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




                                                                     1



             1                  UNITED STATES DISTRICT COURT



             2               FOR THE EASTERN DISTRICT OF MICHIGAN



             3                        SOUTHERN DIVISION



             4



             5  BARBARA GRUTTER,



             6  For herself and all others



             7  Similarly situated,



             8                 Plaintiff,



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



            10  LEE BOLLINGER, JEFFREY LEHMAN,



            11  DENNIS SHIELDS, and REGENTS OF



            12  THE UNIVERSITY OF MICHIGAN,



            13                 Defendants,



            14      and



            15  KIMBERLY JAMES, et al..



            16                 Intervening Defendants.



            17   ---------------------------------/      VOLUME  1



            18                               BENCH TRIAL



            19                     BEFORE THE HONORABLE BERNARD A. FRIEDMAN



            20                       United States District Judge



            21                    238 U.S. Courthouse & Federal Building



            22                        231 Lafayette Boulevard West



            23                               Detroit, Michigan



            24                         TUESDAY, JANUARY 16TH, 2001



            25























                                                                     2



             1



             2             APPEARANCES:   --



             3             FOR PLAINTIFF:  Kirk O. Kolbo, Esq.



             4                             R. Lawrence Purdy, Esq.



             5



             6             FOR DEFENDANTS:  John Payton, Esq.



             7                              Craig Goldblatt, Esq.



             8                              On behalf of Defendants Bollinger.



             9                              et. al.



            10



            11                              George B. Washington, Esq.



            12                              Miranda K. S. Massie, Esq.



            13                              On behalf of Intervening



            14                              Defendants.



            15



            16             COURT REPORTER:  Joan L. Morgan, CSR.



            17                             Official Court Reporter



            18



            19



            20



            21



            22



            23



            24



            25

















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                                                                     3



             1



             2



             3                            I  N  D  E X



             4



             5             WITNESS:                             PAGE:



             6  MOTIONS IN LIMINE.                                4



             7  OPENING STATEMENT ON BEHALF OF PLAINTIFF.



             8  Mr. Kolbo                                         33



             9  OPENING STATEMENT ON BEHALF OF DEFENDANT



            10  UNIVERSITY OF MICHIGAN AND INDEPENDENT DEFENDANTS



            11  Mr. Payton                                        38



            12  OPENING STATEMENT ON BEHALF



            13  OF THE INTERVENORS



            14  Ms. Massie                                        65



            15  WITNESSES PRESENTED ON BEHALF OF PLAINTIFF



            16  ALLAN STILLWAGON



            17  Direct Examination by Mr. Kolbo                   81



            18  Cross-Examination by Mr payton                   114



            19  Cross-Examination by Mr. Washington              119



            20  ERICA MUNZEL



            21  Direct Examination by Mr. Kolbo                  126



            22  Cross-Examination by Mr. Goldblatt               201



            23  Cross-Examination by Mr. Washington              251



            24  Redirect Examination by Mr. Kolbo                261



            25   Recross-Examination by Mr. Goldblatt            273

















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                                                                     4



             1



             2                  E  X  H  I  B  I  T  S



             3                                        MARKED   RECEIVED.



             4  Exhibit Number  4                               133



             5  Exhibit Number 15                               194



             6  Exhibit Number 14                               194



             7  Exhibits Nos. 180-183                           223



             8  Exhibit Number 10                               272



             9  Exhibit Number 11                              272



            10  Exhibit Number 106                             274



            11



            12



            13



            14



            15



            16



            17



            18



            19



            20



            21



            22



            23



            24



            25











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                                                                     5



             1                  Detroit, Michigan



             2                  Tuesday, January 16th, 2001



             3                  (At or about 9:30 a.m.)



             4                             -- --- --



             5             THE CLERK:  Calling case, Grutter versus Bollinger,



             6   et al., case number 97-CV-75928.



             7             THE COURT:  Good morning.



             8              You may be seated.



             9              May we have appearances please, starting with the



            10   plaintiff.



            11             MR. KOLBO:  Good morning, your Honor.  Kirk Kolbo.



            12   I'm here with my colleagues, Mr. Larry Purdy, Kai Richter.



            13   And my client, Barbara Grutter, is here as well.



            14             THE COURT:  Great.  It's nice to see you all.



            15             MR. PAYTON:  John Payton, for the University and the



            16   individual defendants.  Craig Goldblatt is with me and Phil



            17   Kessler is with me.



            18             THE COURT:  Good morning.  How is everybody?



            19             MR. KOLBO:  Fine.



            20             MS. MASSIE:  Miranda Massie for the Intervening



            21   Defendants.



            22             THE COURT:  Does anyone else want to put in their



            23   appearance?



            24             MR. WASHINGTON:  George Washington.



            25             MS. MASSIE:  Excuse me, Judge.  With me is Shanta

















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                                                                     6



             1   Driver, George Washington, Jodi Masley, Winnie Kao.



             2             THE COURT:  Okay.  Thank you.



             3             MS. MASSIE:  Thank you.



             4             THE COURT:  Well, I guess it's the day that



             5   everybody including myself has been waiting for, and we've put



             6   a lot of work into it, everybody.  A couple of things that we



             7   should start off.  Number one is we'll do the motion in



             8   limine.



             9              I have one of the Intervenors -- the Plaintiff's



            10   motion as it relates to the Intervenors' witnesses, I just



            11   received it this morning so that one I'm not prepared, and I



            12   suspect the Intervenors are not prepared to argue this morning



            13   either since they, I suspect, received it also.  All the rest,



            14   I'm prepared to listen to very short argument, none of which



            15   is included on the clock, of course, and go from



            16  There.



            17              Let me just talk about a couple of things that I'm



            18   not sure we've talked about.  One is the media.  I'm not sure



            19   who's here and who's not here, but the record should reflect



            20   that I received a call from Jodi Cohen.  I don't know if she's



            21   here or not here, I don't know.  I'm not sure from which



            22   newspaper.  And I told her I don't talk about cases at all,



            23   that -- ever, that ever appear before me now or any other



            24   time, but that because of the importance of this case if the



            25   media needed something that --

















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                                                                     7



             1  An exhibit that they thought was important in terms of



             2  Studying it so they can understand the case, we would be more



             3   than happy to make a copy for them, or something of that



             4   nature if there's no objection by the attorneys.  It's going



             5   to be reported in most -- journalists don't spend a lot of



             6   time in court.  And I also indicated to her at that time and



             7   that's why I'm repeating it today for everybody, I'm sure the



             8   attorneys would not mind if there's something that needs



             9   clarification, clarifying with them because I have no



            10   intentions of doing it, and I can't do it. I don't think it



            11   would be fair to either side for me to be involved in that.



            12   So, I've just disclosed it on the record because she



            13  Sent me a fax, and in response to her fax, called her on the



            14   phone and essentially told her the same thing that I'm saying



            15   now.



            16           So whoever is here from the media, if there's



            17   something you need copied, either David or Steven, my law



            18   clerks, will provide it, or the court deputy will be more than



            19   happy to accommodate you.



            20            In terms of scheduling, everyone has received a



            21  Copy of the schedule.  In terms of breaks, I usually break



            22   around 11:00 o'clock because the truth of the matter is,



            23   although I don't think today I have anything, generally I,



            24   schedule some miscellaneous matters at 11:00 o'clock while



            25   you're on break.  That's when we'll be doing our

















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                                                                     8



             1  Miscellaneous matters just to keep certain things going



             2  The criminal docket mostly, pleas, sentencings, things of



             3  That nature.  So we'll be doing those essentially at 11:00



             4  And sometime, we'll be doing those sometime in the



             5  Afternoon, but always on a break so we don't have to worry



             6   about that.



             7            If the lawyers need a break or something of



             8  That nature, let me know.  I don't drink coffee as often --



             9  I never drink coffee, I don't drink anything usually in the



            10   mornings so I don't need a break as often as other people



            11  But if you need a break since there's no jury, just let me



            12   know.  Or if you need a break to confer with a witness, or



            13  To make some phone calls, to line up witnesses or to



            14  Conduct business at your office since you're all here and



            15  Most of you are here from other states.  Even Mr. Kessler,



            16  Your new office, I've been reading about it in the



            17  Newspapers --



            18             MR. KESSLER:  That is true.  Thank you for noticing



            19   that.



            20             THE COURT:  You've got good PR.  Whoever is doing



            21   it, any newspaper you pick, there's your new office.  I'm



            22  Sure it's going to be beautiful though.



            23            So if something comes up, let us know, and we'll go



            24   from there.



            25            So the first matter we have this morning is the

















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                                                                     9



             1   motions in limine.   The first motion that we have is the



             2   expert testimony of Dr. Bok.  I think that one has been



             3   resolved, if I'm not mistaken.



             4            Counsel?



             5             MR. PURDY:  May it please the Court, counsel,



             6  Ladies, and gentlemen, your Honor, very briefly, we -- the



             7   plaintiffs have filed a motion to limit or exclude the



             8   testimony -- the proposed testimony of three experts, and I



             9  Do believe we have resolved one of them.  I think the three



            10   experts that were listed were Derek Bok, Kent Syverud,



            11  Claude Steele.  If I understand the response I got from the



            12   defendants I think they're withdrawing Professor Bok unless



            13  They feel that if something arises and they need -- during the



            14   course of trial that they need to call him --



            15             THE COURT:  Is that correct?



            16             MR. KESSLER:  It's close.  What we have also said is



            17   that the Court had some questions related to --



            18             THE COURT:  I can deal with that --



            19             MR. KESSLER:  -- if we were less selective that



            20   might solve the problem in another way.  And President Bok is,



            21   of course, an internationally known expert on these matters.



            22   And he will be prepared to come here and offer testimony on



            23   that sort of subject --



            24             THE COURT:  I don't need it.  That's not really part



            25   of this case. I asked the question, there's no.

















