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
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1
2
3 I N D E X
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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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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
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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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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 --
BENCH TRIAL - VOLUME 1
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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
BENCH TRIAL - VOLUME 1
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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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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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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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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
BENCH TRIAL - VOLUME 1
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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
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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.
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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
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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 is not
14 just a box that you check on an application form so that a
15 statistician can later make distinctions in his data about
16 it as the Plaintiff would have it, but a whole set of
17 contemporary and historical experiences in which inequality
18 and unfairness only ever run one way against black people
19 and other minorities in this society, not ever, not ever
20 yet in our history against white people.
21 So in the end while Kinley Larntz' work is, we
22 agree, marred by exaggeration and mythological problems,
23 its basic point that the criteria differences exist is
24 correct. That points the beginning, not the end of the
25 inquiry. We'll show why these differences exist, why
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1 they're a function of racism; and thus, why the
2 consideration of race and admissions is an absolute
3 necessity.
4 The discrimination against minorities and
5 unearned advantages for white applicants which structure
6 educational opportunity in the broadest sense, including
7 the opportunity to perform at the highest level and which
8 are tempered by affirmative action have several sources.
9 Like we need to begin with broad questions of social and
10 educational inequality and with the connections between
11 race and class, but race is a force in American life,
12 independent of class, and particularly so in education.
13 All of our witnesses will help show how these
14 dynamics are operationalized, are put into effect in higher
15 education admissions, and how they provide a necessary
16 context for evaluating the impact of any admissions
17 program, before you even get to its intent. What's its
18 impact, what are its effects?
19 Gary Orfeld is one of the foremost experts. In
20 fact, it's hard to think of anyone who could really compete
21 with him for this title on school integration in this
22 nation. And he's occupied that position for decades. He's
23 from Chicago. He now teaches at the Harvard School of
24 Education and he's testified in countless cases involving
25 integration and education at all levels, often as a
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1 court-appointed witness.
2 Gary Orfeld will testify about how racial and
3 equality and segregation are growing in our country right
4 now, not -- excuse me, not diminishing, but growing. He'll
5 talk about the social costs that are associated with that.
6 Together with another of our experts, Eugene
7 Garcia, who's the Dean of the Education School at the
8 University of California at Berkeley. Gary Orfeld will
9 show that affirmative action in higher ed is a necessary
10 part of increasing equality throughout the educational
11 system, including in K through twelve; that is to say,
12 diminishing the current, extraordinarily cruel and
13 destructive role of race and races in education, including
14 all the way up on through professional school and through
15 the application process that leads to it.
16 Orfeld and Garcia will show that only
17 affirmative action can help us move forward. They -- only
18 affirmative action can help us move away from a system in
19 which opportunities are sharply constrained and defined by
20 race and racism. Affirmative action, in other words,
21 diminishes the role of race in education and in, excuse me,
22 in admissions. There's no substitute for it.
23 K through twelve improvements depend upon it
24 absolutely. And we can see how necessary it is for
25 achieving a measure of integration in higher ed by looking
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1 at the demographic figures from the University of Michigan
2 Law School before this school adopted affirmative action.
3 It was a segregated school. It wasn't
4 segregated by law but it was segregated, in fact. And in
5 law schools in California and Texas where affirmative
6 action has been eliminated, the schools have returned to
7 segregation.
8 Orfeld and Garcia will be testifying principally,
9 though not exclusively, about race and education with
10 respect to Black and Latino young people. We also have a
11 witness on our may-call list, Faith Smith, who's an expert
12 on Native American educational affairs and she'll be
13 testifying, if time permits, about the dire consequences of
14 eliminating affirmative action on the Native American
15 community and on Native American young people in terms of
16 their ability to get any kind of a higher education. And
17 that's because of the continuing dramatic effect of race
18 and racism, of social inequality by Native Americans in
19 this country.
