use the hallway. There's judges on
15 the floor that are in trial, and it just won't work and
16 because of the court reporter -- we talked about it this
17 morning. I know Lisa is doing a great job out there trying to
18 coordinate those that are here, students and otherwise. That's
19 all I can do.
20 MS. MASSIE: We can't have people sit up or sit on
21 the floor, or anything --
22 THE COURT: No.
23 MS. MASSIE: Is that a fire hazard? Okay.
24 THE COURT: I don't know about a fire hazard; it's
25 just not right.
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1 We can rotate people. Why don't we take five
2 minutes and then we won't have to interrupt Mr. Payton with
3 people coming in and out. We will take a real five minutes.
4 (Court recessed, 9:45 A.M.)
5 (Court reconvened, 9:55 A.M.)
6 THE COURT: Okay. You may be seated.
7 Mr. Payton?
8 MR. PAYTON: Good morning, your Honor.
9 THE COURT: Good morning.
10 MR. PAYTON: I, too, want to thank everyone
11 associated with the case. It's gone very well. And I think
12 in a sense, it's been a clean case, that is, we've had very
13 few disputes among ourselves. I don't think there's any
14 question about credibility. I think the facts have come in
15 pretty straight forwardly. And I think our task is to figure
16 out what those facts mean.
17 I want to start where Mr. Kolbo left off with my
18 question to Eric Foner, and his use of it about my asking
19 aren't we incapable of having a unified "we." He completely
20 misunderstood my question, and I think he completely
21 misunderstands what this case is about. I was about where we
22 are now, and this is case is about how we get from where we
23 are now to being something different than little separate
24 groups.
25 We do agree that this case is about Bakke. We
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1 believe that this case is controlled by Bakke. And it's
2 controlled by Bakke and the educational benefits that come
3 from having a racially and ethnically diverse student body.
4 Educational benefits that the University of Michigan Law
5 School judges to be crucial to its educational mission.
6 Benefits that as he said are undisputed in this record.
7 Let's go back to the summary judgment argument in
8 December. Mr. Kolbo argued then to this Court that -- sort of
9 what he said now -- even if there is a compelling interest in
10 achieving the benefits of diversity, even if Judge Powell's
11 opinion is controlling, that somehow what we do is wrong in
12 trying to achieve that. I said then and I say now that the
13 way the Law School makes admissions decisions is exactly the
14 way Justice Powell said that a Constitutional admissions
15 system should work.
16 This Court directed us to try the three issues.
17 I'm going to go over the first of those two issues and allude
18 to the third issue, but I'm going to stick pretty much to the
19 first two issues. The first two questions are the ones that
20 address whether or not our system complies with Bakke. I
21 agree with Mr. Kolbo, he's going to be surprised that the
22 answers I think are absolutely straightforward, and they
23 require no experts at all.
24 Bakke says that an institution of higher education
25 may consider race as one of many factors in its admissions
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1 process. Race can be taken into account to the degree
2 necessary to achieve meaningful numbers of qualified minority
3 students, so long as the students compete on the same basis
4 against each other. I don't think there is any disagreement
5 with that legal standard. Race can make a difference between
6 getting in and not getting in. I don't think there's a
7 disagreement that that's exactly what Bakke contemplates.
8 Under this standard, the answers to the first two
9 questions are simply -- absolutely clear. Here they are: The
10 record is undisputed that the Law School uses race in its
11 admissions process only to the extent necessary to achieve a
12 critical mass of underrepresented minority students. The
13 extent to which race is considered varies from file-to-file,
14 just as Mr. Kolbo admitted. For some students, it makes no
15 difference at all. Other factors determine their admission.
16 For other applicants, consideration of race can be more of a
17 factor and, of course, in some cases as Mr. Kolbo admitted, it
18 can be decisive.
19 Indeed, to use race to obtain the critical mass is
20 confirmed by the evidence that we've heard regarding the
21 dramatic reduction in underrepresented minority students at UC
22 Berkeley and UCLA after Proposition 209.
23 California is our most racially and ethnically
24 diversed state. We were told that the University of California
25 gets about ninety percent of its undergraduates from within
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1 the state. After Proposition 209, at those two schools,
2 Berkeley and UCLA, there was a fifty percent drop in its
3 Latino students. Not because they didn't have eligible
4 students, qualified eligible Latino students, but because they
5 couldn't take race into account to select them. The number of
6 African-American students dropped even more and what we heard
7 made it clear that their numbers are now so low that there are
8 unsufficient numbers of African-Americans to constitute a
9 critical mass in a diversed student body.
10 We would not use race if we didn't have to in order
11 to obtain the meaningful numbers of minority students that we
12 need for our educational mission. We have to, and that fact
13 simply cannot be avoided.
14 The consequences of the Law School's use of race is
15 that there is a modest level of underrepresented minority
16 students in the class. He said that the number was I think
17 eleven percent, I believe in most recent years it's been
18 around fourteen percent. But the numbers do vary, they do
19 fluctuate, but they're modest.
20 Mr. Kolbo and the plaintiffs and have used Professor
21 Kinley Larntz and his grids to show that there are past
22 admissions decisions in which qualified white students have
23 not been admitted, and where equally, exactly equally
24 qualified minority students have gotten in.
25 Now, I'll come back to the Larntz's grids later, and
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1 I'm going to go over them in some detail. But I want to
2 remind the Court of our Exhibits 182, 183, those are the
3 scatter charts that showed all of the admissions decisions for
4 1997, that's Ms. Grutter's year, showed them by
5 underrepresented minority, and by white students, and it
6 showed rejected and admitted. And if you recall, those
7 scatter plots showed considerable overlap in both categories,
8 overlap with respect to rejected, and overlap with respect to
9 admitted.
10 The legal standard is clear, we can use race and we
11 can use it to the extent necessary to obtain a diversed
12 student body. And I think just looking at those charts it's
13 quite clear we do no more than that. That's the evidence on
14 the first question: The question of extent.
15 Now, the second question: Is there a double standard?
16 Just define double standard: Where applicants are evaluated
17 separately or according to different standards. The record
18 could not be clearer on this. There is one set of standards.
19 He couldn't find any other set of standards. All the
20 applicants are judged by that one standard. That's what the
21 1992 policy says. The parties have stipulated that that's the
22 policy that has governed admissions since 1992. They've
23 stipulated that the directors of admissions, Mr. Shields and
24 Ms. Munzel are charged with implementing that one, unified
25 policy.
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1 Dennis Shields and Erica Munzel testified that they
2 used the same standards to judge every single applicant, every
3 single file. Professor Lempert said the same thing yesterday.
4 President Bollinger, Dean Lehman, everybody testified that's
5 how the process was to work and does work. Race is taken into
6 account but the standards are the same.
7 The evidence is clear that race is not given so much
8 weight that it prevents each applicant regardless of race from
9 competing with all other applicants to gain admission. To the
10 contrary, as the admissions data show the Law School rejects
11 on average over this time period about two thirds of the
12 minority applicants that it receives. If race were the trump
13 card that Mr. Kolbo just indicated that it is, that simply
14 couldn't be true. It just couldn't be true. All students are
15 evaluated under the same set of factors.
16 Now, plaintiff would like to reduce this issue to
17 the following: That applying the exact same standards and as
18 part of the process using race is a double standard. That just
19 can't be right as a matter of logic; otherwise, the use of any
20 factors that may not be present in all applications would also
21 be a double standard.
22 No one says that we have a double standard that's
23 applied to students who get good recommendations.
24 Nevertheless, recommendations can certainly be very important
25 in making decisions. It can very often make the difference
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1 between being admitted and not being admitted.
2 The term "double standard" is just a label that's
3 put on the consideration of race by those who don't believe we
4 should be using it at all. If race couldn't make the
5 difference in some cases, Bakke would have no meaning at all.
6 Moreover, there is no claim that there was any separate
7 process, separate applications, no separate files, no separate
8 readers, no separate anything. Those things would constitute
9 a double standard, but they don't describe our admissions
10 process.
11 The interest of achieving the benefits of racial
12 diversity is at all times fairly weighed against the Law
13 School's other interests in admitting a class that will be
14 dynamic, filled with exceptional students who will go on to
15 become exceptional lawyers.
16 Now, the plaintiff has eagerly, eagerly in this
17 trial and today, agree that the policy requires, mandates,
18 that all students be very well qualified, and that this has
19 been adhered to. Nevertheless, the plaintiff persist in
20 focusing on the disparity in grades and test scores between
21 our minority students compared to our white students, our
22 majority students. That's misleading and of no significance.
23 In 2000, the median GPA for white admitted students was 3.68.
24 The median GPA for African-American admitted students was
25 3.40.
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1 Now, I think in every day parlance that is not a
2 gigantic disparity, and it doesn't have the significance that
3 they're trying to attach to it. The exhibits that I've
4 referred to, the scatter plots from 1997, are very
5 illuminating on this, Exhibits 180 to 183. They show all of
6 the students from 1997, broken out by admitted and rejected,
7 and then broken out by minority and majority. They show that
8 all the students have similar distributions. That the
9 minority students and the white students greatly overlap on
10 the chart.
11 Plaintiff's claim of significantly different
12 qualifications doesn't remain after viewing these charts. And
13 I have yet to point how we make much more informed and
14 sophisticated judgments about our students than merely those
15 that are reflected in a simplistic comparison of GPA and LSAT
16 scores. But, I'm coming to that right now.