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                                                                     10



             1  Question --



             2             MR. KESSLER:  That's fine.



             3             THE COURT:  I don't need it.  It's nothing --



             4  Good.  I would like to hear him.  I think -- I've read his



             5   resume and I think just even seeing him -- he's a gentleman



             6   that's accomplished so much.  But as I say, if that was the



             7   only reason you were calling him -- I had asked that question



             8   at the time, it was more rhetorical, more curious than



             9   anything else.



            10             MR. PURDY:  I appreciate that.  I think we've



            11   resolved that.



            12             THE COURT:  Right.  Then the next one we have is



            13   Kent Syverud.



            14             MR. PURDY:  Yes, sir.  Kent Syverud, he's the



            15  Dean at Vanderbilt Law School, your Honor.



            16            Plain and simply, if you look at his



            17  Reports, there all about educational benefits of diversity.



            18  And, of course, your Honor, as everyone had made clear no one



            19   is contesting that there are educational benefits of



            20   diversity.  It's simply not an issue in the case. The Court is



            21   going to decide whether an educational institution is



            22   interested in diversity, they have to have governmental



            23   interest as a matter of law.  There's no facts that need to be



            24   heard there.



            25             THE COURT:  That's what --

















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                                                                     11



             1             MR. PURDY:  It's his own impressions.  If you look



             2   at his report, that's all it is.



             3            What they suggest in the response, what the



             4   defendants suggest in their response is that they actually



             5   want to bring Dean Syverud in to testify about what is



             6  Meant by "a diverse student body."  And I guess, your



             7  Honor, the problem we have with that is I don't think that



             8   calls for expert testimony.  The University clearly



             9  Contends that they have a diverse student body.  They have the



            10   figures about  what their racial and ethnic mix are -- are



            11   going to before the Court. They contend that they have a



            12   critical mass.  They contend they get the benefits.  You don't



            13   need an expert to come in and say, well, you know, here's my



            14   impression of what's meant by diverse student body.  They have



            15   it.



            16            And the question before the Court, as the Court has



            17   laid out in its Order, is what is the extent to which the



            18   University uses race which they obviously acknowledge that



            19   they do, and whether or not the extent which they do



            20   constitutes a double standard.  I just don't see where Dean



            21   Syverud has anything to add to that.



            22            And I might note furthermore that they do have



            23   Professor Raudenbush who is going to come in and talk about



            24   various purported admissions policies which would create



            25   different levels of diversity.  And he has a report that he

















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                                                                     12



             1   will be testifying that basically as I understand, a



             2   supplemental report that we received from Dean Syverud last



             3   Thursday or Friday, is basically he's going to come in and say



             4   I agree with Professor Raduenbush, you use one policy in order



             5   to get the diversity that they have, and if you don't do that,



             6   you get something else.  I just don't think that adds



             7   anything, your Honor.



             8            Finally, Dr. Steele --



             9             THE COURT:  Let's talk about them one at a time.



            10             MR. PURDY:  Sure.



            11             THE COURT:  Mr. Kessler, are you going to argue



            12  It?



            13            Can everybody hear in the courtroom?  Speak up if you



            14   can't.  Is the microphone on?



            15             Mr. Kessler?



            16             MR. KESSLER:  Your Honor, Dean Syverud has very



            17   important and directly relevant testimony to offer here.



            18  He is a nationally acclaimed expert in the education of law



            19   students and legal education itself.  He was a professor at



            20   the University of Michigan Law School from --



            21             THE COURT:  I'm well aware of him.  I've read his



            22   resume and -- again, what can he offer here?  Tell me -- I



            23   would like to see him.  I've talked to him on the phone



            24  Many, many times.  I've used him as a mediator in cases.



            25  I've never met him, but I've talked to him probably --

















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                                                                     13



             1  Many, many times.



             2             MR. KESSLER:  The plaintiff herself in papers



             3  That were filed -- and I guess the Court just received and



             4  I just received last night recognizes the nexus between the



             5   questions -- the two questions in particular that the Court --



             6   the first two questions that the Court has set for trial, the



             7   extent to which race is taken into account, and whether



             8   there's a double standard, and the question of the policy and



             9   critical mass.



            10             Let me just read from the bottom of page 1 and 2 of



            11   their Opposition papers on Mr. Stillwagon that they filed last



            12   night.  Two of the key questions which will be litigated at



            13   trial --



            14             THE COURT:  Are you reading from what, one more



            15   time?



            16             MR. KESSLER:  This is the bottom of page 1 and the



            17   top of page 2 of Plaintiff's Memorandum of Law in Opposition



            18   to the Defendant's Motion in Limine.  This concerns the



            19   testimony of Mr. Stillwagon.



            20             THE COURT:  Page what?



            21             MR. KESSLER:  The bottom of page one --



            22             THE COURT:  Okay.



            23             MR. KESSLER:  Starting with two of the key



            24   questions, do you see that?



            25             THE COURT:  Yes.

















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                                                                     14



             1             MR. KESSLER:  Two of the key questions which will be



             2   litigated at trial are, one, the extent to which race is



             3   factor in the law school's admissions decisions. And, two,



             4   whether the law school's consideration of race in making



             5   admissions decisions constitutes a double standard in which



             6   minority and non-minority students are treated differently.



             7            The Faculty Admissions Policy adopted in 1992



             8  Sheds some light on these issue.  For example, the policy



             9  Makes explicitly clear that the law school is committed to



            10   admitted to "meaningful numbers" or "a critical mass" of



            11   African-Americans, Hispanics, Native Americans even if



            12  Their graded performance in college and on the LSAT is



            13   "relatively far" below that of other applicants, with a



            14   transcript cite.



            15             Dean Syverud will testify about the meaning of



            16   "critical mass."  He will testify to what he saw of



            17  Critical mass at the University of Michigan Law School over



            18  A ten-year period.  He will testify as to what he has come



            19  To understand that to mean as the dean and an ongoing



            20  Member of the faculty at the Vanderbilt Law School.  He



            21  Will testify as to what he has seen in the converse



            22  Situation where you have tokenism or no diversity at all.  As



            23   he has seen for ten years in summer classes that he has taught



            24   --



            25             THE COURT:  What's the relevance to the issues

















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                                                                     15



             1   before the Court?



             2             MR. KESSLER:  The extent to which the law school



             3   considers race and takes it into account is driven by its



             4   objective of bringing together a critical mass of qualified



             5   minority students.



             6            To understand and to have the Court have a deep



             7   appreciation for what critical mass means in that context is



             8   to understand the very parameters of the extent to which race



             9   is taken into account.  It is the literal parameters around



            10   which the answer to the Court's question one arises.



            11  And it's very important that you hear that testimony.  I would



            12   say that especially that in a case of this profound national



            13   importance and social importance that can have affect for



            14   generations beyond anyone even in this courtroom, to start to



            15   artificially limit testimony that bears directly on central



            16   questions would really be most inappropriate and completely at



            17   odds with Rule 702.



            18            And he is also going to testify -- I think Mr.



            19  Purdy made reference to this -- he will testify as well



            20  That when you look at Professor Raudenbush's meticulous



            21   statistical analyzes and he shows us what will happen if we



            22   maintain the kind of a policy that we have now in place and



            23   have had since 1992, or we abandon it in favor a race neutral



            24   policy.



            25            Professor Raudenbush tells us the kind of numbers

















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                                                                     16



             1  Of minority students who can be expected to be admitted to



             2  The law school.  And Dean Syverud will testify that those



             3  Kinds of very small numbers that Professor Raudenbush



             4  Projects don't work.  They amount to tokenism.  And rather than



             5   being helpful in producing the kind of important educational



             6   benefits that this law school is committed to producing, you



             7   will have a counter-productive result.  You need to hear that



             8   with all due respect.  And, frankly, the record needs to



             9   reflect it.



            10             THE COURT:  Any rebuttal?



            11             MR. PURDY:  Sure.  Your Honor, I mean, I accept



            12   everything Mr. Kessler says about what the testimony will



            13  Be.  It's interesting if you look at the first two reports



            14  Of Dean Syverud, one dated back in 1998, and one dated



            15  Again in the year 2000, the word "critical mass" never



            16  Appears one time.  He never talks about critical mass one



            17  Time.



            18            What they've done, is we've filed our motion.  We



            19   talked to the defendants last week, and we tried to get a



            20   consultation.  In fact, we were going to call and what



            21   objections we may have had.  And we told them after they said



            22   they were going to call Kent Syverud, we alerted them, we



            23   said, look, he's just a diversity expert.  And if you



            24  Read his report, that's clearly all he talks about.  He talks



            25   about the educational benefits he sees from a level

















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                                                                     17



             1  Of racial heterogeneity within the classroom and those sorts of



             2   things. We understand that.



             3            But the question is -- Judge, we have two



             4  Questions.  What is the extent to which this defendant takes



             5   race into account in its admissions system.  He offers nothing



             6   on that.  And, secondly, whether it's a double standard.  He



             7   offers nothing on that.



             8            His evidence may be interesting from a diversity



             9   standpoint, and someone can clearly -- has strong views about



            10   what a level of racial diversity may bring or what the lack of



            11   it may not bring to a classroom.  But that doesn't have



            12   anything to do with what we're here today to talk about.  And



            13   that's the point, your Honor, we -- the critical mass is --



            14   that's the subject that they want to get into, define the



            15   critical mass.



            16            And I might point out, critical mass appears in the



            17   Admissions Policy.  It's a clearly relevant and important



            18  Term that the Court is going to hear a lot about, what does



            19   "critical mass" mean.  And they've listed witness after



            20   witness who were involved in developing the policy where



            21  That phrase was used.  If they want to talk about it -- I mean,



            22   if we wanted to go out and have -- bring twenty experts in



            23   from around the country and say here's my definition of



            24   critical mass, I mean, how would that help the Court.  I mean,



            25   as the University has used the phrase

















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                                                                     18



             1  They've got witness after witness that can tell you what it



             2   means.  And they say they have it.



             3            So, your Honor, I just think it's redundant.  It



             4   doesn't really help the Court at all. And it's brand new.