20 She'll convince you, Judge Friedman, that when the
21 University of Michigan Law School takes the race of the
22 rare Native American applicants who's overcome severe
23 burdens, to the extent that she or he is even in a position
24 of being able to consider applying to a law school, much
25 less a law school such as the University of Michigan. The
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1 law school by taking her race into account is mitigating,
2 is mitigating race discrimination, not adding to it.
3 John Hope Franklin will provide historical context
4 for the program in place at the law school. He'll testify
5 that steps toward integrating education have always meant
6 the reduction of the role of race as a factor in the
7 starkly unequal distribution of educational resources.
8 John Hope Franklin has lived through much of the
9 history that he will describe. And he's one of the world's
10 most honored historians as well as being the Chair of the
11 President's Initiative on Race.
12 There are two very highly regarded scholars on our
13 may-call list, both of whom were originally listed by the
14 university in this case? Thomas Sugrue, who's a
15 sociologist and historian. And Eric Foner, a historian, if
16 called, make clear respectively the contemporary and
17 historical significance of race in American life, its
18 singularity as a category.
19 Sugrue's research is granted in current data from
20 the State of Michigan which, as you know, provides about a
21 third of the University of Michigan Law School students.
22 It shows that race is connected to class in the state,
23 very, very deeply, here as elsewhere, I might add. But
24 that continuing problems of racism in many forms and
25 especially of educational segregation mean that race is
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1 also an independent dynamic. It has its own impact on
2 every aspect of public life in the state.
3 Eric Foner's work puts the significance of race
4 and racism in historical perspective showing that in the
5 context of our history in the United States it's not
6 plausible to think that we could reduce the extent to which
7 race is a factor by claiming to be race neutral in higher
8 ed admissions.
9 Alls the ways in which discrimination against
10 minorities and race-based inequality continue to pervade
11 and structure the educational process. And they have shown
12 to obtain on the very campuses that provide the largest
13 number of student applicants to the University of Michigan
14 Law School. The Intervener's Commission to Study of
15 Conditions for Black, Latino and Native American students
16 on four of the main feeder schools to the law school; the
17 University of Michigan itself, its undergrad college,
18 Michigan State University, UC Berkeley and Harvard.
19 The team of researchers who conducted the study
20 was headed by Walter Allen, who's an educational
21 sociologist at U.C.L.A. who's testified many times in
22 critical and groundbreaking cases involving educational
23 desegregation at all age levels, including Knight versus
24 Alabama and Ayers versus Fordice. He's also testified in
25 other race discrimination and affirmative action cases.
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1 And he's received numerous awards for teaching, research,
2 distinguished careers, scholarship, etc. He was joined,
3 among other people by Dan Sowarzanaw, who teaches in the
4 educational school at U.C.L.A. who we may call if time
5 permits.
6 Across the range of geography and across the range
7 of selectivity represented in the campuses which were
8 studied, the four campuses which were the locusts for the
9 study, the team found overwhelming evidence to confirm and
10 sharpen findings of long-existing research on the severe
11 barriers and pressures that face minority students on
12 mostly white campuses. These are pressures and barriers
13 that they face, due only to their race, that the pressures
14 and barriers isolated out of all the other pressures and
15 barriers that students, as a whole, all students can feel
16 on campuses. They're not related to class, though there
17 are particular -- there's a greater likelihood that a set
18 of pressures and barriers associated with class is going to
19 be faced by more of these students. Those are dealt with
20 in the study. But the study is focused on the pressures
21 and barriers that, specifically, relate to race and to the
22 continuing problems of racism in the environment on those
23 campuses.
24 Those disadvantages and stresses have real
25 concrete demonstrable effects on academic performance. And
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1 that's one of the key points and one of the key findings of
2 the study. It shows definitively that the very slight gap
3 between aggregate GPAs of white students and minority
4 students at the University of Michigan Law School, half of
5 the data that Kinley Larntz relies on for his study is an
6 artifact of discrimination against the minority students,
7 not against the white students.