17 This is a crucial context I think for both of the
18 first two questions. The context is how our admissions
19 process actually works. I guess the world would be easier if
20 it worked sort of as Professor Larntz described which is just
21 two things: grades and LSAT scores. It would be easier but it
22 certainly wouldn't be better. All the applications compete
23 against each other. Every file is read. Every part of every
24 file is read. All factors, all relevant information are taken
25 into account. Grades and test scores certainly quite
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1 important are never used alone. And in the context of a
2 complete and rich file, grades and test scores rarely drive a
3 decision to admit or to reject. No grids are used in the
4 process of making admissions decisions. No cells are used in
5 the process of making admissions decisions. The Law School
6 doesn't admit grids, or cells, or grades, or test scores. It
7 admits people, whole people.
8 Many of us, many of us in this room, have been on the
9 outside of the admissions process. That is, we all at some
10 point or another applied using grades and test scores in
11 filling out things and we've seen the results. And I think
12 it's fair to say that at one time or another we all had a view
13 that grades and test scores were the only real criteria that
14 mattered, that the most qualified meant the students with the
15 highest GPA and with the highest test scores, that the other
16 factors were just kind of play factors, and they really had no
17 significance at all.
18 In this trial we all learned otherwise. We learned
19 just how much of an art admissions is, and how that art is
20 practiced by a committed and experienced group of
21 professionals.
22 Professor Lempert was asked yesterday if there is a
23 correlation between law school GPA, LSAT scores and success
24 after law school. His study shows that there is not. He
25 explained that this follows because our admissions process
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1 takes so many other factors into account. That's why an
2 admitted student with a moderate LSAT score cannot be judged.
3 By that score in isolation. We do a pretty good job of
4 selecting uniformly excellent students. And because we use
5 those other factors, there is and there could be no
6 correlation between LSAT GPA and professional success. The
7 Lempert study, in fact, proves that we take our policy
8 seriously, and that it does what it was intended to do.
9 The admissions policy at the University of Michigan
10 Law School has played a major role in the creation of one of
11 the country's finest law schools. In this trial, we got an
12 unique tour of how the process really works, and how it was
13 formulated. Let me just go back for a second.
14 1991, then Dean Bollinger, created the Faculty
15 Admissions Committee, and he put the new, then new Director of
16 Admissions, Dennis Shields, on it. And one of the first
17 things Dennis did was to bring actual application files to the
18 Committee. Few of the committee members had ever read a file.
19 Dean Lehman testified -- he was professor then, just on the
20 committee -- that it was a "very a significant exercise for
21 me" to read a file. He had thought that it would be very
22 easy, just look at the grades and the LSAT scores, and you
23 look at a file to just sort of confirm what you've got out of
24 the grades and then LSAT scores. He told this Court "that
25 turned out not to be possible."
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1 Professor Lempert, Chairman of the Committee and
2 the principal drafter of the policy told the Court that "when
3 you read files, you get the feeling of the complexity of
4 students. And you get a feeling for the whole student...you
5 get away from the sense of rigid numbers..."
6 Reading the files turned out to be invaluable
7 because when you admit a student, you have to look at the
8 whole person, not just the grades and not just the test
9 scores.
10 During Erica Munzel's testimony, the Director of
11 Admissions, she went through an actual file of an actual
12 applicant. We can probably remember her story. But do any of
13 us remember her SLAT score, or her GPA? No. What we remember
14 is her story. A very impressive woman. Went to Vassar. Was
15 a Rhodes Scholar. Had compelling essay about growing up in
16 Washington, D.C., where her family's business burned down in
17 the 1968 riots. We learned what she took away from that
18 experience. She had great recommendations. Her SLAT score is
19 not what made her a student we wanted. If it had been a
20 little bit lower we still would have wanted her. Though, at
21 some point, of course, they may have affected our judgment of
22 her. We remember her story because once you know the grids and
23 the LSAT score, once you know her story, the grids and the
24 LSAT scores just recede in significance. Her grades, her
25 SLAT, they just don't matter once you hear the story at all.
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1 You know the person. We don't admit GPAs and we don't admit
2 LSAT scores.
3 The Faculty Admissions Committee was transformed
4 when it read files, when it appreciated how the process should
5 work. And it made sure that the 1992 policy incorporated this
6 learning. While grades and test scores are the "most general
7 measure" of law school performance, the policy makes it quite
8 clear that they "are far from perfect." And as we've all
9 heard they are responsible for less than twenty-seven percent
10 of the predicted first-year graded performance. "Even the
11 highest possible score ought not guarantee admission." "And
12 even a quite low score ought not automatically deny a
13 candidate admission." Those are quotes that we've all heard
14 from the policy. I should point out those quotes have nothing
15 to do with achieving racial diversity. Those are the general
16 points in the policy.
17 It is important to realize that this does not reflect
18 any trade off with regard to the quality of our student body.
19 In fact, it's just the opposite. We look beyond grades and
20 test scores in order to select the best class we can. And
21 this point is independent of any consideration of race that we
22 make. The Lempert Study proves that.
23 The policy goes through just how carefully a file
24 should be read. The enthusiasm of the recommenders; the
25 quality of the undergraduate institution, the quality of the
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1 essays, the difficulty of the courses; the indications that
2 the applicant has unique perspectives, view points,
3 experiences that would contribute to a diversed class, all
4 this should be reviewed. It requires and the policy
5 explicitly acknowledges the need for discretion.
6 The Gospel According to Dennis, that's the October,
7 1992 memo that Dennis Shields wrote that addresses how to go
8 about implementing this new policy, how a file must be read in
9 detail and thoroughly. Why all this case? Well, here's a
10 main point: We go to all this trouble because of a preeminent
11 law school needs to care about the composition of the class it
12 is selecting. We've concluded as an educational matter that
13 having a diversed student body is essential to our educational
14 mission. We, therefore, seek, we all know the quote, "that
15 diversity which has the potential to enrich everybody's
16 education and thus make the law school class stronger than the
17 sum of its parts." You know the rest of the quote about
18 diversity and view points and all of that. I'm not going to
19 go over all that again because we know it very well.
20 The policy makes it clear that one of the aspects of
21 diversity that is very important is racial and ethnic
22 diversity. And, again, that's the part on page 12 that I
23 think we can all recite, the special commitment to making sure
24 that those minorities that have been victims of discrimination
25 are represented in meaningful numbers so that they can
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1 contribute to the diversed student body that we want.
2 Everyone who has testified regarding this mission has
3 agreed that it is critical, that it is crucial. President
4 Bollinger, Dean Lehman, Professor Lempert, Dean Syverud,
5 Professor Orfield, Professor Allen, Professor Foner, Dean
6 Garcia, Professor Wu. In fact, Mr. Kolbo and Mr. Purdy have
7 throughout the trial and Mr. Kolbo has today agreed that
8 having a racially and ethnically diversed student body is
9 important and educationally valuable. The point is not
10 disputed.
11 But for this to succeed educationally, it's simply
12 necessary that a critical mass, meaningful numbers of
13 students, minority students, be present. The policy uses both
14 terms, critical mass, meaningful numbers. Critical mass is
15 neither mysterious nor controversial. Dean Syverud, an expert
16 on legal education, testified about the need for critical mass
17 of minority students. It is crucial because he testified
18 there's a dramatic difference when a class has only token
19 numbers of minority students as opposed to a class where, as
20 he said, "there are enough black and Hispanic students that
21 there is a diversity of views and experiences among the
22 minority students so that everybody in the class starts
23 looking at people as individuals in their views and
24 experiences, instead of as races."
25 This provides the minority students with the freedom to
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1 express a diversity of views. It also provides the
2 non-minority students with a demonstration that not all
3 members of a minority group think alike. The 1992 policy
4 benefits both minority and majority students. As a result, all
5 students are able to interact with each other and learn from
6 each other, and hopefully become the "we" that I was asking
7 Professor Foner about.
8 How does our policy actually play out in the
9 classroom? The effect on the law school class where a critical
10 mass is dramatic as Dean Syverud testified, and it affects the
11 education of all the students. Just as the lack of a critical
12 mass can leave a class flat, often with the minority students
13 being silent because they don't want to be spokespeople for
14 their groups.
15 Think back to what Dean Syverud said about that. And
16 about what Chrystal James, one of the two black law students
17 at UCLA said about the same topic. They said the same thing.
18 You need a critical mass of minority students so that
19 individuals are free to be themselves. So that all students
20 see that the broad range of ideas and perspectives held by all
21 members of racial and ethnic groups. That's how you challenge
22 stereotypes, and that's how you break them down.
23 Why is racial and ethnic diversity important to
24 achieve the educational benefits we have heard about? Because
25 race is so unique in our society. It's not the same as
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1 religious diversity or special view points. Recall the
2 testimony of Erica Dowdell, the student from Detroit, now an
3 undergraduate at Michigan, who testified as the Intervenor's
4 first witness. She told us that she grew up in and went to
5 schools all the way through high school that were all black.
6 That she had no idea how isolated she had been until she went
7 to a suburban high school in Detroit, in the suburbs where the
8 students had not realized how isolated they were at an all
9 white school.