             5  The phrase "critical mass" never appeared in one report until



             6   last Thursday.



             7             THE COURT:  In this matter -- I can't -- we'll go



             8   all day, if I let you go back and forth.



             9            In this matter, the Court will deny the motion.  I



            10   will allow the defense to call Dean Syverud, however, with



            11  The understanding that I'm not making a ruling as to



            12  Relevance of his testimony.  I've had a chance to read all of



            13   his reports, and it appears that all his reports talk about



            14   the diversity issue.  It talks about when he first became a



            15   professor and how he changed his mind, and all that.  I don't



            16   think that's relevant.  And I'll tell you right now and



            17   probably -- if there was an objection, would probably exclude



            18   it only because that's not the issue before the Court today.



            19   However, if the defense believes that there's some relevance



            20   in his testimony, critical mass or otherwise, then I think I



            21   should not exclude that.  Therefore, the Court will allow him



            22   to --



            23             MR. KESSLER:  Thank you, your Honor.



            24             MR. PURDY:  Your Honor, that leaves us with Dr.



            25   Steele.  Dr. Steele is a professor out at Standford.  And

















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                                                                     19



             1  He has developed an interesting theory that relates to what he



             2   believes is a reason why there may be some disparities between



             3   standardized test scores for certain minorities and others,



             4   therefore -- I guess what it amounts to is some reason why if



             5   a school wants to make an excuse to employ a double standard,



             6   if you will.  My understanding is it's the University is they



             7   don't have a double standard.  And Dr.  Steele is going to be



             8   talking -- it's just a theory called a "stereotype threat."



             9   He believes it may effect -- or artificially depress test



            10   scores of certain minorities.



            11            I did go through his deposition, and we attached



            12   transcripts to our motion, your Honor.  He has no knowledge.



            13   He will not connect up a single one of Michigan's applicants



            14   with the concept of "stereotype threat."  He's never done any



            15   analysis of whether any of the people who applied may have



            16   been effected by stereotype threat or whether any of the



            17   students -- any minority students or majority students for



            18   that matter, but he stated that stereotype threat can effect



            19   everybody.



            20            So I don't know what it has, your Honor.  It clearly



            21   has nothing to do with the two issues that this Court has laid



            22   down for trial which is simply the --



            23             THE COURT:  How about academic ability, one of the



            24   things the defense have indicated in their response is



            25   academic ability.  Relevant or not relevant?

















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                                                                     20



             1             MR. PURDY:  Academic ability is relevant.  I think



             2   everyone's academic ability is relevant, your Honor.



             3  And the University is certainly free to evaluate different



             4   people, different applicants' academic abilities differently



             5   depending upon what the entire file looks like.



             6  I assume that's true for every applicant, every candidate



             7   regardless of race.



             8            Dr. Steele focuses specifically on one aspect which



             9   is the standardized testing.  And he suggests that -- as he



            10   says -- in fact, they say in their response, that stereotype



            11   threat and other external pressures artificially depress



            12   minority student performance on standardized tests.



            13            Now, what that suggests to me, your Honor, if the



            14   University wants to take the position now that that is an



            15   excuse that the University may use by employing a different



            16   standard for certain minorities but looking at their test



            17   scores, that would be an entirely different case.  It's my



            18   understanding the University is not prepared to make that



            19   concession, that they, in fact, do use a double standard, and



            20   do it because of Dr. Steele's theory.



            21            I might also point out Dr. Steele's theory is the



            22   best that we can tell from the record was never even



            23   considered by the University when they adopted their



            24   admissions policy.  So it play no role.  I mean, it's an



            25   interesting theory, and Dr. Steele like a number of the

















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                                                                     21



             1   witnesses in this case, your Honor, is somebody that we would



             2   be fascinated to hear from.  But I don't think it has anything



             3   to do with the limited issue before the Court.  So we would



             4   ask that it not be allowed.



             5             THE COURT:  Mr. Kessler.



             6             MR. KESSLER:  Your Honor, they have put this ball in



             7   play with the double standard argument.  They're double



             8   standard argument boils down to this:  You, law school, have



             9   admitted minorities whose average grades, average grades and



            10   average LSAT scores are somewhat lower than the average grades



            11   and test scores for white students.  That is a double



            12   standard.



            13            Professor Steele is one of several witnesses who will



            14   offer a complete negation of that position and show how



            15   wrong-headed it is.



            16             THE COURT:  Except how does it relate to this



            17   factual situation and this particular case as oppose to just



            18   generally what his opinion may be?



            19             MR. KESSLER:  One thing he's going to do is



            20  Testify as to the significance and the significant



            21  Limitations on LSAT scores.  What they mean; what they



            22  Don't mean; what they help to do; what they don't help to



            23  Do. This argument of double standard is based on a very



            24  Slight difference in average LSAT scores.  That is one



            25  Of the two bases of their argument.   You'll hear in the

















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                                                                     22



             1   Opening and all the way through the trial that in every



             2   procedural respect all of these applications are treated in



             3   exactly the same way.  The double standard --



             4             THE COURT:  Did Dr. Steele study the University of



             5   Michigan Law School's situation?  Did he -- or is it just



             6   general?



             7             MR. KESSLER:  He did not study the University of



             8   Michigan Law School situation.  His opinion is that he is



             9  An expert on the effect, significance and limitations on



            10  The significance of standardized test scores including the



            11  LSAT score.  It's the LSAT score in general, not the LSAT



            12  Score at the University of Michigan that is one of the two



            13   prongs of the plaintiff's dual standard argument.  They say



            14   that the LSAT scores on average are somewhat lower for



            15   minority students than they are for majority students.



            16   Obviously we're entitled to put that in prospective and



            17  Show that sort difference doesn't mean anything, and doesn't



            18   constitute a double standard.  And that's quite



            19  Apart from Dr. Steele's research and experimentation on the



            20   stereotype threat which is a long way from just a theory.



            21   It's based on years and years of research.  And it shows that



            22   groups who are subject to stereotypes including but not



            23   limited to some of the minorities at issue here will perform



            24   in a less successful way on standardized tests particularly



            25  If they're driven.  About the importance of the

















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                                                                     23



             1  Test.



             2            So the more important the test is to them, the more



             3   likely it is ironically that they won't do as well on it.



             4   That is directly on the point on the dual standard.  And we



             5   certainly are entitled to make a record of that.



             6            And frankly, I think the Court would benefit from



             7   hearing it.



             8             THE COURT:  Rebuttal?



             9             MR. PURDY:  Your Honor, again, I'm not going to



            10   disagree with anything that Mr. Kessler says.  Dr. Steele



            11  Has developed a theory and frankly it's not after years and



            12   years of research.  It's something that came up if I'm not



            13   mistaken I think the record will reflect it was originally



            14   published in 1995, some three years after the admissions



            15   policy at issue were developed in this particular case.



            16  And I think Mr. Kessler is walking that line that I'm quite



            17   intrigued by which is, look, there's a reason why we can do



            18   what we do, why we can actually either deemphasize the test



            19   for certain people depending upon their race or ethnicity, or



            20   why we can use a double standard.  I mean, we're excused for



            21   doing that because Dr. Steele says these particular scores



            22   should be depressed.  I guess I just don't -- first, he makes



            23   clear he's never -- he doesn't even opine whether a single



            24  One of the applicants -- I asked him the question, it's in the



            25   record, whether a single one of the applicants

















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                                                                     24



             1  Of the University of Michigan, minority or otherwise, were



             2   effected by stereotype threat.  There's no analysis that he



             3   has.  He has no knowledge of the admissions policies.



             4            And, your Honor, it's like everything else, I mean we



             5   can talk about the about the various reasons for why there may



             6   be differences in certain groups of test scores.  I don't know



             7   what that has to do with the two issues that this Court has



             8   set down for trial.



             9             THE COURT:  Okay.  In this matter, again, the Court



            10   is not -- you didn't file a response that's why I have not



            11   allowed you to speak.



            12             MS. MASSIE:  I understand that, Judge Friedman.



            13   It's just that this -- we're going to be covering the



            14  Motion that plaintiff has filed on us tomorrow.  This



            15  Exchange goes to the heart of the Intervention phase as



            16  Well.



            17             THE COURT:  It may.  But, you know, we've got to



            18   follow the rules.  If you had filed a response or something



            19  I would have been more than delighted to have let you argue



            20   anything.  But each side -- anyhow, in this matter the Court



            21   will allow Professor Steele to testify, again, however



            22  With the understanding that I'm not ruling by any means that



            23   it's relevant and because part of the reason that I set



            24  Some time limits on it was to give each side as much



            25   flexibility as I could and to utilize their

















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                                                                     25



             1  Time in the manner in which they best felt would present their



             2   case and perhaps even make a record although I'm not as



             3   concerned about making a record, I'm more concerned about



             4   dealing with the issues that are before the Court that I have



             5   enumerated for the record if that's what your desire to do is



             6   fine also.



             7             I will allow Professor Steele.



             8             MR. PURDY:  Thank you.



             9             MR. KESSLER:  Thank you.



            10             THE COURT:  We have one other motion and that -- we



            11   have other motions.  One is the Intervenors which I've



            12   indicated we will handle in a bit.  And the other one is the



            13   defendant's motion as to the plaintiff, Ms. Grutter,



            14   testifying.  It's my understanding that the plaintiff's have



            15   decided at this point not to call Ms. Grutter.  Is that



            16   everybody's understanding?



            17             MR. PURDY:  That's correct, your Honor.



            18             THE COURT:  Okay.  Just so the record is clear.



            19  And the next one we have is the issue as to Alan



            20  Stillwagon.



            21             MR. PAYTON:  Your Honor, we filed these motions



            22   because we thought that neither Mr. Stillwagon nor Ms.



            23   Grutter had any relevant testimony, any relevant testimony



            24   with the first two questions the Court set for trial the



            25   extent to which race is used and whether or not there's a

















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                                                                     26



             1   double standard.