8 Grades aren't a race-neutral measure of academic
9 performance in undergraduate education, rather they capture
10 the way in which disadvantage for minority students from
11 racial profiling and racist slurs to subtler kinds of
12 stigma, exlcusion and hostility continue to completely
13 define the experiences of Black and Latino and Native
14 American students on those campuses, continue to define the
15 experiences of those students, I should say, every day,
16 every day.
17 If race weren't a factor in admissions to the law
18 school, those forms of racist unfairness and bias wouldn't
19 be just ratified, they would be intensified. Existing
20 racial discrimination would be found to be a basis for
21 further racial discrimination.
22 The basic case of so-called reverse discrimination
23 on differences and GPAs, between white and minority
24 students is to argue, in essence, that racism and its
25 effects should be accepted, indeed and shrined as positive
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1 norms. We reject that course and we're confident that you
2 will.
3 We have a team of standardized testing experts
4 with a lifetime of experience among them. David White, of
5 the Research Advocacy and Training Non-profit, called
6 Testing for the Public, Jay Rosner, of the Princeton Review
7 Foundation, and Marty Shapiro of Emory's Psychology
8 Department.
9 Their testimony will prove that the LSAT and other
10 standardized tests present an even more acute case of bias
11 and unfairness than do other academic criteria such as
12 grades. The bias on such measures is more a matter of race
13 than of class, though it's clearly a matter of both, and
14 includes, but is in no way limited to obviously unfair
15 distracting and/or insulting questions.
16 It involves, fundamentally, the statistical
17 norming procedures that underlie every LSAT administration,
18 the question-selection process, the process of developing,
19 pre-testing and then selecting questions for inclusion in
20 scored sections of the test.
21 Those methods, those statistical norming
22 procedures perpetuate, and indeed tend to increase the test
23 score gap in a relatively consistent way over years and
24 decades. That's in sharp contrast to the grade gap, which
25 has diminished over time as the level of integration and
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1 inequality on our nation's undergrad campuses, while we're
2 still far from perfect and far from where we need to be has
3 increased.
4 That gap in grades has decreased over time. The
5 test score gap remains constant and that, again, is an
6 artifact of test norming procedures. And we have experts
7 who are going to lay that out for you, Judge. The
8 university's expert, Claude Steele, will testify that the
9 test score gap is also a product of how racial stereotypes
10 infect the psychological environment of the test taker.
11 We're also going to have some testimony on how
12 narrow the range of skills measured by tests such as the
13 LSAT is. Unsurprisingly, therefore, it correlates only
14 very weakly with performance in law school and not at all,
15 not in any way with success as a lawyer.
16 The Intervener's expert, Rick Lempert, who's also
17 a fact witness for the university Mr. Payton spoke about
18 earlier. He was on the Admissions Committee in 1992. He
19 came up with a policy that's being challenged here. He's
20 conducted a study on U of M law grads. And he compared
21 minority grads to their white counterparts across several
22 measures of success in practice. There are absolutely no
23 differences between the two groups, except for difference
24 in community service where the minority grads outperformed
25 their white counterparts, differences in mentorship of
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1 young attorneys of all races where the same was true, and
2 differences in provision of services to minority clients
3 where the same was true.
4 Most of the Black and Latino alumni that he
5 studied almost certainly would have been rejected under the
6 admissions system that's proposed implicitly and
7 unavoidably by the Plaintiff's lawsuit.
8 They would have been rejected, despite the
9 contributions they've made to the Bar of this state and to
10 the Bar of the nation. And despite the fact that those
11 entry credentials that would have formed the basis of their
12 objection had no correlation at all with their success as
13 attorneys in practice.
14 Marcus Feldman, who's a professor at Stanford,
15 McArthur Fellow and a Co-director for the Computational
16 Genetics in Biological Modeling Center is a witness who's
17 also on our may-call list who'll be called, if time
18 permits. And he'll show that differences on IQ and other
19 standardized tests, including the LSAT and SAT and other
20 high-stakes educational tests are the product of social
21 inequality. They're not the product of nature and that
22 race itself is a social concept, not a biological one.