10 As Professor Orfield testified, this segregation is
11 not just a Michigan problem, and not just a Detroit problem,
12 it's a national problem. As he said, it has "led to a lot of
13 deep ignorance about other groups in the society on the part
14 of each group in the population." He told us that at a group
15 level we hold onto stereotypes and rarely communicate with
16 each other. There is a profound -- it's profoundly unhealthy
17 for us as a society that's been plagued by horrible racial and
18 ethnic oppression and discrimination.
19 Professor Orfield's research showed, again, his
20 quote, "for legal education that students who are in more
21 racially diverse settings see their perspectives change,
22 actually change their minds on important issues, redefine the
23 way they think about their career and their clients. It has
24 very deep effects on all racial groups..."
25 Professor Allen provided human content to this
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1 research because ignorance is the basis for much of racial
2 stereotyping and hostility that minority students face on
3 campuses today.
4 Professors Franklin and Foner made it clear that
5 until we honestly deal with each other we will have difficulty
6 overcoming our past.
7 Other aspects of diversity are important as well,
8 and we value them, but they're not the same as racial and
9 ethnic diversity.
10 Now, it is true that the concept of critical mass
11 does not have precise boundaries. I'm not going to deny that.
12 It is an imprecise notion because it is about human beings
13 reacting to one another in a group. But that's just the nature
14 of the concept. The concept of critical mass is clearly what
15 Bakke says you must have, you can try and get it in order to
16 achieve the benefits of having a racially and ethnically
17 diversed student body.
18 It's not possible to achieve a critical mass under a
19 race neutral system. Professor Lempert testified to that.
20 Dean Lehman and Dean Syverud both testified about Professor
21 Raudenbush's statistical analysis in which he looked at
22 various law school settings, first-year section, first-year
23 half section, dormitory, in order to determine the
24 distribution of minority students under the current system,
25 the current numbers, and under an alternative race neutral
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1 system. And both deans concluded that his analysis indicated
2 that it would not be possible to have a critical mass of
3 minority students under the race neutral system.
4 Dean Syverud was asked if a good law professor --
5 and he's a good law professor -- could compensate for the lack
6 of a critical mass of minority students and still achieve the
7 educational benefits that come from a critical mass, he told
8 the Court that he could not. And he referred to his
9 experiences in an extremely homogenous class in Germany where
10 he has been teaching for a number of years and where the lack
11 of diversity is quite apparent. He explained that the
12 benefits of having a racial and ethnically diversed class
13 cannot be taught.
14 Our Admissions Policy is not an experiment. The
15 amicus brief filed in this case by the American Association of
16 Law Schools makes clear that our policy is mainstream. It was
17 informed, and was informed by history and experience, and it
18 was crafted by law professors and experienced admissions
19 professionals. It has been in place and operational since
20 1992. The Law School Faculty has not found occasion or need
21 to change it in any way. It has resulted not only in the
22 vibrant and diversed student body that was envisioned, but it
23 has also achieved the racially and ethnically diversed student
24 body that it also sought. And the critical mass of minority
25 students has been essential, crucial to its success.
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1 That's the policy, and that's how the policy works.
2 All of this evidence that I've just described, and I believe
3 is completely undisputed. The Law School considers race to
4 the extent necessary to achieve a critical mass of minority
5 students.
6 In response to all of this, I believe the plaintiff
7 relies principally on Professor Larntz who constructed a model
8 that has no relationship to how we actually make admissions
9 decisions. Mr. Larntz agreed, in fact, that all he did was
10 look at data that was given to him and he took it on the basis
11 and the form in which he received it. And he said he was only
12 looking at the results of our decisions, after the fact.
13 Our expert, Professor Raudenbush, explained that it's
14 no surprise that what Professor Larntz got was so skewed
15 because all they had -- and they had the same data -- were
16 limited data in a very rich process, but they just couldn't
17 quantify most of the factors we take into account. And you
18 can't inside the process if all you have are two pieces of
19 information that used in the process, and the process, in
20 fact, is multi, multi factored.
21 Professor Raudenbush is one of the nation's foremost
22 educational statisticians. He has twenty-five years
23 experience. This is his area. And on Monday, Professor
24 Raudenbush gave us a simple example to show why Professor
25 Larntz's odds ratio approach fails. He took two law schools.
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1 This was Exhibit 228. He postulated two law schools with very
2 different admissions policies. We know exactly how the
3 policies worked, he just defined them. One takes race into
4 account a little, and one takes race into a lot. Apples and
5 oranges.
6 Professor Larntz's approach would give exactly the
7 same odds ratio for both schools, even though we know that the
8 extent to which race is taken into account is very different.
9 That means that Professor Larntz is not measuring extent
10 because he couldn't tell the difference the two. The means he
11 couldn't tell the apple from the orange.
12 So what about results, or the causal impact of the
13 policy? Has Professor Larntz given us a good measure of that
14 impact? Absolutely not.
15 First, remember how Professor Larntz chose his
16 analysis. He testified he was given the 1995 grid. That's
17 Exhibit 16, and that grid reflected the admissions decisions
18 that were made that year. It was created, however, after the
19 fact of those decisions.
20 But Professor Larntz relied the grid as reflecting
21 how we actually made the admissions decisions. He thought that
22 the cells on the grid, he took them to be reflections of the
23 significance that our process attached to those rather small
24 differences in GPAs and LSAT scores.
25 As we all know, as I just went through how we make
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1 decisions, it doesn't reflect anything of the sort. We don't
2 take those small gradations into account in our process.
3 Grades are not the same everywhere. They're not just frozen.
4 You just don't look at all GPAs and just take them as GPAs.
5 Remember I think we had a student from -- in one of
6 the examples in the policy, Student Z, who went to the
7 University of Florida. Had a very high GPA. And the question
8 was: How do we evaluate that GPA? And I think we could all
9 go through the process that the Admissions Directors use at
10 the Law School. Are all the colleges and universities same
11 academically? Of course not. What courses are reflected in
12 that GPA? Are the grades trending up or trending down? We've
13 learned a lot in this trial about how you actually analyze
14 that kind of information, and why you would never want to rely
15 just a simple version of that information. Because to reduce
16 someone's academic achievement to a single GPA and then
17 compare it against another student's single GPA, in our view
18 is simply unwise. We want a lot more information.
19 We don't over-rely on the LSAT score either. They
20 are useful when correctly employed. They provide a means, the
21 LSAT provides a means of comparing students across schools.
22 They're also useful in predicting within bounds performance in
23 law school. This is true with respect to all students,
24 whether white or African-American or Latino. But they only
25 predict so much. So the Policy requires caution in their use.
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1 Two or three points difference in the LSAT don't drive our
2 decisions. Remember the scatter charts. You can just see,
3 they don't drive our decisions. The Gospel According to
4 Dennis, that kind of difference doesn't drive our decisions.
5 Now, the Intervenors has called witnesses that have
6 questioned the reliability of the LSAT. However, only one of
7 them, I believe, Jay Rosner, even suggested that we should
8 stop using it. The others cautioned that it should not be
9 overly relied on, and we certainly don't do that. None of
10 those other witnesses knew anything about our policy or how we
11 use the LSAT.
12 Professor Lempert did, and he told this Court yesterday
that the
13 LSAT was validated for both minority and majority students at
Michigan
14 with respect to first-year grades. He also told the Court that
from his
15 experience at the Law School Admissions Council he was unaware of
any
16 study showing that the LSAT was directly biased against
minorities.
17 Though, he like many other witnesses, thought that it may reflect
societal
18 bias. The bottom line is that we certainly do not have a rigid
approach
19 to LSAT scores.
20 Therefore, the predicate for Professor Larntz's work
21 just isn't there. The predicate to his model, his cells, as
22 being the definition of how we make decisions, they are a
23 misrepresentation of how we do make decisions. And,
24 therefore, the model and its conclusions are useless.
25 So Professor Larntz based his whole analysis around
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1 grids that have no role in our admissions process. They're
2 not used in making any decisions at all. In fact, they don't
3 even fairly describe the results that they were -- the results
4 in that they were just limited to these two factors.
5 Why does this matter? It matters because this
6 completely explains why Professor Larntz got the large odds
7 ratios that he did. Not based on how admissions decisions are
8 actually made, but based on very small cells. Professor
9 Larntz, himself, agreed that if you drew the cell lines
10 differently, you would get different results. This is
11 especially true given the tiny numbers of minority students
12 overall and in many of these cells that Professor Larntz
13 emphasized.
14 The decisions that we make are, for the most part,
15 among students that are pretty similar. We have very highly
16 qualified students. Even in Professor Larntz's own terms, the
17 cells, we are talking only about equivalents. I think I want
18 to make that point again. In his cells, by his definition,
19 all the students are exactly the same. That's the only two
20 factors he's got, and they're exactly the same. That's why
21 they're in the same cell.
22 Now, here's my point on this. It's that they are
23 not properly defined. They should be much larger if they were
24 to contain all of the GPA and LSAT equivalents that we would
25 reach.
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1 On Saturday, Professor Larntz was asked if he agreed
2 that the odds ratio would be only two if the cells were drawn
3 to encompass a much larger group of cells. You just take the
4 whole little block that we used. And with the odds ratio it
5 would be two instead, you know, whatever it is, a gazillion.