             2             THE COURT:  Just, again, at least I forget, and I



             3   don't want to forget, is that the plaintiff's motion in



             4   relation to the Intervenors' witnesses -- again, I hope



             5   everyone will address it at the appropriate time, is very



             6   similar to the issues raised as to Plaintiff Grutter.  I



             7   think.  I'm just thinking out loud.  I haven't had a chance to



             8   really study it, but I read it very, very quickly morning



             9   because it just came in this morning.



            10             Go on, I'm sorry.



            11             MR. PAYTON:  I actually haven't read that motion



            12   carefully either, but I think they are, in fact, different.



            13             THE COURT:  They may be.  I just don't -- the only



            14   reason I said it right now is because I was thinking of it,



            15   and I wanted to at least make sure that everybody at least --



            16   we're all in a position to at least address it.



            17             MR. PAYTON:  Sure.



            18             THE COURT:  It's not here today.  Okay, as to



            19   Stillwagon.



            20             MR. PAYTON:  Mr. Stillwagon.  This case is about the



            21   current admissions policies and practices of the law school.



            22   I don't think there's any question about that.  This phase of



            23   the case is about only injunctive and declaratory relief.



            24   It's what we do right now.



            25            Mr. Stillwagon was the Director Admissions from

















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                                                                     27



             1  1997, to 1990, August of 1990.  That's eleven to twenty- years



             2   ago.  He has had nothing to do with the law school since then,



             3   since August of 1990.  He's not had any contact with any



             4   person in the Admissions Office since that time.



             5            In April of 1992, the faculty, the whole faculty,



             6   adopted a new admissions policy, a new comprehensive written



             7   policy which you've seen and which is going to be obviously a



             8   major document in this trial.  It was written a faculty



             9   admissions committee that worked on it for eight months.



            10   Worked very hard to produce the document.



            11             A new director of admissions served on that



            12   committee, contributed to the discussions and the policy, and



            13   was charged with implementing that policy.  The parties have



            14   stipulated in the Joint Pretrial, they have stipulated that



            15   the director of admissions is charged, charged with



            16   implementing that 1992 policy.  The parties have stipulated



            17   that the 1992 policy has remained in effect, unchanged since



            18   it was adopted in 1992.  I don't think there's any dispute



            19   about how it's been operated.



            20            Plaintiff concedes in her opposition that Mr.



            21   Stillwagon has no knowledge of the system as it has



            22  Operated since 1992.  She argues instead, but plaintiff is not



            23   Stillwagon on that subject.  That's the only subject of this



            24   trial.  Our admissions policies; how they'll operated



            25  What we do.  That's the only subject of the trial.

















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             1            Given that we have a comprehensive written



             2  Admissions policy about which there is no real issue about



             3  How it's being operated, that's what the whole trial is



             4  About.



             5            Now, she makes as her final argument that her case is



             6   brief, Mr. Stillwagon's testimony won't be very long, but he's



             7   here.  All that's true.  But his testimony isn't relevant to



             8   anything that we're going to be talking about.  We have the



             9   policy which was adopted two years after he left.  It's being



            10   implemented by new admissions officers.  It's been in effect,



            11   unchanged.  Admissions counselors and officers are charged



            12   with implementing that 1992 policy.  That's all this trial



            13   ought to be about.



            14             THE COURT:  Thank you.



            15             MR. KOLBO:  Your Honor, Kirk Kolbo, for the



            16   plaintiff.



            17            I can be fairly brief.  There's a very simple and



            18   basic reason why Mr. Stillwagon's testimony is relevant.  The



            19   most basic level is to provide the Court some background in



            20   this case.



            21            The 1992 policy was a new written policy, but in the



            22   policy itself, it went on to say, and I'm quoting from the



            23   1992 policy.



            24            "Our object in this memorandum is as much to



            25              ratify what has been done, to reaffirm our goals

















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                                                                     29



             1             as it is to announce new policies."



             2             I think this Court is entitled to hear what about



             3   the old policy that's still in the new policy.  How did the



             4   old policy operated in such a way that one can understand in



             5   what respects the new policy is very similar to it.



             6            There's another reason, your Honor, where I think



             7   there's some relevance to hearing this.  There's a document, I



             8   think it's Trial Exhibit 61, that states the 1992 policy was



             9   basically to address a new articulation as to what had



            10   happened before.  If it's just a new articulation, your Honor,



            11   that's very useful, it seems to me to have the Court



            12   understand how the old policy which in may respects was



            13   similar was articulating.   One of the things the Court will



            14   discover through documents and as well through Mr. Stillwagon



            15   is the law school operated with what is called a Special



            16   Admissions Program.



            17            We think one of the things the evidence will show



            18  In this case is that the law school still operates in



            19  Effect and in substance a special admissions program with



            20   respect minority students.   It would be helpful to the



            21  Court, and that's what we're talking about there, at the most



            22   basic level, there's some helpfulness to understanding what



            23   the old system was like so it can be compared to the new



            24   system in particular with respect to the fact that many



            25  Areas the new system, as I say, ratifies policies of the

















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                                                                     30



             1  Old system.



             2            It's going to be short testimony, your Honor.  I



             3   think it will provide the Court some useful background.  We



             4   took a number of depositions in this case in which we



             5  Learned that virtually all of the current law schools



             6  Officials pled pretty much ignorance about how the system



             7   worked prior to 1992 during Mr. Stillwagon's tenure.  They



             8   simply plead sort of amnesia on that.  So we think it's



             9   helpful for the Court to understand what Mr. Stillwagon was



            10   doing, how he was operating under the mandate of the policies



            11   that were in effect at that time, and to compare them to the



            12   evolution of the policy that occurred in 1992.  We think it's



            13   very relevant in that point, your Honor.



            14             THE COURT:  Thank you.



            15             MR. PAYTON:  I find this almost amazing.  Mr.



            16  Kolbo admits up here that, in fact, none of the current



            17  People had any responsibility for operating the admissions



            18   program since 1992, and he's deposed them all.  He doesn't



            19   seem to know anything about how it was operated in the



            20  1980s.  That seems to me conclusive that what was happening in



            21   the 1980s is not relevant to how they were operating the



            22   system.



            23             Now, we can do a historical sort, you know, sort



            24  Of retrospective on of what's been going in the 1980s, and how



            25   things happened in the 1980s, but if the people who

















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                                                                     31



             1  Operated the policy since 1992 don't have any contact with that



             2   or even know what happened, what does it matter at all, at



             3   all.



             4             THE COURT:  Again, without ruling on its



             5  Relevance, the Court will allow Allan Stillwagon to



             6  Testify.  Again, relevance is not one of the reasons that



             7  I'm making that ruling.  I think that, again, it's important



             8   for each side to put on their case the way they feel it



             9  Should be put on without wasting time of either side and the



            10   Court.  Therefore, the Court will allow that.  As I



            11  Indicated before, the plaintiff's motion in limine as.



            12  To the Intervenors' witnesses I will -- we'll talk about it



            13  You know, at the end of the day, see how much time each



            14  Side needs in order to respond according since I don't



            15  Think it's going to come up for awhile, and we can go from



            16   there.



            17           Any other preliminary matters before we proceed?



            18  Okay -- yes, Mr. Payton?



            19             MR. PAYTON:  This is just housekeeping.  What do you



            20   plan on the way of lunch?  Is there a regular time?



            21             THE COURT:  Good question.  I usually like to



            22  Break for lunch -- what I'd like to do to be honest with



            23   everybody, if we have a witness, and -- I don't like to



            24  Break inbetween, you know -- I like to break at a good



            25  Point so we can do it.  Usually I take a lunch between

















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                                                                     32



             1  12:30, 1:00, 1:15, in that area.  But if we're in the



             2  Middle of a witness, and we can get that witness out by



             3  Working another fifteen, twenty minutes, you know, not have



             4  To bring that witness back --



             5             MR. PAYTON:  An hour?



             6             THE COURT:  An hour is fine.  Is that okay



             7  With --



             8             MR. KOLBO:  That's fine, your Honor.



             9             MS. MASSIE:  Fine with us.



            10             THE COURT:  Okay.  If turns out you need a little



            11   bit more time because unfortunately Downtown Detroit doesn't



            12   have a whole lot of eating spots, let us know, but let's plan



            13   on an hour for lunch.



            14            Okay, we're going to go on the clock.  As I indicated



            15   one other time, I'm certainly welcome to hear some Opening



            16   Statements.  I know a lot about the case.  I've read a lot of



            17   the information in terms of the Motion for Summary Judgment



            18   and so forth.  So you may proceed.



            19            Just so you know about the time -- and as I



            20   indicated, there's going to be a sheet up here every day.



            21   David and Steven will be keeping time.  We've got three



            22  Time watches.  The time will be any time that's used --



            23  Other than objections unless the objection -- if it's too



            24  Hard to stop and go on with the objection, with the



            25   understanding that I wanted to do it just to keep things in.

















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             1  Perspective.  I mean, if someone needs an extra hour or



             2  Two, or something, I'm not going to tell you, you can't do



             3  It.  But it's just so we have some way of keeping it together.



             4   But on the same token if someone needs another twenty hours,



             5   you're probably not going to get it, but I'm not going



             6  To say, you know, for a couple of hours that you can't -- if



             7   you have some things that you have to -- that are



             8  Important to you, that you have to put in, I certainly



             9   understand.



            10            The record should reflect that we talked about -- the



            11   time I gave you was really based upon the estimates you gave



            12   me in terms of how long you thought the case should take and



            13   so forth.



            14            With that said -- oh, the other thing, there's



            15  Going to be some sheets up here.  We're just going to do a



            16   cumulative total every day.  You are more than welcome



            17  To take a look at the sheets.  We're just going to keep them



            18   right here.  There's no secret.  My law clerks are going to



            19   keep the time.  We have a backup timing, Jeremy Segal, he's



            20  An undergrad student at the University of Michigan. They have



            21  A program up there where we take an undergrad student every



            22   year through one of the professors.  So he spends a



            23  Semester with us.  And he's going to be kind of a backup



            24   timing.  And we also have student from Wayne University who's



            25   an undergrad student that wanted to -- just kind of

















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                                                                     34



             1  Back us up in case we forget to turn the clock.  The student



             2   from Wayne isn't here today, but he'll be here tomorrow.  He



             3   will be probably every other day with Jeremy or something of



             4   that nature.  Just so everybody who he is.



