1

             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.
                _________________________________________/
            11

            12                      BENCH TRIAL - VOLUME 15
                                                
            13
                                  FRIDAY, FEBRUARY 16th, 2001
            14

            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

            18                             -   -   -

            19  Appearances:

            20
                           Kirk O. Kolbo, Esq.,
            21             R. Lawrence Purdy, Esq.,

            22   On behalf of the Plaintiff,

            23

            24             John Payton, Esq.,
                           Craig Goldblatt, Esq.,
            25
                 On behalf of the Defendants Bollinger, et al,










                                                                     2

             1
                                           -   -   -
             2
                 APPEARANCES (Continued):
             3

             4                George B. Washington, Esq.
                              Miranda K. S. Massie, Esq.
             5
                              On behalf of Intervening Defendants.
             6

             7

             8

             9

            10

            11

            12

            13

            14

            15

            16

            17

            18

            19

            20              Joan L. Morgan, Official Court Reporter

            21         Proceedings recorded by mechanical stenography.  
                      Transcript produced by computer-aided transcription.
            22

            23

            24

            25











                                                                     3

             1

             2                           I  N  D  E  X

             3                             -   -   - 

             4
                 CLOSING ARGUMENT                              PAGE
             5
                 BY MR. KOLBO                                   4
             6
                 BY MR. PAYTON                                 33
             7
                 BY MS. MASSIE                                 67
             8

             9

            10

            11

            12

            13

            14

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            17

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            25



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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

            22

            23

            24

            25



                                 GRUTTER -v- BOLLINGER, ET. AL.



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