6 He agreed that it would be around two, certainly would come
7 down he said. He agreed, but he complained that we were
8 ignoring the differences in qualifications among the students
9 in that larger grid that we drew. He missed the point
10 completely here. He's completely missed the point. He has no
11 basis for knowing how we define similar qualifications at all.
12 He just assumed that his cells did that. He asked no
13 questions. He conducted no inquiry. And it's not Professor
14 Larntz's fault, of course, that he was given the grids and was
15 told to rely on them. But the result is that his numbers are
16 completely unreliable, completely unreliable.
17 Also, because Professor Larntz was married to these
18 small grid cells, and he chose to use odds ratios as his
19 methodology, he was forced to throw out large amounts of data
20 in conflict with his hypothesis. Now, we've provided
21 Professor Larntz with much more data; he just chose not to use
22 all's of it. He takes the position that it's not relevant to
23 look at the enormous percentage of minority students that are
24 rejected, thirty-nine percent, the minority students are
25 rejected from his data, that it's just not important that he
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1 look at that. How could that be? Every cell reflects a
2 decision by the Admissions Office. As the exhibits that plot
3 the distribution of admitted and rejected students in 1997
4 that I keep referring to show many underrepresented minority
5 students with high LSAT scores and high GPAs were denied
6 admission. Remember that area of overlap. If race is such an
7 enormous factor in admissions, why is it the case that it did
8 not cause a single one of those rejected minority students to
9 get in?
10 I'm trying to think how Mr. Kolbo wold respond to
11 this. Maybe we sort of heard. Maybe he would say that even
12 if I'm right, and what Professor Larntz has shown is that we
13 take race into account, well, if that's all he wanted to know,
14 I could have saved him a lot of trouble. We consider race as
15 a factor in our admissions process. It's in the policy, we've
16 never denied it.
17 Does it make a difference? Of course. Just like the
18 consideration of every other factor can make a difference.
19 We've never said otherwise. Even on Professor Larntz's own
20 terms, it would make a difference.
21 This is the other major problem with Professor
22 Larntz's analysis. Even taking that analysis on its own unreal
23 terms, that is, that race plays a major role in his cells,
24 that's his own terms, that would only mean that race plays a
25 role in deciding from among applicants that by definition of
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1 Professor Larntz's model are equal in every other respect.
2 Equal, identical, which is to compare applicants who were the
3 same except for their race, that's what his model was trying
4 to do.
5 I'm going to go back to something that Mr. Kolbo and
6 Mr. Purdy used. Maybe it was just Mr. Kolbo in going over
7 some things with some of our witnesses, and that was a cell
8 from Professor Larntz. It was a cell on the 1995 grid. I
9 don't think we have to pull it up at all. I think you'll
10 remember it, but I can describe it. It was a call for the
11 applicants with a GPA of 3.25 to 3.49, that's a B+, and with
12 LSAT scores from 161 to 163 and that's the eighty-fifth to the
13 ninetieth percentile on the LSAT. Highly -- you know, very
14 high scores, very high GPAs. Good students. No question
15 about that. And here's what his cell looked like.
16 In that cell there were a hundred and ninety-eight
17 applicants, and seventeen admitted. And in this cell, a
18 hundred and ninety-one of those applicants were majority
19 students, and ten were admitted. Ten out of one ninety-one.
20 Seven of those applicants were underrepresented minority
21 students and all seven were admitted. Remember, you just kept
22 hearing this over and over again. Seven out seven, but only
23 ten out of one ninety-one. That gives an odds ratio of
24 infinity. This was an infinity cell. The odds ratios were
25 actually beyond astronomical, they were infinity.
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1 But let's look behind the numbers. There were two
2 Native American applicants, both of whom were admitted. There
3 were four African-American applicants, all of them were
4 admitted. And there was one Latino student who was admitted
5 as well. That's it. From a group of a hundred and
6 ninety-eight, their favorite cell, from a group of a hundred
7 and ninety-eight, the law school had a hundred and
8 ninety-eight -- or Professor Larntz has in his cell, a hundred
9 and ninety-eight equivalent. These are applicants who by his
10 factors are absolutely the same. From a group of a hundred and
11 ninety-eight equals, the Law School broke the tie in favor of
12 the minority students seven times. Ten times the majority
13 students got in.
14 So, if we are in Professor Larntz's imaginary world,
15 here's the question that arises in this case: What's wrong
16 with race serving as the tiebreaker in those cells of equals?
17 The answer is, absolutely nothing. If race can be a factor,
18 the premise of the trial of these three issues, if race can be
19 a factor, it can be used to break a tie. It can be used to
20 break a tie in favor of a handful, a handful of minority
21 students in a cell of equals. No one cold fairly conclude
22 that race is excessively weighted as a factor, much less that
23 it's a trump card.
24 One final point here: Professor Raudenbush showed
25 us what it really means for race to make a difference in
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1 admissions. It has a large impact on minority students, but
2 only a small effect on majority students. If we moved to a
3 policy that did not consider race as one of many factors, we
4 would have far fewer minority students but the chance of
5 admission of any majority student would go up by only a few
6 percentage points. Last year, even with the policy in effect,
7 the Law School admitted fifty-eight underrepresented minority
8 students. That's it.
9 The question that this trial is about is whether the
10 Admissions Policy is lawful. Is it constitutional? It
11 certainly is not an accident that the Admissions Policy fits
12 so neatly within Bakke because it was designed to just that.
13 This is from Bakke.
14 "The fourth goal asserted by petitioner is the
15 attainment of a diverse student body. This clearly
16 is a constitutionally permissible goal for an
17 institution of higher education."
18 That's the first sentence of Section 4 in Bakke where
19 Justice Powell goes through diversity.
20 As the policy makes explicit, a diverse student body
21 is necessary for the educational mission of the Law School.
22 Justice Powell's statement in Bakke, "The atmosphere of
23 `speculation, experiment, and creation' so essential to the
24 quality of higher education is widely believed to be promoted
25 by a diverse student body."
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1 That quote is confirmed by the experience of the Law
2 School and its faculty.
3 What does Bakke say about how to go about achieving
4 that diversed student? Well, it looked to the Harvard policy.
5 It attached the Harvard Admissions Policy as an appendix, but
6 it also quoted from the Harvard Policy in the Opinion itself.
7 Here's just a little part of the quote from the Harvard
8 Admissions Policy that's in the Bakke Opinion, quote.
9 "When the Committee on Admissions reviews the large
10 middle group of applicants who are `admissible'
11 and deemed capable of doing good work in their
12 courses, the race of an applicant may tip the
13 balance in his favor just as geographic origin or
14 life spent on the farm may tip the balance in
15 other students' favor."
16 As I said in my Opening, this is just what our
17 Policy contemplates and just what we do. That quotation that
18 I just read from Bakke also includes a reference to the
19 Harvard Policy of "including more than a token number of black
20 students," and notes that this means that "some attention"
21 must be paid to the distribution of students within the class.
22 That's critical mass. Critical mass is necessary to achieve
23 the benefits of diversity that comes from having a racially
24 and ethnically diversed student body.
25 "So long as the university proceeds on an
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1 individualized case by case basis, there is no
2 warrant for judicial interference in the
3 academic process."
4 That's Justice Powell.
5 And literally every important way, our Admissions
6 Policy is indistinguishable from that approved by the Supreme
7 Court in Bakke.
8 I think this point requires just a little
9 elaboration because some of the questions that have come up
10 during the trial have raised some other issues. During the
11 trial and actually and is, Mr, Kolbo and the Court I think at
12 various times have raised issues about how selectivity played
13 in all of this, and maybe we should have random selections.
14 At some point I think I offered to bring President Bok to talk
15 about that, and that was not necessary, we concluded. I still
16 want to address the issue anyway.
17 Can we achieve what we think is important by using
18 a lottery, some random selection. Here's my response: First,
19 it won't work given our applicant pool. Take Professor
20 Larntz's large cell, the one that I was just describing, where
21 I asked, he was asked if you drew the large cell and the odds
22 ratio would go down to two. That cell contained almost all of
23 the students that we made offers to in 1995. If we randomly
24 made offers to that cell, the number of underrepresented
25 minority students that are represented in that cell, would
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1 mean that we would see a fifty percent drop in
2 underrepresented minority students, that we would make offers
3 to. That's how the pool size and the distribution across our
4 applicants works. That's how it works.
5 Another variation on this same idea is that wo do a
6 file-by-file review without regard to race and identify people
7 we could put into that cell, and then we do another random
8 selection, a lottery. But I think here's the main point here:
9 If none of those other factors that we take into account,
10 leadership, for example, correlate with race, and I don't
11 think anyone is claiming that any of those other factors
12 correlate with race, if they don't correlate with race, the
13 results would be exactly the same as if you didn't. A fifty
14 percent drop, okay? The plan just wouldn't work.
15 But there's a more fundamental point. It is that a
16 policy --
17 THE COURT: Your time is up, but we have an
18 agreement that you can --
19 MR. PAYTON: I just have a few more minutes, your
20 Honor.
21 THE COURT: Go on.
22 MR. PAYTON: There's a more fundamental point here.
23 Is that a policy operated that way would not be a policy
24 designed to obtain the educational benefits of diversity. As
25 the testimony in this case has made clear, getting the rich
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1 class that we do doesn't happen by accident. You need to go
2 and look for it. Think about students X, Y, and Z that are in
3 the policy. We can't be sure that they would be admitted
4 under a system that just randomly selected. The Law School
5 would certainly not be able to select them, and that's the
6 central point. We aren't doing this just for numbers. This is
7 not racial balancing. We are in this get the benefits of
8 diversity. And it's certainly not about elevating racial
9 diversity above all other things that we do, or even other
10 aspects of diversity. We read the whole file. We think about
11 all sorts of other factors.