             5            Okay.  You may proceed.



             6                        OPENING STATEMENT



             7             MR. KOLBO:  Thank you, your Honor.



             8             Again, Kirk Kolbo, on behalf of the plaintiff.



             9             I know, your Honor, that you are very familiar



            10  With the facts of this case, and I'm going to be very



            11  Brief.



            12            We have a simple case.  I simply want to give the



            13   Court sort of an idea of what we're going to be doing and what



            14   our time frame is.  We expect to put our case in, in one or



            15   two days, perhaps three days at the most.  And I just want to



            16   tell the Court a little bit about what that's going to look



            17   like.



            18            In a technical sense, your Honor, I think our



            19  Burden actually has already been met in this case in so far



            20  As the Court is not going to be trying the question of



            21  Whether or not race was used as a factor in the admissions



            22   process.  I think technically probably once that point had



            23   been conceded, the burden shifted to the defendants to



            24   establish a compelling governmental interest which, of course,



            25   the Court has taken under advisement as a matter of

















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                                                                     35



             1  Law in terms of whether diversity is that interest.  And,



             2   secondly, their burden is to demonstrate that if they have



             3   established a compelling governmental interest that the means



             4   that they use, the manner, the extent to which they take race



             5   into account in the admissions process is a narrowly tailored



             6   one.  And I understand that basically is the fact, that legal



             7   question, is what's going to be tried here in the next several



             8   weeks.



             9            Although we're not technically perhaps required to



            10   put on evidence at this point in view of that burden and the



            11   burden shifting, we do think it's appropriate as the



            12   plaintiffs in this case to let the Court hear and to have the



            13   plaintiffs go forward with some of the evidence on the manner



            14   and the extent to which race is used in the process.



            15            We're going to do it basically, your Honor,



            16  Through three witnesses, and then a variety of documentary



            17   evidence as well as some deposition designations in the



            18  Case, your Honor.  We're going to start out as the Court



            19  Has already heard the motions in limine with some background



            20   testimony.  And I except that background testimony to be



            21   provided by Mr. Allan Stillwagon who was involved in the



            22   Admissions Office, was the principal Admissions Officer,



            23   responsible for carrying out the admissions policy of the



            24  Law school from about 1979, until about -- I think the



            25  Last year, the last academic year for.

















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                                                                     36



             1



             2   which he made admissions decisions was 1990.



             3            I expect that Mr. Stillwagon will provide testimony



             4  In some detail but in particular with respect to how



             5  The law school operated what it called very candidly at the



             6   time and accurately a special admissions program that operated



             7   for minority students, for certain designated minority groups.



             8   And that program I believe he will explain again in much



             9   detail than I'm going to elaborate on here, provided that



            10   through a series of faculty resolutions and mandates



            11   throughout the 1970s, I think principally the faculty mandated



            12   that the admissions office was responsible for making



            13   admission decisions in a manner that would lead probably to



            14   the enrollment of approximately ten to twelve percent



            15   unrepresented minority students from the designated minority



            16   groups.  And that the special admissions program was to be



            17   used if that enrollment level couldn't be reached through the



            18   regular admissions process.   And effectively, I think what



            19   Mr. Stillwagon's testimony will demonstrate and we think a



            20   number of the documents that we will be offering as well will



            21   demonstrate that the special admissions program was, in



            22   effect, basically a manner of considering academic credentials



            23   of minority students, of these designated minority students



            24   under a very different and lower standard that was generally



            25   applicable in the regular admissions process.  That will be

















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                                                                     37



             1   kind of a background, your Honor, for what I believe is pretty



             2   much undisputed about the way the admissions process worked at



             3   least up until the time that Mr. Stillwagon departed again,



             4   that last academic year was for 1990.



             5            Then, your Honor, our second witness is



             6  Going to be the current director of the admissions office



             7  For the law school.  Her name is Ms. Erica Munzel.  I believe



             8   her testimony will be -- and I'm not going to go into any



             9  Detail here, your Honor, because we'll get this in the



            10  Course of the trial -- but Ms. Munzel I believe has been



            11  In the admissions office since approximately January or so of



            12   1993.  She was associate director, basically number two in



            13   charge next to Dennis Shields until approximately I believe



            14  It was early of 1998 sometime.  And since 1998, she has been



            15   either the acting director of admissions or the director of



            16   admissions for the law school.  So that she is the one.



            17  That is knowledgeable about how admissions have worked in the



            18   law school for the last couple of years before that, at least



            19   back in 1993.  And she is the individual that is knowledgeable



            20   about how the admissions policies work to date in light of the



            21   new policy.  So we're going to have some testimony from her on



            22   that subject.



            23



            24           Finally, your Honor, our last witness will be our



            25   expert witness in this case, Dr. Kinley Larntz.  He is

















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                                                                     38



             1   professor emeritus at the University of Minnesota where he



             2  Has taught, I believe approximately thirty years.  He is



             3  The former chairman of the University of Minnesota's



             4  Department of Applied Statistics.  And I'm not go into any



             5   detail here, your Honor, with respect to Dr. Larntz' expected



             6   testimony.



             7            There were, as the Court is familiar, we filed about



             8   five -- four or five of his reports as part of the Summary



             9   Judgment record.  Much of his testimony, in fact, really all



            10   of his testimony, the substance of it, will be based on large



            11   part upon those expert reports.  We put together a



            12   presentation for the Court, sort of a summary presentation



            13   because the report themselves are very extensive and it would



            14   take days to have a witness take us through it.  So we put



            15   together an abbreviated sort of summary presentation that Mr.



            16   Larntz, Dr. Larntz will present to the Court as part of his



            17   testimony.



            18            And basically what Dr. Larntz did, your Honor, as a



            19   statistician, he worked with -- he was given access to the law



            20   school's database.  They maintain a data base each year that



            21   contains a variety of information and characteristics on



            22   applicants, residencies, grades, test scores, gender, a



            23   variety of things.  And he was able to do a variety of



            24   comparative physical analyzes with that database basically for



            25   a six-year period, your Honor.  From 1995, which is the first

















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             1   year to which this class has been certified right up until the



             2   most current class, the first-year class that was enrolled in



             3   the year 2000.



             4            And what we expect that Dr. Larntz' testimony will



             5   show is that race is not just used as a -- I guess a plus



             6   factor that might sometimes tip the scale in close cases, but,



             7   in fact, it was more in the nature of a super factor that has



             8   enormous consequences, particularly at middle ranges or a



             9   combination of LSAT scores and undergraduate grade point



            10   averages.



            11            I use a lot of sort of comp English when I talk about



            12   size, your Honor, of the preference we believe is pretty



            13   clearly given at the law school for race.  But what we asked



            14   Dr. Larntz to do is try to put that in a little more



            15   scientific and quantitative form, and that's what we expect



            16   his testimony will do.



            17            And, finally, your Honor, we also intend to put



            18  Our case in through a number of exhibits, deposition



            19   designations and so forth.  At the end, we expect your



            20  Honor, to be able to demonstrate not simply by the



            21   preponderance of the evidence that race is used in an



            22  Improper manner here, but we think we can establish that



            23   decisively through the evidence and the witnesses that you



            24   will hear in the next two weeks.



            25             THE COURT:  Thank you.

















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             1             MR. KOLBO:  Thank you, your Honor.



             2             THE COURT:  I appreciate it.



             3                      OPENING STATEMENT



             4             MR. PAYTON:  Good morning, your Honor.



             5            Mr. Kolbo is correct that it is probably realistic to



             6   look at this case as having the burden that primarily falls on



             7   us since we have an affirmative defense.  And I think I'm



             8   going to try to be brief, but I'll be a little bit longer than



             9   Mr. Kolbo, but not that long.



            10            This case -- we're going to use a few of the



            11  Exhibits just in the course of this matter here.  This



            12  Case, unlike some others, about the use of race as a



            13  Factor, along with many other factors in the admissions



            14   process.  Is greatly helped by the fact that we have a



            15   comprehensive written admissions policy that governs all



            16   admissions.



            17            The three witnesses that Mr. Kolbo indicated he's



            18   going to call, Mr. Stillwagon, as you will see as I think



            19   everyone has conceded, the plaintiffs as well, doesn't know



            20   anything about that policy.  It was developed after he



            21  Left.



            22            Mr. Larntz, the plaintiff's statistical expert also



            23   does not know that policy.  He has constructed a model that



            24   generates the number that Mr. Kolbo was referring to



            25  And his model does not reflect our process.  And I don't

















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             1  Even think he claims it reflects how we make our admissions



             2   decisions.



             3            Now, Ms. Munzel, another of his witnesses, is our



             4   current Director of Admissions, and she certainly knows how



             5   the policy works.  And she will testify that race is merely



             6   one of many factors that are taken into account on a



             7   file-by-file basis to achieve one aspect of our comprehensive



             8   admissions policy that values diversity.  She will make it



             9   point blank that there is no dual system.



            10            Mr. Kolbo left the impression that the odds of a



            11   minority student getting, versus a majority student getting



            12   into the University of Michigan were much higher.  He said



            13   that race is -- and I use every day language a super factor of



            14   enormous consequences.



            15            Let me give the Court the numbers that I believe



            16   matter.  And that will be presented to the Court as



            17   undisputed, that is, the data is the data.