23 All of these differences in performance are
24 changeable. They require that we change things about the
25 test. They require that we change things about the
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1 society. But they're all changeable.
2 And, in fact, as you can see from the fact that
3 the gap in grades has diminished over time, we stand on
4 substantial progress. We have a long way to go, but we've
5 come a long way, too. At least two students will take the
6 stand to provide, to provide you, Judge Friedman, with a
7 kind of a first-person perspective on the case that the
8 experts will prove.
9 Agnes Aleobua, who's a Black undergrad at U of M
10 from a middle-class Detroit family, and Connie Escobar,
11 who's a working class Latino and Native American law
12 student, originally from Chicago, will explain how their
13 own educational experiences have been shaped by continuing
14 racist, inequality and disadvantage, both as related to,
15 and as distinct from questions of social class.
16 These young women will also provide the Court with
17 a first-hand sense of what the opportunity to attend the
18 University of Michigan has meant to them in terms of their
19 sense of their own potential, Judge, but also their sense
20 as a potential of this society.
21 In contrast, neither the Plaintiff nor any other
22 member of the class she purports to represent, will take
23 the stand to address the issues or the equities that are at
24 stake in this trial.
25 These matters I've been talking about have to be
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1 addressed even before you reach the university's proofs.
2 Those are proofs that show beyond any doubt whatsoever that
3 the university is acting in good faith, that it has no
4 intent to discriminate against white applicants, and that
5 it's well within the boundaries of Bakke.
6 But you don't even need to get there, Judge. The
7 reason why is that the Plaintiff's proofs, Kinley Larntz'
8 proofs, don't establish that there is any effect of racial
9 discrimination in the U of M's affirmative action policy at
10 the law school. They haven't shown that there's any effect
11 of racial discrimination. And there is no need, therefore,
12 for you to reach the question of intent.
13 Again, if you choose to do so, you'll find that
14 the university is operating in good faith, that there's no
15 racial animus toward white people, that the admissions
16 program is, the affirmative action component of the
17 admissions program is a step toward a fairer and juster
18 system. We're completely confident about that. But
19 there's no need to get to that point.
20 The goals of diversity in moving toward
21 educational integration are more than sufficiently
22 compelling for the university to be doing what it's doing.
23 But the fact is the Plaintiff has established nothing
24 through her statistical evidence. The affirmative action
25 plan that's under challenge mitigates bias and
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1 discrimination against minority applicants. It mitigates
2 the unearned advantages and privileges possessed by white
3 applicants, just merely on the basis of their race.
4 It's not in the end a preference for minorities or
5 even, even a racial classification. It's rather a
6 corrective to a system of preferences, to a system of
7 unearned privileges for white people.
8 The Intervener's experts will present evidence
9 that's well established in several fields, but which has
10 never been brought to bear in a case like this one. We're
11 confident that it's on the basis of that evidence that
12 you'll uphold affirmative action and equality.
13 There have been very unfortunate times in our
14 legal history when courts have stood against integration
15 and for segregation, and in those moments they've
16 discredited the law. That's because integration is what
17 people want. It's what the majority of people want. It's
18 what people have fought for and died for within our
19 lifetimes, several times within the lifetimes of people in
20 this room, Judge. And in the end it's because integration
21 is what is right for our society.
22 THE COURT: Thank you. Plaintiff, first witness.
23 MR. KOLBO: If I could address the Court brief
24 with a matter?
25 THE COURT: Sure, absolutely.
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1 MR. KOLBO: We conferred during the break if it's
2 all right with Your Honor we expect if that Stillwagon will
3 be finished sometime before lunch, and we thought we would
4 not call Miss Munzel until after lunch.
5 THE COURT: That's great. Absolutely. We'll
6 always arrange it so that we can, we don't have to just
7 break and go back and forth. Sure.