12 That is what Justice Powell was talking in Bakke
13 when he talked about the importance and the legitimacy of
14 considering race as one of many factors. It's important to
15 realize that that is what the compelling interest in diversity
16 is. And once we understand that, it's apparent that some
17 other system, even if it would get racial diversity, but that
18 would do it at the expense of some other ways -- of the other
19 ways in which our careful file-by-file admissions process
20 improves the Law School, is not an alternative means or a more
21 narrowly tailored system to achieve the benefits of diversity.
22 My final point here -- I'm going to go back to Bakke,
23 and it's a point I made a little bit earlier in this argument,
24 and it's this: Nothing the Law School does in the admissions
25 process is different in any way at all from the system
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1 expressly approved in Bakke. Nothing at all. There's just not
2 any evidence at all. And, therefore, if Bakke says that
3 Harvard, the most selective school in the country, can use
4 race and ethnicity and grades and test scores, and still be
5 Harvard, then Bakke says that the Michigan Law School can be
6 the Michigan Law School. That's what academic freedom is all
7 about. We can be, and we can define who we are. And we still
8 can do the things that Bakke says we can do. The Court said
9 Harvard could be Harvard.
10 If there were some race neutral plan that were
11 available, that required Harvard to change, Bakke would have
12 required Harvard to change. It there's some plan that
13 requires us to change, it would be inconsistent with Bakke.
14 I'm at just about the end, your Honor.
15 At the summary judgment argument, the Court inquired
16 of me whether or not Bakke had any precedent. It was an
17 excellent question. The answer I gave referred to Bakke
18 itself. In Bakke, Justice Powell noted that the benefits of a
19 racially and ethnically diversed student body matter as he
20 said "even at the graduate level" where he as he said, "our
21 tradition and experience lend support to the view that the
22 contribution of diversity is substantial." And he concluded
23 by quoting these two sentences from Sweatt by Painter, the
24 1949 case in which the Supreme Court found segregated legal
25 educational unconstitutional.
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1 "The law school the proving ground for legal
2 learning and practice, cannot be effective in
3 isolation from the individuals and institutions
4 with which the law interacts. Few students and
5 no one who has practiced law would choose to
6 study in an academic vacuum, removed from the
7 interplay of ideas and the exchange of views
8 with which the law is concerned."
9 Your Honor, this case is about more than a law
10 school classroom. It's about our future leaders and our
11 society. "It is not too much to say" Justice Powell said in
12 Bakke, "that the `nation's future depends upon leaders trained
13 through wide exposure' to the ideas and mores of students as
14 diverse as this Nation of many peoples."
15 We have testimony about the consequences of
16 Proposition 209 in California. It has resulted in other wise
17 eligible African-American, Latino and Native American students
18 not being at UC Berkeley and UCLA. The few underrepresented
19 minority students at those campuses are isolated and clearly
20 less than would be necessary to constitute a critical mass.
21 Educationally, this is a catastrophe. For those
22 students and for the white students and the Asians who are
23 there, and for the larger university, and for California, and,
24 of course, given the importance of California in our country,
25 it reaches us as well.
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1 No one doubts the need or value of our
2 educational mission. Bakke was profoundly correct in its
3 statements regarding the educational value of a diversed
4 student body. "Compelling" is almost too tame a word. This
5 is, in our judgment, an educational necessity. We ask this
6 Court to find our Admissions Policy fully Constitutional, and
7 to let us go about our important mission of educating our
8 students, future members of the bar, future members of the
9 bench, leaders of our communities and of our country.
10 Thank you, very much.
11 THE COURT: Thank you, Mr. Payton.
12 Let's take again five -- whatever it takes to get
13 the other group of students in.
14 (Court recessed, 10:50 a.m.)
15 (Court reconvened, 10:55 a.m.)
16 THE COURT: Okay. Ms. Massie, you may proceed.
17 MS. MASSIE: Hello, Judge Friedman.
18 Mr. Payton ended up by speaking a little bit about
19 Sweatt v Painter. I want to take us several years forward,
20 and talk briefly about Brown v Board of Education.
21 Out in the hallway, just outside the doors to this
22 courtroom, there's a very famous Norman Rockwell painting of a
23 black child, a girl of six or so, in completely spotless
24 shoes, being escorted by four white men who are armed Federal
25 Marshals. She's carrying her school things and her head is
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1 High with a rotten tomato splattered on the ground behind her
2 in a racist slur written on the wall behind her. And she's
3 surrounded by those armed Federal Marshals as she walks into
4 school.
5 Her name is Ruby Bridges. And the painting depicts
6 the first day of her first grade class when she was the first
7 black student to go an otherwise all white school in New
8 Orleans which had recently been put under a federal court
9 order to desegregate.
10 Ruby Bridges was born in 1954, the year that Brown
11 was decided. Her grandparents were Mississippi sharecroppers.
12 Her mother and father argued over whether to send her to the
13 all-white school. Her father had fought in the Korean War in
14 a segregated unit, and had become cynical while in that
15 experience and felt certain that black people would never be
16 treated as the equals of white people no matter how often and
17 how thoroughly they proved their equal talent and loyalty and
18 determination.
19 But Ruby Bridges' mother who had worked in the cotton
20 fields until the day she gave birth to Ruby Bridges insisted
21 that Ruby would have a better education and a chance at a
22 better job and a better life if she were part of integrating
23 the schools of New Orleans. She convinced Ruby's father, and
24 she convinced Ruby's father not just on the basis of Ruby's
25 prospects according to books that Ruby Bridges has written,
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1 but on the basis of the prospect of all black children in the
2 United States.
3 So Ruby Bridges walked through a mob to get to school.
4 She walked through threats and slurs being screamed at her.
5 She walked past coffins, models of coffins into what
6 segregationists had placed black dolls. Every day, armed
7 Federal Marshals came to her house to pick her up to take her
8 to school. As a result of her attendance at this school,
9 riots erupted throughout New Orleans. Her father was fired.
10 Her grandparents who still lived in the state Mississippi, a
11 whole different state, were kicked off of their sharecropping
12 holdings because Ruby Bridges went to that school.
13 She was the only child in her first-grade class, the
14 single and solidarity child in her first-grade class for her
15 first-grade year because the white parents had taken their
16 children out of the class. And at recess she couldn't go
17 outside to play because she wouldn't have been safe on the
18 schoolyard.
19 The basic underlying question before the Court is:
20 Whether that year of walking through a violent mob every
21 school morning in the year 1960, not very long ago, whether
22 that year of walking past death effigies, and through slurs,
23 of learning the alphabet alone, and watching white children
24 play through the window during every recess, whether that year
25 in the life of Ruby Bridges will have been lived, will have
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1 been survived, will have been undergone in vain.
2 We've made real progress. But the amount of
3 progress that we've made is still in all completely and
4 unacceptably limited. Our progress towards equality and
5 fairness and integration has always required tremendous,
6 conscious efforts and those are the efforts that are required
7 now.
8 As Gary Orfield testified, the state in which this
9 Court sits is now far more segregated than the Louisiana and
10 the Mississippi in which the Ruby Bridges' story, in which
11 Ruby Bridges' history took shape.
12 We cannot afford false comforts. We can't afford
13 complacency. And we can't pretend that there's nothing that
14 we can do. Our options are: We can keep moving forward, or
15 we can fall backward, closer to the conditions that Ruby
16 Bridges faced, and faced very recently, just a generation ago.
17 So to us, Judge, the real question is: Is the painting
18 in the poster just outside the courtroom doors, there to put
19 our minds falsely at rest, to put our minds to sleep, to make
20 us feel a shallow self-satisfaction, or is it to remind us of
21 how far we've come of what's taken, and what it's cost to come
22 this far, of how precious, how terribly precious our progress
23 is, how hard fought it is, and how far we still have to go.
24 It's in that context that I want to talk about the
25 three factual questions you posed for the parties. Your first
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1 question: To what extent -- I'm paraphrasing this -- is race
2 a factor in admissions at the University of Michigan Law
3 School? Our answer I think you already know is: Not enough,
4 not merely enough. Race should be much more of a factor in
5 admissions at the University of Michigan Law School. I'll
6 come back to that in more detail in a moment.
7 Your second: Is there a double standard under which
8 minority and whites students are treated differently? Our
9 answer to that: There's absolutely a double standard, but
10 it's the opposite of the one implied by the question and by
11 the plaintiffs' lawsuit. There's a systematic double standard
12 that operates to favor white people, that operates to the
13 disadvantage of minorities, of black, Latino and Native
14 American applicants. And affirmative action operates to
15 offset that double standard incompletely. To off set it a
16 little bit, to make it less of a double standard.
17 Your third question: Does affirmative action have
18 the effect of making things more fair given the bias and
19 discrimination and inhere in admissions criteria like the
20 SLAT, and undergrad grades, the discrimination, bias,
21 unfairness that are given effect by, that are operationalized
22 by those numerical criteria. And as you know, our answer to
23 that question is that that is so without any doubt.