            18            For 1997, that's the year that Ms. Grutter



            19  Applied, three hundred African-American students applied to



            20  The University of Michigan Law School, three hundred.  Of



            21  Those three hundred, two thirds were rejected.  And only



            22  One hundred three were offered admissions.  That's 34.3



            23  Percent were offered admission.  Twenty-seven came.



            24   Twenty-seven out of a class of three hundred and sixty-two,



            25   7.5 percent.  Same year, 1997, one thousand nine hundred

















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             1   eighty-two white students applied to the University of



             2   Michigan Law School.  Of those one thousand nine hundred and



             3   eighty-two, seven hundred and eighty-three were offered



             4   admission, 39.4 percent.  A higher percentage of offers than



             5   for the African Americans.



             6            Put it the other way, the law school rejected a



             7   larger percentage of the African American applications, than



             8   the percentage of the White applications.  Two hundred and



             9   thirty-three of the white offerees came.  Out of the class,



            10   same class, three hundred and sixty-two, that's 64.4 percent.



            11   About nine times the number of white students came than



            12   African Americans.



            13            I would say that by any measure, any measure at



            14  All, the numbers of minority students that we have the



            15   University of Michigan Law School, have been modest,



            16   twenty-seven African Americans in Ms. Grutter's year of



            17  1997.



            18            Professor Steven Raudenbush, our expert on



            19   statistical analysis, has reviewed all of this data.  And



            20  His analysis shows that even if there was no minority



            21  Students at all, that is, if we simply eliminated the



            22   under-represented minority students from the applicant



            23  Pool, just took them out, that the resulting increase in the



            24   rate of admittance for the black students would be marginal.



            25   It would be an increase of six percent.  It would go from

















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             1   thirty-eight to forty-four percent in 1997, Ms. Grutter's



             2   year.  That's if all the minority students were simply



             3   excluded.



             4  And what's driving this is the fact that there aren't but so



             5   many under-represented minority applications or students in



             6   the first place.  And, therefore, their presence or not can



             7   only have a marginal impact on the overwhelming remaining



             8   applicants and students.



             9            People show that Mr. Larntz' analysis of this entire



            10   issue is, in fact, fundamentally flawed.



            11            This trial is limited to the three issues that



            12  The court has set forth.  But it's really important that



            13  These issues be viewed and appreciated in the larger



            14  Context in which they arise.  To fully understand -- to



            15  Take the Court's first question, the extent to which race



            16  Is a factor in the admissions process, it's crucial to



            17  Know why we use race at all.  In fact, the plaintiff's one



            18   witness, Gail Heriot, will say that. We'll introduce



            19  Portions of her deposition testimony in which she stated



            20  That an admissions policy like the Harvard policy that's



            21   attached to the Bakke opinion, or like the policy right



            22  Here before the Court, the extent to which race is considered



            23   in the admissions process is in large part a function of.



            24  What you mean by a critical mass.  That's why Mr. Syverud's



            25   testimony is going to be important.  That's

















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             1  Why a lot of witnesses are going to talk about what critical



             2   mass is.



             3            The educational benefits only come about if there is



             4   critical mass.  And we take race into account only to that



             5   extent.



             6            Now, there's no mystery or subterfuge here.  We set



             7   forth a comprehensive written admissions policy in 1992, in a



             8   document drafted by a faculty committee that was established



             9   by the dean and adopted by the full faculty of the law school



            10   as the policy of the law school.



            11            As I said in talking about Mr. Stillwagon, the



            12   stipulated facts are that the director admissions is charged



            13   with implementing that policy.  The policy I think is Exhibit



            14   4.  You've seen it?



            15             THE COURT:  I've seen it.  Is it Trial Exhibit 4.



            16             MR. PAYTON:  I believe we tried to keep the same



            17   numbers.



            18             THE COURT:  I've seen it many, many times.



            19             MR. PAYTON:  This is it.  And we're going to hear



            20   from a number of witnesses about this policy.  We're going



            21  To hear from Lee Bollinger, the dean, that in the fall of



            22  1991, appointed the Faculty Admissions Committee and



            23  Charged them with looking into all of this.  And the



            24  Committee drafted the policy.  And Dean Bollinger presided



            25  Over its adoption by the full faculty in April of 1992.  And

















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             1   Mr. Bollinger is currently president of the University of



             2   Michigan.



             3            We'll hear from Jeff Lehman who was a faculty member



             4   of the Faculty Admissions Committee that drafted the policy in



             5   1991-1992, and he's the current dean of the law school. We'll



             6   hear from Dennis Shields, who is one of the individual



             7   defendants in this case who was then newly recruited to be the



             8   Director of Admissions in the summer of 1991, and whose



             9   initial emergent into Michigan law school was serviced on this



            10   committee with the faculty charged with coming up with a new



            11   policy.  He contributed to the policy; functioned with the



            12   committee; met the faculty; and helped design the program that



            13   he was then charged with implementing.  We'll hear from



            14   Richard Lempert who was the professor who chaired that



            15   committee in 1991.



            16            The policy is a comprehensive policy about all



            17   admissions.  It makes it clear that the law school desires a



            18   class of excellent students that have varying backgrounds and



            19   experiences; recognizes that students learn a great deal from



            20   each other.



            21            So the question is:  How do you select the students



            22   to achieve those things?  The policy states that the most



            23   general measure predicting academic success is a composite --



            24   and this is on page 3 of the policy -- is a composite - I'm



            25   giving just a short little quote here,

















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             1            "An applicant's LSAT score and undergraduate



             2             gradepoint average."



             3            It notes that these measures are far from perfect,



             4   certainly not complete.  And, in fact, it notes at the bottom



             5   of page 3, that,



             6            "At Michigan the index for three of the four most



             7             recently admitted classes, the grades and test



             8             scores explain on average 27% of the variance in



             9              the first-year graded performance."



            10            That means that nearly three-fourths of the



            11   difference in those grades, cannot be explained by the



            12  Grades or the test scores. But, you know, the general



            13  Matter, higher is better.  But the policy makes it quite clear



            14   and explicit that -- and this is on the next page, page 4,



            15   quote,



            16              "Even the highest possible score ought not



            17               guarantee admission."



            18            And it goes on, the next page, quote,



            19            "A low score ought not automatically deny a



            20             candidate admission."



            21              We don't admit LSAT scores.  And we don't admit



            22   GPA's.  We admit whole students, whole persons.  And there is



            23   a whole lot of other information and practices that are



            24   important in making a decision and judgment upon any



            25   applicant:  Recommendation, essays, curriculum, undergraduate

















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             1   institutions, trend in grades, experience, et cetera.  As the



             2   policy says, considerable discretion is exercised in the



             3   admissions process, and it ought to be.



             4            Here's the point: Once the director of admissions



             5   concludes that an applicant would succeed academically at



             6  The law school and is, therefore, qualified, every such



             7   applicant has a chance of being admitted.  At that point



             8  It is up to the applicant to make the case that this



             9  Discretion that the policy sanctioned should be exercised in



            10   his or her favor.



            11             This evaluation is the essential point of the



            12   file-by-file review that the Admissions Office follows



            13   regularly and without exception.



            14            Now, everything I've just said about the admissions



            15   process and the admission policy applies to all applicants,



            16   minority, non-minority, everybody.  I have described the



            17   general policy.



            18            The policy often notes that there are two



            19  Principal reasons why applicants may qualify for



            20  Admission despite having scored not at the very top of the



            21   range.  First, there are applicants as the policy said for



            22   whom we have good reason to be skeptical of their scores.



            23  The policy gives an example, Student X -- the policy refers.



            24  To the student as Student X.  That's a student that had good



            25   grades but not nearly as good LSAT.  And on closer review

















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             1  Of the record, it turned out that that same student had



             2  Very, very good grades in college, but the same not so good



             3   LSAT scores, had out performed the test.  And that's one of



             4   the reasons you allow exceptions.  You can take that into



             5   account.



             6           This first category, again, applies to all



             7  Students.  And I will note that the example of Student X



             8  Is.  In fact, a real student who was just summed up in there



             9   and made anonymous, a real student, and it was a white



            10   student.  But it could have been any student who benefited



            11   from that.



            12            The second reason why an applicant may qualify for



            13   admission if the score is not at the very top of the range is



            14   that the policy says that -- it's nine of ten of the policy



            15   is,



            16            "This may help achieve that diversity that has.



            17            The potential to enrich everyone's education and.



            18            thus make a law school class stronger than the sum.



            19            of its parts.  In particular we seek to admit.



            20            students.  With distinctive perspectives and



            21            experiences."



            22            Now, the policy makes clear and the witnesses will



            23   explain that this is diversity in the broadest sense of the



            24   word, students with distinctive experiences and perspectives



            25   as well as students that make special contributions to our

















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             1   profession and our society.



             2            Again, the policy gives examples.  A student



             3   originally from Bangladesh who had absolutely outstanding



             4   recommendations, and very impressive experiences, but only



             5   moderate achievement.  A single mother who had very impressive



             6   personal experiences, but who had very good academic



             7   achievement but modest scores.



             8            The policy also lists other possible achievements



             9   that could be noted, taken into account by future admissions



            10   committees, future directors of admissions.  Ph.D. in physics.



            11   It mentioned an Olympic Gold Medal, a Vietnamese boat person.



            12   It wasn't suppose to be a rigid fixed category.  Simply life



            13   experiences, perspectives that could bring some real



            14   contribution to the diversity and the livelihood and vitality



            15   of the law school class.



            16            That's the question that gets asked all the time,



            17   will they make the law school a more lively and vibrant place



            18   in which to study law for all applicants including the -- the



            19   policy makes it absolutely clear that they must demonstrate



            20   sufficient academic strength to be able to thrive at the law



            21   school.



            22            And then on page 12, the policy references the law



            23   school, "



            24            "Commitment to racial and ethnic diversity



            25             with special reference to the inclusion of students

















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             1             from groups that have historically been



             2             discriminated against including African-



             3             Americans, Hispanics, and Native Americans, who



             4             without this commitment might not be represented



             5             in our student body in meaningful numbers.  These



             6             students are particularly likely to have



             7             experiences and perspectives of special



             8             importance to our mission."