24 Much on the evidence on our points about grades and
25 the LSAT is completely uncontested, not just uncontroverted by
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1 proof, but not contested at all by the plaintiff.
2 On the question of the extent to which race is a
3 factor in admissions at the University of Michigan Law School,
4 the Law School considers race in admissions as Mr. Payton has
5 just argued to the extent that it's needed to achieve a
6 critical mass of minority students. This approach is clearly
7 in compliance withe the letter and the spirit of the Bakke
8 case, and with any understanding of the importance of
9 diversity and integration in legal education.
10 The alternative, the alternative to ensuring the
11 enrollment of a critical mass of minority students is
12 tokenism. That's the unacceptable situation that's been faced
13 by Chrystal James throughout her law school career at the
14 University of California Los Angeles post affirmative action
15 there. And it's the situation that's been -- that was faced
16 by John Hope Franklin throughout his academic career as a
17 student because despite all of John Hope Franklin's
18 accomplishments, despite all the recognition he's achieved at
19 every stage of his intellectual life, he told us that he has
20 never been able to escape feeling like a token. John Hope
21 Franklin has always felt like a token until he arrived quite
22 recently at the Duke University History Department which was
23 much more integrated than the other departments where he had
24 been hired, where there were already black scholars, black
25 historians.
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1 Chrystal James in some of the most moving testimony
2 in this case made it clear that the token numbers at UCLA, the
3 fact that there was only one other black student in her class,
4 the lack of a critical mass of minority students has
5 absolutely thwarted her legal education, and harmed her own
6 sense of herself, of her potential, of her promise.
7 Without enough attention to race, to enroll a
8 critical mass in legal education every black and Latino and
9 Native American student would face the situation like the one
10 that Chrystal James described; like the one that John Hope
11 Franklin has faced his entire life. That situation has much
12 more in common with a medieval ordeal of some kind than it
13 does with the legal education. And it means that the student,
14 the black, the Latino, the Native American student is
15 constantly either warding off or absorbing a set of
16 stereotypes and stigmas.
17 It would be unacceptable for the Law School to do
18 anything less than to try to enroll a critical mass of
19 minority students.Again, there's no question that the Bakke
20 case permits their doing on.
21 Where we have achieved the measure of integration
22 and diversity has profoundly benefitted everyone as testimony
23 across from several generations and from across this entire
24 continent repeatedly made clear over the course of the trial.
25 In fact, our only quarrel with the Law School on this point is
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1 that we don't believe they've yet succeeded in reaching
2 critical mass. The School has made real steps towards
3 desegregating, and toward reaching the intellectual gains that
4 accompany diversity. But nevertheless, Walter Allen's study
5 and other testimony makes it clear that there isn't yet a
6 critical mass at the Law School which is to say that more
7 blacks, more Latino, more Native American students must enroll
8 there in order for the students to be able to function freely
9 as law students in order to dispel stereotypes and stigma, and
10 in order to counter-act the very extreme pressure that those
11 students face in their isolation.
12 Walter Allen testified that the students at the Law
13 School, the minority students at the Law School feel that they
14 are under-seized, they feel out of place in territory that's
15 defined by the putative but very equally felt entitlement of
16 white students to be there at the Law School in
17 contra-distinction to the sense that the minority students get
18 that they're interlopers, that they're not treated as having
19 the same right to be there, they're not treated as being
20 equally qualified in particularly post the initiation of a
21 lawsuit like this. The stigma that those students face
22 increases dramatically. Just like Chrystal James pointed out,
23 that it took going to UCLA after the elimination of
24 affirmative action for her to feel the full stigma of racism
25 as it applies to her sense of her own abilities and they were
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1 regarded by others around her.
2 But the problems at the Law School are essentially
3 problems, fundamentally problems of too few numbers. They're
4 problems that you can solve, that you can help solve. We need
5 a holding here that will allow the Law School to enroll
6 greater numbers of minority students so that there can be a
7 critical mass there. A holding that says that the Law School
8 can take inequality into account, can take the need to offset
9 inequality into account in making its admissions decision, in
10 designing its affirmative policy, will make the students at th
11 Law School, all of them, of all races, have a far richer and
12 better legal education.
13 Your second question: Is there a double standard?
14 Mr. Kolbo suggested that the Intervenors' view is that we
15 think there's a double standard, we think it's fine, we think
16 it's justifiable. That's not so. We think the double
17 standard runs the opposite way from what the plaintiff
18 contends and what the question suggests. The evidence shows
19 indisputably and overwhelmingly that there's a built-in double
20 standard in education generally, not just society at large,
21 but that's true too, and there was evidence of that at trial,
22 but in education and specifically in law school admissions,
23 that that double standard favors white students and white law
24 school applicants.
25 There are several components of this double standard
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1 which fundamentally reflects and expresses how much race and
2 racism continue to be a defining access in this society. But
3 the components of the double standard combine to make race a
4 systematic element of education and admissions. Systematic to
5 use the words of Walter Allen following his study of feeder
6 campuses to the U of M Law School and the U of M Law School
7 itself.
8 There's a segregation and inequality in K through 12
9 schooling and that you heard about from a number of witnesses
10 including Erika Dowdell, including Gary Orfield, including
11 Eugene Garcia. Beyond that, beyond the connections between
12 race and class in this country, shameful enough fact in
13 itself, there's a set of ways in which race operates
14 independently of class in this context. There's a set of ways
15 in which race and racism structure the educational experiences
16 and performance of even the most economically privileged
17 minority student.
18 These modes include differences in material
19 resources. They include unequal treatment that is racialized,
20 that is based on race, that is racist by even very well
21 meaning white people. They include the stigma and the false
22 racist stereotype of intellectual inferiority that effects
23 every black student regardless of class, and that it also
24 effects Latino and Native American students.
25 Those stereotypes and stigmas have an impact on
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1 academic performance that can be and has been empirically
2 demonstrated and proven. These dynamics are described in the
3 work of Claude Steele, and other educational experts who
4 testified in the case. And perhaps most vividly by the
5 students who testified for the Court. It's very difficult but
6 it is imperative for white people who haven't ever faced the
7 systematic degradation of their mental capacity and worth
8 based on race, to grapple with the extent to which their own
9 privilege in this regard has shaped their experiences, to
10 grapple to the extent to which their educational achievements
11 no matter how hard fought, no matter how impressive, are
12 always made, are always reached under circumstances and
13 conditions that favor them while disadvantaging and
14 disfavoring the success of minority students.
15 There are other questions that are involved in the
16 resolution of whether or not there's a double standard in
17 place in law school admissions including differential access
18 to test preparation classes, basic questions of test
19 construction, questions of what undergraduate GPA means in the
20 context of race and racism in this society, and in our
21 educational system. And I'll return to some of those shortly.
22 The bottom line here, Judge Friedman, is that
23 there's a sharp double standard, and that to take account of
24 race and racism is the only way to offset the double standard
25 arises out race and racism. There is no other way to deal
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1 with it than to take account of race and racism. So
2 affirmative action is the only way to reduce what would
3 otherwise be an untrampled double standard in admissions.
4 We can begin to measure the extent of the double
5 standard -- and I'll talk about this more in a bit -- by
6 looking at what has happened in California. Another way of
7 saying that is we can begin to measure the extent of double
8 standard of unfair inequality that is pressed on black people
9 and other minorities through the educational system that is
10 ratified and operationalized by admissions systems when they
11 dibby out opportunity and deny opportunity on the basis of
12 opportunities that have already been unfairly and unequally
13 distributed by looking at the disparities between
14 representation in a given educational program, and
15 representation of different populations in the population as a
16 whole, that the starting point for figuring how much of a
17 double standard there is because we start from the premise
18 that we are all created equal. Any disparities in performance
19 and attendance at law school and so on come out of problems in
20 our educational system, not problems in black children, then
21 young adults, then law school applicants; Latino children,
22 young adults, law school applicants; Native American children,
23 young adults, law school applicants. Those are problems of
24 race and we have to deal with them by taking account of race.
25 Your third question, does affirmative action have the
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1 effect of reducing the unfair impact of using test scores and
2 grades in law school admissions. Here, I think the evidence
3 is absolutely clear, that affirmative action is the one way of
4 taking account of the unfairness and bias that are put into
5 effect by the use of those measures. And as I said earlier a
6 lot of this evidence is not just un-countered by evidence from
7 the plaintiff, but completely and totally uncontested.
8 Undergrad GPAs and LSAT scores are thoroughly
9 saturated with unwareness and bias. They don't measure real
10 achievement. They don't measure the capacity to learn law.
11 And as Rick Lempert testified yesterday, they certainly don't
12 measure the capacity to practice law and to be successful in a
13 law practice.
14 Walter Allen's testimony showed that undergraduate
15 GPAs -- and again he was focused on the feeder schools to the
16 University of Michigan Law School reflect continuing problems
17 of racism and bias and the pressure of stereotypes, the
18 downward pressure on academic performance of stereotypes that
19 persist even for the best prepared and highest achieving
20 minority students, the student who've overcome countless
21 burdens that their white counterparts have not had to overcome
22 to arrive at these campuses, to have the ambition to go to law
23 school still face a set of factors that make their GPAs means
24 something different. They mean something different in those
25 grids that Professor Larntz is found of. They simply don't
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1 mean the same thing across race. And the Court should not
2 regard them as meaning the same thing across the race.
3 After the testimony that's been presented here it
4 would be to simply ratify the racism and racial dynamics that
5 produce those differences to regard those grades as meaning
6 the same thing across race.
7 Another source of differences in GPAs, of course,
8 differential K through 12 education. I mentioned that briefly
9 before. It's clearly the case that for students who arrive on
10 a campus like the U of M Ann Arbor, or UC Berkeley, or Harvard
11 of MSU, coming out of Cass Tech like Erika Dowdell, versus
12 coming out of a better funded mostly white suburban school,
13 there will be an impact on GPA. In some sense that's prior to
14 the question of when you get there, the racism and the racial
15 dynamics that are still there to impede academic performance.
16 They're in some ways related, in some ways different things.
17 Both very powerful factors that show up in aggregate
18 differences in GPA. Affirmative action has the effect of
19 offsetting those differences, of offsetting what would be the
20 astonishing unfairness of looking at numbers, credentials that
21 are shaped by racism and unfairness, and simply rubber
22 stamping them, ratifying them, using them as a basis for
23 imposing more hardship, more exclusion, less opportunity at
24 every stage of the educational process.
25 The evidence on LSAT is just as compelling, Judge.
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1 There's untested evidence, for example, from David White,
2 setting the bias I've just discussed in grades, shelfing that
3 completely for the sake of argument. He controlled for grades
4 at the same undergraduates schools and found that 9.2 gap
5 persisting in LSAT scores between black and white law school
6 applicants. Two grads from Michigan State, or from Yale, or
7 from whatever school, but the same school, they have the same
8 GPA, they have a 9.2 point gap, a gap of 9.2 points.
9 You could take Professor Larntz's grids and --
10 again, this is neither controlling for grades. It's only a
11 step toward what would be fair and add 9.2 points to the LSAT
12 scores of every black students in those grids. That would be
13 far less of a double standard than what the plaintiff is
14 proposing. It wouldn't be enough because it's not controlling
15 for the differences in grades. They are used as the base
16 measure by David White, and it's not controlling for all the
17 test-making dynamics that Professor Shapiro told you about,
18 the mechanics of test production, the selection of test items
19 that mean the big gaps are reproduced and have a tendency to
20 be increased statistically over time by question selection
21 procedures. Those tests are made in a completely internal
22 process. There is no external reference. And it's just a
23 circular process that reproduces biases and test score gaps.
24 And what the plaintiff would have you do is ratify that
25 process and ratify in inequalities and the unfairness that it
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1 produces.
2 First of all, the plaintiffs they're not defenders
3 of the LSAT, and they're not defenders of any particular
4 criteria, that's their whole proof. That's all their proofs
5 in this case are based on. That's their proof of
6 discrimination and those aggregate differences, but those
7 aggregate differences don't prove discrimination against white
8 people, Judge, they prove discrimination against black people,
9 against Latinos, and against Native Americans.
10 You just can't eliminate the LSAT. We agree with Mr.
11 Payton on that, as on most things in the case, the one
12 exception being whether there's critical mass at the Law
13 School now. You can't just eliminate the LSAT. That would be
14 a complete evasion of the problem. That would be a dodge.
15 The SLAT is only one measure that ratifies, that re- affies
16 (sp), that puts into effect, compromises bias and
17 discrimination. There's also grades. There's anything else
18 you could select. You can't use a cutoff point that relies on
19 the LSAT because you would have the exact same problem. You
20 can't -- you would end up sensibly with a resegregated
21 profession, a resegregated law school because there is --
22 given the bias in the test, and given the distribution curve,
23 there is no cutoff point that you can select for that purpose.
24 Even if it would be proper to select a cutoff point in
25 psychometric terms, which it would not. But there is no
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1 lottery solution to this situation.
2 Race is the dynamic, racism is the problem. We need
3 to take those into account. There's no shortcut.
4 I want to talk briefly about the question of
5 selectivity. The truth is, Judge Friedman, legal education in
6 general is highly selective. There are more people trying to
7 go to law school than there are slots for them. That's one of
8 the basic reasons why the supposed tension between selectivity
9 and diversity that's been invoked in the case is a false
10 tension.
11 We can't have a lottery or a cutoff for the reasons
12 just discussed. There is no solution of eliminating the LSAT
13 and grades. That won't work because it doesn't get at the way
14 any criterion is going to be effected with racial bias and
15 discrimination.
16 There are going to continue to be schools like the
17 University of Michigan as Gary Orfield and Eugene Garcia
18 testified are schools that train leaders. There are flagship
19 schools. They're going to be more competitive in admissions
20 than most other schools. The only question is: Will they be
21 reserved exclusively for white people. Or will they be
22 democratic institutions of the state that reflect the
23 diversity of the state's population that moves toward a
24 measure of integrating the leadership of our society, of
25 integrating an integrationist leadership of our society.
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1 Those schools in addition to themselves matter, key
2 the rest of the system. If affirmative action is eliminated
3 at schools like Berkeley, Michigan, other top state schools,
4 it gets eliminated throughout the legal education system, and
5 throughout the higher education system. That would be the
6 outcome of the wrong holding in this case. And what that
7 would mean is not just a redistribution.
8 Dean Garcia and Professor Lempert were both very,
9 very helpful on this point. Dean Garcia said look what we've
10 seen in California is the resegregation of the UC system. But
11 it's going to get worse because at the schools which are less
12 competitive, less well regarded, where it isn't as easy to get
13 into grad school at the other end, to get into law school at
14 the other end, to get a high-paying job at the other end, to
15 have the kind of opportunities that higher education is
16 designed to further at the other end. At those schools now,
17 two we're seeing reductions in the numbers of underrepresented
18 minorities as those schools become increasingly competitive
19 with the so-called cascading effect of students who are black
20 and Latino and Native American not being admitted to Berkeley
21 or UCLA, and going -- being admitted to schools that are
22 further down than in a UC hierarchy.
23 But as Eugene Garcia testified, essentially what
24 "cascading" means in the end is that black and Latino and
25 Native American students will cascade out of the system
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1 altogether.
2 We have a study that was conducted on law schools
3 specifically that Rick Lempert testified about yesterday that
4 made the point in the specific context of legal education,
5 Judge. If affirmative action is eliminated in legal
6 education, it doesn't mean that there will be separate and
7 unequal tracks of legal education, not that we would find that
8 in any way acceptable. But it doesn't mean that. It means
9 something much worse. It means that legal education would be
10 essentially all white with the exception of the historically
11 black colleges, at the state universities which have law
12 schools. Legal education would be virtually all white. We
13 would be going back to something just, just shy, just this
14 side of Sweatt v Painter if we were to do that.
15 The statistical analysis proves it beyond any
16 question. It's uncontested. What it would mean: Is the
17 resegregation of the legal profession. That's what it would
18 mean. There is no conflict in the context of legal education
19 in any event. We would argue this more broadly for higher
20 education. But sticking with legal education at issue in this
21 case, between the question of selectivity and diversity and
22 integration that can be resolved by simply becoming less
23 selective. There are more applicants than there are spots, and
24 we need integration in every law school, in every law school.
25 A slightly different perspective on this question: We
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1 say you don't even have to reach the University's Bakke
2 dissent. That's because the plaintiff has not made out a case
3 of race discrimination. There's no prima facie case here.
4 They're relying on Larntz's aggregate differences in numbers.
5 Whether they rely on the statistics or simply on the averages,
6 or whatever part they're relying on, it doesn't matter, that's
7 what they're relying on, and those numbers don't show
8 discrimination against white people. They haven't even
9 contested the evidence against what those numbers mean, and
10 how those meanings are different across race. How you have to
11 regard them as being different across race after everything
12 you've heard from the people who come up here to take the
13 stand to testify about what's behind those numbers, about what
14 those grades mean and what those test scores mean, Judge.
15 They don't mean the same thing across race. And it would be a
16 travesty for this Court to regard them as meaning the same
17 thing across race. That would be a double standard. That
18 would be a double standard.
19 And a final perspective on your third question: How
20 much should race matter in law school admissions? And to that
21 we respond: It should matter much more than it does. It
22 should matter enough that it offsets, that it fully offsets,
23 instead of just starting to offset the racism and bias that
24 saturate the credentials and that saturate the educational
25 experiences of all students, but differentially depending on
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1 their races.
2 There, again, we suggest the fair starting, a fair
3 measure of whether race is being sufficiently taken into
4 account is the population for the relevant unit. That could
5 be the state. It could be the nation. In the case of a law
6 school like the University of Michigan, it would probably be
7 some of both, but that's a starting point for analyzing
8 whether race is being taken into account in a way that is
9 sufficient to offset the unfairness that's operationalized in
10 our educational system, whether it's being taken into account
11 enough to avoid simply perpetuating and intensifying the
12 existing inequalities in education.
13 When it's not taken into account enough, what happens
14 is what happened in California. We have a grand social
15 experiment unfortunately in California. We know what the
16 plaintiff's case looks like on the other end if it's
17 successful. And it's frankly hard to hear the plaintiff puts
18 herself in Brown versus the Board of Education when what's
19 being fought for is the result of that social experiment, is
20 the resegregation of the UC system. Is what Tania Kappner
21 described yesterday in her students, in what they their
22 futures as being, and in the terrible struggle she has to
23 maintain their level of hope of engagement in their own minds,
24 in their intellectual possibilities that they know. And until
25 they reverse their ban which they are all fighting to do, they
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1 have no chance of getting a decent higher education in the
2 state of their birth not matter what they do, how hard they
3 try, how many hours they spend doing their homework.