             9            This commitment, the witnesses will explain is part



            10   and parcel of the law school's boarder interest in creating a



            11   lively and diverse student body "by enrolling" - -this is



            12   where it references critical mass,



            13            "By enrolling a critical mass of minority



            14            students we have ensured their ability to make



            15            unique contributions to the character of the law



            16            school."



            17            Racial and ethnic diversity is a part of the value



            18   the law school places on general diversity.



            19            The policy was drafted to make these points clear and



            20   very unambiguous.  I should note and I think the Court noted



            21   at the beginning that the Court has under submission the



            22   evidence that we presented in connection with our motion for



            23   summary judgment regarding the significance of the educational



            24   benefits that come from having a racially diverse student



            25   body.  And Mr. Purdy this morning said that no one has taken

















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             1   issue with the fact that there are educational benefits that



             2   come from having a racially and ethnically diverse student



             3   body.  That it benefits the education of all students,



             4   minority, non-minority.



             5            And as an educational matter this is especially



             6   important because of the fact that -- and unfortunately



             7  We continue to be plagued by a segregated society.  And I



             8  Would also add it has special significance for the legal



             9   profession.



            10             That's the admissions policy, your Honor.  You'll



            11  Hear the testimony from the drafters, the two deans under



            12  Which it has operated and the two director of admissions that



            13   have operated it.  So given that context what is the extent



            14  To which race is a factor in the law school's admissions



            15   decision?  The answer can't be quantified.  It's one race.



            16   It's one of many factors that are considered.  It's simply



            17  A part of the effort to have a diverse student body.  And



            18  It's taken into account to achieve that necessary critical



            19   mass.



            20            I don't think there's going to be an argument that



            21   you have to have a critical mass.  The extent to which it is a



            22   factor has to do with the minority applicants.  Each file,



            23   each file is individually read.  The extent to which race is



            24   taken into account will effect -- may effect a decision, but



            25   it will effect in ways that vary from file-to-file, from

















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             1   applicant-to-applicant because you read each file,



             2   cover-to-cover.  Race is not given, however, so much weight



             3   that it prevents each applicant regardless of race from



             4   competing with all other applicants to gain admissions to a



             5   law school.



             6            To the contrary.  As to the admissions data that I



             7   referred to earlier, the 1997 data shows the law school



             8   rejects many minority applicants, two thirds of the



             9   African-Americans that year.  And this is not an isolated



            10   year.  That's a pattern across all the years.



            11            Again, in 1997, it rejected a larger percentage of



            12  The African-American applicants and the White applicants.



            13  No one, no one could fairly examine that data and conclude that



            14   race was an excessively weighed factor much less a trump card.



            15   It's certainly not a super factor. It certainly does not have



            16   the form of significance.  But the question becomes:  Isn't



            17   there some way to quantify this use of race?



            18            As Mr. Kolbo has indicated his expert, Kinley Larntz,



            19   has purported to do.   Actually there isn't.  Mr.  Larntz'



            20   analysis is flawed.  And our expert, Professor Raudenbush,



            21   will show that.  Moreover, not only his is method flawed, the



            22   way he has implemented his own method is flawed.  And thus he



            23   has misleading, and I'll say fantastic, what he's going to



            24   call odd ratios.



            25            There is another point:  The plaintiff's effort to

















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             1   reduce our admissions process, the entire process to two



             2   numbers, LSAT and grades, plus race is fundamentally at odds



             3   with how we make any admissions decision. The plaintiff has



             4   completely ignored how the decisions are actually made and has



             5   substituted an artificially three-factor analysis: grades,



             6   LSAT, race.  And as long as misleading that this is, I just



             7   want to take a look at it on its own terms which I think are



             8   incorrect, but on its own terms.



             9            Now, we produced in discovery the database that Mr.



            10   Kolbo talked about that has a lot of data, but it's limited



            11   data, but it has a lot of data that describes students, where



            12   they're from, where they went to college, what they LSAT score



            13   was, what their grades were, et cetera.  And that's the data



            14   that Mr. Larntz, plaintiff's expert used to come up with what



            15   he's going to present to the Court.



            16            We produced a chart that graphically illustrates that



            17   same data.  A number of witnesses will testify about the



            18   charts we produced.  I just want to show them to you.  It



            19   began in 1997.  Here's what I want to show.  It is a chart



            20   that shows the admitted majority students.



            21             THE COURT:  What exhibit number is it, just for the



            22   record, do you know?



            23             MR. PAYTON:  It's coming.



            24             THE COURT:  That's okay.



            25             MR. PAYTON:  I'm going to walk up and talk loud

















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             1   enough for everybody.  Can you see that?  Can you look at your



             2   Exhibit 180?



             3             THE COURT:  Sure.  It's here.  I'd like to have it.



             4   It will take me a minute to get it in the right order.



             5             MR. PAYTON:  It's Volume 13, and it's Exhibit 180.



             6             THE COURT:  You may proceed.



             7             MR. PAYTON:  And what we have is we have a graph, a



             8   chart.  On the left side it shows the range of LSAT scores,



             9   twenty, all the way up to one eighty.  And on the bottom it



            10   shows the ranges of GPA's.  It's just a graph.  And this plots



            11   every single one of the majority admitted students for 1997.



            12   And they're bunched in the upper right-hand corner just as Mr.



            13   Kolbo indicated the policy says we try to get people who are



            14   bunched up there, okay?  So that's every admitted majority



            15   student, okay.



            16            Now, I'd to put up the same chart for the admitted



            17   under-represented minority students.



            18             THE COURT:  What number is that?



            19             MR. PAYTON:  One eighty-one.



            20             THE COURT:  Okay.



            21             MR. PAYTON:  And this has the exact same scale.  And



            22   it shows every single one of the admitted under-represented



            23   minority students.  Again, bunched in the upper right-hand



            24   corner.  And these are transparencies so I'm going to overlay



            25   them, and then synchronize the scale so they're on the exact

















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             1   same scale and you can see that now what we see is a glob of



             2   all of the students.  This is now all of the students.  And



             3   you can see the overlay.  If you could pull it apart so that



             4   the judge could see just what the overlay looks like.  Put it



             5   back up there.  You will see that there is considerable



             6   overlap between the admitted majority students and the



             7   admitted under-represented minority students.



             8            Now, we can do the same thing for the students who,



             9   in fact, were rejected in 1997.  So if we put up the majority



            10   students who didn't get in.  And, this is very single one on



            11   the exact same chart.  And we just put on top of that the



            12   overlay of the rejected minority students.  I'm going to put



            13   it right on top.  And, again, you see there's considerable



            14   overlap in the rejected students.



            15            Now, what we see from this is really quite dramatic,



            16   that what you would have expected to see given the way the



            17   plaintiffs have presented this evidence is two completely



            18   different universes of applications, okay, and that the



            19   enormous gap, the terrible gap that he referred to in the



            20   summary judgment was a super factor, the enormous consequences



            21   that he referred to this morning, you would expect to see



            22   completely different universes of the plots, but you don't.



            23   In fact, you see that they look like one of the same thing,



            24   just two little parts.  And you can see that clearly there is



            25   some difference, but it's clearly a difference that is much,

















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             1   much smaller than the rhetoric has indicated.



             2            That's the actual data.  We just plotted it, okay?



             3   We didn't do anything else with it but plot it up there so



             4   that it can be seen because the visual is really quite



             5   dramatic.  It also shows and I think this is also important



             6   that every one of these students looks really strong on just



             7   these two measures.  They're all up there in the upper



             8   right-hand corner.



             9            Now, we don't deny that we use race.  We don't deny



            10   that we take race into account.  We don't deny that it's a



            11   factor that can make a difference.  If it wouldn't make a



            12   difference, it wouldn't be a real factor.  But as these charts



            13   reveal, we use race quite judicially.



            14            Now, I now want to look at how the decisions are



            15   actually made because this is about an artificial world.  That



            16   doesn't reflect how we make decisions.  When I said we don't



            17   admit LSAT scores, we don't admit LSAT scores.  We don't admit



            18   GPA's.  We look at whole people.  And this will become really



            19   clear in the testimony of Ms. Munzel, Mr.  Shields, the two



            20   directors of admissions.  There's simply no mechanical process



            21   of selecting students for admissions.  Every file is read.



            22   Every relevant factor is considered, and individual judgments



            23   are made.



            24            You're going to hear testimony about how the



            25   admissions process operates.  I'm going to describe it

















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                                                                     57



             1   briefly.



             2            An application comes in.  The application is put into



             3   a file folder.  Some information, most of the information



             4   that's in this database, name, address, test scores, grades,



             5   whether the applicant's a Michigan resident, race, gender,



             6   undergraduate institution, that kind of information is loaded



             7   into a database.   When letters of recommendation and the



             8   transcripts are received the file is ready, is complete, it's



             9   ready to be reviewed.



            10            Then usually the director of admissions, but every



            11   now and then someone, but usually the director admissions then



            12   reads the file folder.  They start by looking at the objective



            13   factors, some of the factors, the grades and the test scores.



            14   The first impression of an applicant.  And we're going to see



            15   an actual -- and we're going to redact the name of the actual



            16   student, but we're going to go through an actual file folder



            17   so you can see exactly how this works and appreciate how the



            18   process works, that there's a report in there that's prepared



            19   by a centralized organization, Law Services, and it assembles



            20   various information.  And the report will give you a sense not



            21   only of what the grades and the test scores are, but will put



            22   it in the context of every other student from that student's



            23   college who has also applied to law school.  So you can see



            24   just how that student did in comparison with all the other



            25   students that are coming from a college and are trying to get

















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                                                                     58



             1   into law school.



             2            Let me just also mention something to just sort of



             3   set it aside because there's been something that's misleading



             4   here.  There has been some mention, at times a lot mention of



             5   what's called the law school index score.  And that is a score



             6   that reflects the relationship between the LSAT, undergraduate



             7   grades, and first year law school grades.  Now, there is such



             8   an index formula and there is an index score.  However, we



             9   don't use it to make decisions at all about admitting or not



            10   admitting a student.  We don't use it at all for that purpose.