4 That's the outcome of the social experiment that's
5 being proposed for this state. We don't need it here, Judge.
6 It's just like Chrystal James said. She said her co-student,
7 the only other black student in her class, said -- because she
8 didn't want to testify, you go there and you tell them what
9 happened here and not to do it there. We want to repeat that
10 message to you because we know what this means. It's been
11 done in California. They're fighting hard to reverse it. We
12 have very confidence that they will succeed, but we don't need
13 to go through five, six, ten years of agony, of resegregation,
14 of increasing inequalities, of young people losing hope in
15 this state.
16 I'd like to go back to Ruby Bridges briefly, Judge,
17 and to other struggles of desegregation which extended into
18 higher education. As you know, Gary Orfield described
19 affirmative action as voluntary deseg plans for higher
20 education. The desegregation of higher education has not
21 always been voluntary.
22 And I want to remind the Court of Mississippi in
23 1962, when James Merridith desegregated the University of
24 Mississippi, and dozens of people died, literally fought and
25 died over the question of whether that campus would be
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1 integrated. There was a small army of federal troops there on
2 the campus as I'm sure the Court is aware, and there were
3 armed battles between segregationists and federal forces.
4 It was an echo of the Civil War that Eric Foner
5 testified about. The Civil War that really stood for the
6 nation's decision to pay an incalculable price to move toward
7 our national goals of equality and democracy and freedom. It
8 was a war over the question of black equality and freedom, and
9 it was the costliest and the bloodiest war in this nation's
10 history.
11 In fact, the United States lost more lives in that
12 war than it has lost in all the other wars before or since.
13 Ten times as many American lives as in the whole span of the
14 Vietnam War. And the reason why and the question of race and
15 race equality is so fundamental to this society. It took that
16 many lives and it was worth that many lives, and that was the
17 collective judgment of the nation.
18 Our progress towards more democracy and freedom,
19 toward greater equality for all has always taken very serious
20 effort. It's never been quick and painless. But we have made
21 real progress. And the level of progress for all us has
22 always been in some sense keyed because of the history which
23 Eric Foner testified about. Not that he was trying to say in
24 any way that affirmative action is a measure to compensate for
25 the history of discrimination in this country, but that
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1 nothing ever could. There's no affirmative action program
2 that could make up for it. It's not that. It's how do we
3 move forward. It's how do we move forward. That's what the
4 testimony has all been about.
5 But the progress that we've made in general towards
6 greater democracy, equality has been keyed to the question of
7 black equality because of the history of a slave system
8 Professor Foner described and so on. And the progress that
9 we've made to quote John Hope Franklin. And I'm quoting him
10 exactly, "has been miraculous." We've made miraculous
11 progress.
12 To us what that means, coming a person who the night
13 before he was to receive the Presidential Medal of Freedom,
14 was handed a coat and ordered to check it just because he was
15 black, and it was presumed that he was a person who was there
16 to check coats, is something that we should all aspire to, and
17 something that should give us great hope in our common cause.
18 John Hope Franklin's lack of bitterness of what he
19 has faced in his life, he's angry, yes, but he's not bitter,
20 and he knows that we can keep moving forward if we try. His
21 lack of bitterness, his optimism should give all of us
22 optimism.
23 And in a sense that's so, Judge, because to the same
24 extent, to the precisely same extent, as our case has been
25 directed at, the fundamentality and the importance, and the
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1 significance of race in our common life has been directed at
2 our shared humanity. It's been directed at our shared and
3 common prospect, to the same exact extent as it's been
4 directed at the question of race and the racial problems and
5 divisions, and unfairness, and inequality that we still face.
6 It is about our common humanity in the end.
7 Somebody like John Hope Franklin embodies the truest
8 express of that humanity, that understanding and grace.
9 That brings me to the most important and the most
10 basic thing that every one of our witnesses had to say to the
11 Court, to the public, but in particular to the Court, that we
12 all have the same future, all of us have the same future. The
13 future of affirmative action and integration is my future, and
14 it's your future. And it's my future in part because I'm a
15 woman and the measures -- the gains that women have made in
16 the last generation are due overwhelming to the civil rights
17 movement and to affirmative action. Those programs have so
18 expanded democracy and rights to participation economically,
19 intellectually, socially in education, politically in every
20 way, that's what we owe our progress to. It's my future. And
21 I noticed from the names on the plaques in your chambers,
22 you've hired a lot of women clerks over the years. And it's
23 their futures, too. It's all of our futures.
24 It's also my future as a person who is white, and as
25 a human being in this society. It's a future of everyone in
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1 this room regardless of age, regardless of gender, regardless
2 of race. It's John Hope Franklin's future, Faith Smith's
3 future. It's Connie Escobar's future. It's Frank Wu's
4 future. It's the future of Tania Kappner's students. It's
5 the future of the thousands of people from across the state of
6 Michigan who have gathered several times now in the Ann Arbor
7 campus, to declare their support for affirmative action on
8 Days of Action that have been put together on that campus.
9 It's the future of the tens and hundreds of thousands of
10 working class and poor white people who Gary Orfield has
11 testified who faced it tremendously from the way in which
12 affirmative action programs including in the state of Michigan
13 opened up higher education to lower-income white people,
14 democratized opportunity. The extent to which affirmative
15 action policies operated as a wedge that broke down, started
16 to break down in trench systems of privileged and of
17 unfairness.
18 It's the future of the student from the U of M and
19 from Detroit high schools who have filled this courtroom on
20 almost every day of this trial. It's your future, too. It's
21 your future, too, Judge Friedman. We'll move together either
22 forward -- we'll move forward together, or we'll move back. We
23 can make more steps toward equality and toward justice and
24 toward democracy, or we can allow ourselves to be pushed
25 backward, crippled, hampered, fall short of our common and
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1 individual potential. It's all of our future. We all have
2 the same future. Help make it a bright one.
3 THE COURT: Thank you.
4 I want to take the time and I've said it many, many
5 times before and I think it cannot be said enough, to the
6 lawyers and to the way that they have conducted themselves in
7 this case. I am an advocate of civility between people. And
8 oftentimes I don't always see it in our professional and it is
9 disturbing. And there's going to come a time I hope not a
10 long time, but it appears not too long, that I'm going to take
11 a leadership role in this court, and one of the issues that I
12 have is the issue of civility. And this case is going to be
13 the textbook case. This case has been going on a long time.
14 I think we have shown that lawyers can conduct themselves in
15 the most professional, professional way, with sincerity and
16 vigor for their clients, but also civility towards each other,
17 but as important as each other, towards witnesses, towards the
18 kinds of things that are important. And as I have indicated
19 as I've said many, many times I appreciate it. I think our
20 system appreciates it. And I think you have well served each
21 of your clients, not only in terms of the lawyering that you
22 have done, but the civility that you have shown towards each
23 other, for the Court, very frankly, towards the witnesses. And
24 it is a textbook case.
25 Whenever you have a case that's been going on since
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1 1997, and there is only one dispute that I had to decide that
2 was -- and the parties were able to sit down and to work out
3 the kinds of things that are important, the only dispute I had
4 to decide was the legitimate kind of dispute that didn't take
5 civility. There were outside parties, students of that
6 particular dispute. So I would be remised and I've talked
7 about it on many, many occasions. I've talked about to
8 colleagues, to other lawyers, and so forth, that each of you
9 have well served the clients to whom you represent. You
10 obviously don't agree on lots of issues, but you were able to
11 do the finest and the best lawyering. And for that I think
12 society as well as our profession have been well served. So I
13 want to thank you for that. I will make every attempt to do
14 the best I can, as I think I've indicated before. It's a
15 tough case. It's probably the toughest case I've had to be
16 involved in. I can assure the lawyers that the efforts that
17 you have put in, the sincerity that you've put in, I will give
18 back. I will do the best that I possibly can no matter what
19 the outcome is. I can't tell you what the outcome is. And I
20 will try to get you a decision as rapidly as possible, but
21 that time is not my important consideration. My important
22 consideration is to give each piece of evidence, each argument
23 the kind of attention that it deserves based upon the
24 lawyering and the positions of each party and the sincerity of
25 each party. So I can't tell you when the decision will come
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1 out. All I can tell you is I'll do it in a manner that will
2 hopefully be consistent with what my duties are and being fair
3 to both sides.
4 Okay, we'll stand in recess.
5 (Proceedings concluded, 11:45 a.m.)
6
7 CERTIFICATE
8 I, JOAN L.MORGAN, Official Court Reporter for the United
9 States District Court for the Eastern District of Michigan,
10 appointed pursuant to the provisions of Title 28, United States
11 Code, Section 753, do hereby certify that the foregoing
12 proceedings were had in the within entitled and numbered
13 cause of the date hereinbefore set forth; and I do further
14 certify that the foregoing transcript has been prepared by me
15 or under my direction.
16
17 ____________________
JOAN L. MORGAN, CSR
18 Official Court Reporter
19 Detroit, Michigan 48226
20 Date: __________________
21
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