            11   It's not even in any student's file.  It's not there.  When we



            12   go through a file you'll see there's no place where there is



            13   an index score.



            14            The index score is instead used simply to figure out



            15   the order in which you want to read files.  It's just a way of



            16   sorting files you want to read.  But let's go back to the



            17   file.



            18            For every single applicant, they go in and read the



            19   rest of the file, no matter how high or low the LSAT scores or



            20   the grades are.  They turn to the undergraduate transcript.



            21   They figure out what they can from the applicant, from all of



            22   that.  Where did the applicant go to college?  What kind of



            23   classes did the applicant take?  Was thee a trend in the



            24   grades?  Was the transcript padded with easy courses?  Did the



            25   applicant compare himself or herself for the study of law?

















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                                                                     59



             1   They turn to the applicant's essays.  What makes this person



             2   tick.  What have they done.  What does this person have to say



             3   about why they're applying to law school. Is there anything in



             4   their background or experiences that make them unusual or



             5   interesting that leads you to think that they will make



             6   special contributions to their fellow students and their law



             7   school class?  Do they have something interesting to say?  Are



             8   their essays well written?  Can they describe something about



             9   their activities, interests, or background which actually is



            10   of note.  And then they'll look at the letters of



            11   recommendation.  Do the applicant's college professors speak



            12   of the applicant?  Do their supervisors or their colleagues



            13   work?  Is this someone who would contribute to the class?  Is



            14   it likely that this person would contribute to the education



            15   of their fellow students?  Is there something in their



            16   background that the recommender can tell us.



            17            And, yes, one of the things that they also look at



            18   and consider is the applicant's race.  Will they contribute to



            19   a racial or ethnic diversity at the law school?  And part of



            20   this is about the concept of critical mass, no doubt about



            21   that.  It's not as if, however, there's a particular number of



            22   law students that is critical mass.  But one of the purposes



            23   of the admissions process is to make sure that there are more



            24   than a token number of minority students because in order to



            25   get the benefits of diversity, you can't create a sense of

















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                                                                     60



             1   isolation among the minority students as you do when you just



             2   have token numbers.  Otherwise,  you will not get the benefits



             3   that you're seeking.



             4            It's not a matter of a concept you can put a specific



             5   number on.  But I think everyone understands what the concept



             6   is about.



             7            Quote -- this is from Bakke,



             8            "When the committee on admissions reviews the



             9             Large middle group of applicants who are



            10             Admissible and deem capable of doing good work in



            11             Their courses, the race of an applicant may tip



            12             The balance in his favor just as geographic origin



            13              or life spent on a farm may tip the balance in



            14              other student's favor."



            15            That's Justice Powell in Bakke.  And that's just what



            16   our policy's contemplates and just what we do.



            17            "So long as the university proceeds on



            18             an individualized case-by-case basis, there



            19             Is no warrant for judicial interference in the



            20             academic process."



            21            That's Justice Powell in Bakke again.



            22            As to the issue of whether the law school's use of



            23   race constitutes a double standard, I think that question can



            24   be very easily resolved.  The elements of the earlier and



            25   discarded special admissions program that Mr. Kolbo talked

















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                                                                     61



             1   about, a special admissions program, they simply don't exist



             2   any more at all.  The evidence will show conclusively that



             3   there are no separate consideration of minority or



             4   non-minority applicants.  That there's no separate data base.



             5   That there are no separate readers of certain files.  That



             6   there are no separate anything.  There is one system.  And all



             7   of the applicants are considered by using the same policy.



             8            In fact, other than the fact that the law school does



             9   pay attention, some attention to number, by trying to enroll a



            10   critical mass of minority students, other than that there's



            11   absolutely no difference in the manner that race is considered



            12   and the manner that say, good essays, or colorful letters of



            13   recommendation are considered.



            14            Does the law school have a double standard for



            15   students with good letters of recommendation?  Of course not.



            16   Does it have one standard for students who have leadership



            17   potential and a different and lower standard for students who



            18   do not?  Of course not.



            19            What the evidence will show is that these are factors



            20   that are taken into account in trying to understand the whole



            21   person who is trying to gain admission to the law school.  We



            22   consider whether the applicant has strong letters of



            23   recommendation.  We consider the applicant's leadership



            24   abilities.  We consider whatever is presented that gives us



            25   insight into the applicant's ability to succeed and to

















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                                                                     62



             1   contribute to the law school.  And we consider race as part of



             2   that process.



             3            The term "double standard" is just a label that's put



             4   on by those who think we shouldn't use race as a factor at



             5   all.



             6            Now, yesterday, I think we all reflected on the life



             7   and inspiration of the Reverend Martin Luther King, Jr.  It



             8   was a time to reflect on progress as well as how much there



             9   yet remains to be done.  It remains to be done to bring us



            10   together as a society and to achieve understanding throughout



            11   society.



            12            "It is not too much to say" noted Justice Powell in



            13   Bakke "that the nation's future depends on leaders trained



            14   through wide exposure, to the ideas of students as diverse as



            15   this nation of many peoples."



            16            Justice Powell then noted that the benefits of a



            17   racially and ethnically diverse student body is a matter as he



            18   said, "even at the graduate level" where "our tradition and



            19   experience lends support to the view that the contribution of



            20   diversity is substantial."  And he concluded by quoting these



            21   two sentences by Swett versus Painter, the 1949 case in which



            22   the Supreme Court found "segregated and legal education



            23   unconstitutional,



            24            "The law school, the proving ground for legal



            25            Learning and practice cannot not be effective in

















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                                                                     63



             1             isolation from the individuals and institutions



             2             with which the law interacts.  Few students and



             3             anyone who has practiced law would choose to study



             4             in an academic vacuum removed from the interplay of



             5             ideas and the exchange of views with which the law



             6             is concerned."



             7            Your Honor, the relevant evidence that will be



             8   presented at this trial will establish that the University of



             9   Michigan law school uses race in an appropriate way to achieve



            10   a diverse student body with a critical mass of minority



            11   students.  It will show that the process reviews each



            12   application individually, one by one, using the same



            13   consideration and that that is exactly what Justice Powell



            14   commended in Bakke.



            15             THE COURT:  Thank you.



            16             Ms. Massie?



            17             MS. MASSIE:  Judge, can we take a short break,



            18   please?



            19             THE COURT:  Sure.  Why don't we take our morning



            20   break right now and we'll be all set.  We'll take about



            21   fifteen minutes.



            22                  (Court recessed, 10:20 a.m.)



            23                             -- -- --



            24



            25













                                                                   64



                           1/16/01 - BENCH TRIAL - VOLUME I



        1               (Whereupon a recess is had.)



        2               THE COURT:  Okay.  You may be seated.  Thank you.



        3      Okay.  I can't say that we will always be as prompt as we



        4      are today, but we took everything off our docket today so



        5      that we would be able to accommodate everybody here.



        6      Sometimes when we say fifteen minutes, what the Court calls



        7      a fifteen-minute recess, I get in the back and there's a



        8      million orders to sign and a million phone calls.  My kids



        9      were calling, something's wrong or car doesn't start or



       10      something like that.  So usually fifteen-minute recess



       11      takes a little bit longer, but today we're going to try to



       12      be as punctual as we can, but I don't want you to believe



       13      that that's going to happen all the time, because it just



       14      doesn't.  And next week, one of these weeks coming up, I



       15      don't think it's next week, I may be presiding, which I



       16      will need to handle miscellaneous matters, too, so with



       17      that said, the Intervener's interested in doing an opening



       18      statement.



       19               MS. MASSIE:  Thank you, Judge, we are.  Judge



       20      Friedman, this will be a trial about the most fundamental



       21      concerns this nation has always faced and faces now.  Our



       22      history has taken shape in a field defined by two magnetic



       23      poles; on one hand the pole is segregation and the



       24      maintenance of inequality, and on the other hand, are truer



       25      and better impulse towards racial equality and integration.











                                                                   65



                           1/16/01 - BENCH TRIAL - VOLUME I



        1      That tension has defined many sectors of our common light,



        2      but no such sector has been as much defined by that



        3      tension, and has been as in turn as defining of that



        4      tension as education.  This case began as an attack on the



        5      measure of progress that we've achieved.  But it gives us



        6      the opportunity, ironically, to achieve far more.  The



        7      Plaintiff's proofs are, in fact, the Intervener's proofs.



        8                  Only one of our witnesses, a statistician named



        9      Kinley Larntz about whom you've heard a little bit will



       10      have anything to say that bears on her basic claim.  That



       11      claim is that aggregate differences by race and test scores



       12      and grades prove discrimination against white law school



       13      applicants.



       14                  In true, as our witnesses for the intervention



       15      will show, that prove exactly the opposite.  They prove



       16      that continuing and persuasive existence of discrimination



       17      and bias against Black and other minority applicants, not



       18      discrimination against white law school applicants.



       19                  Affirmative action will convince you is the



       20      only way to offset that bias against minority applicants.



       21      In fact, it is only possible to read Kinley Larntz work as



       22      evidence of discrimination against white people by sealing



       23      it up in a factual vacuum chamber and therefore by



       24      implicitly accepting the idea that test scores and grades



       25      are fair and race neutral measures of merit, which is to











                                                                   66



                           1/16/01 - BENCH TRIAL - VOLUME I



        1      say, in turn, the view that Black, Latino and Native



        2      American law students are inherently and biologically



        3      inferior.



        4                  The factual erring of all three of the issues



        5      that you have set for trial in this case will definitively



        6      refute that racist and pernicious view.  They'll provide a



        7      context for understanding why the academic criteria are not



        8      race neutral, and why at this moment in our common lives



        9      together they could not be.  They'll show that affirmative



       10      action lessens the extent to which race is a factor in



       11      admissions in real terms, and that affirmative action is



       12      absolutely necessary as a first step toward fairness in the



       13      application process.  And they'll show that race