8 MR. KOLBO: Thanks, Your Honor.
9 MS. MASSIE: Thanks Judge.
10 MR. KOLBO: In that case, Your Honor, the
11 Plaintiff will call Mr. Allan Stillwagon to the stand as
12 its first witness.
13 THE COURT: Mr. Stillwagon, will you step forward
14 please.
15 A L L A N S T I L L W A G O N
16 was called as a witness and after having been
17 sworn was examined and testified as follows:
18 DIRECT EXAMINATION
19 BY MR. KOLBO:
20 Q. Good morning, Mr. Stillwagon.
21 A. Good morning. Is this on?
22 THE COURT: Tap it. Let's see. No. Thank you.
23 A. How's that?
24 Q. Could you state your full name please, sir?
25 A. Allan Thomas Stillwagon.
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1 Q. Mr. Stillwagon, I'll introduce myself, we've met once
2 before, I think a couple of years ago in the course of your
3 deposition, is that correct?
4 A. Yes.
5 Q. We haven't met since then?
6 A. No.
7 Q. My name is Kirk Kolbo and I represent the plaintiff,
8 Miss Barbara Grutter, in connection with this lawsuit.
9 You're here today because you've been subpoenaed, is that
10 correct?
11 A. Yes.
12 Q. Could you tell us where do you reside?
13 A. In Ann Arbor.
14 Q. Ann Arbor, Michigan?
15 A. Yes.
16 Q. Were you, are you currently employed?
17 A. No, I'm retired.
18 Q. And how long have you been retired?
19 A. Since March of 1999.
20 Q. At some point were you the Assistant Dean and
21 Admissions Director at the University of Michigan Law
22 School?
23 A. Admissions Office, yes, from 1979 to August, 1990.
24 Q. Okay. Was the fall of 1990 the last academic year for
25 which you made admissions decisions at Michigan?
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1 A. Yes. Probably 95 percent that year.
2 Q. And did you hold, essentially, the same position in
3 the Admissions Office from 1979 until fall of 1990?
4 A. Yes.
5 Q. Can you --
6 THE COURT: Excuse me one second. Anyone that
7 wants, any of the lawyers that want to move around, because
8 I see there's -- you're certainly welcome to move anyplace
9 in the courtroom, so you can see.
10 MS. MASSIE: Thank you, Judge.
11 THE COURT: Go on. I'm sorry.
12 MR. KOLBO: Thank you, Your Honor.
13 Q. Could you just describe briefly, generally, what your
14 authority was over admissions decisions during your tenure
15 in the Admissions Office from 1979 up until fall of 1990?
16 A. Well, I inherited a set of practices and principles
17 from the earlier administrations. The policies changed
18 very little during the time I was there. And I had
19 responsibility for making the decisions.
20 Q. Were you the principle decision maker with respect to
21 decisions to admit or deny, or other actions that might be
22 taken with respect to particular applicants?
23 A. Yes.
24 Q. And you made those decisions, and we'll get into it in
25 more detail later on; but you made those decisions pursuant
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1 to policies you understood with the law school with respect
2 to admissions?
3 A. That's right.
4 Q. Would it be fair to say that you were the one who made
5 most of the decisions, admissions decisions, with respect
6 to students who applied from 1979 up until the fall of
7 1990?
8 A. Essentially all of them.
9 Q. Okay. Just to be clear, once you left in 1990, you
10 don't have any knowledge about the current workings of the
11 law school admissions policy, is that correct?
12 A. Not at all.
13 Q. Or practices. You're not familiar -- my understanding
14 is there will be testimony about the fact there's a policy,
15 a written policy that went into effect in 1992. You
16 weren't part of that process, correct?
17 A. No, I was not.
18 Q. Was there, during your tenure, was there a faculty
19 admissions committee or something like that?
20 A. Yes. There's a faculty committee that devoted itself
21 to policy and occasional meetings of which difficult or
22 particular questions were put, but not very often.
23 Q. And so the admissions committee, faculty admissions
24 committee, wasn't very active in the actual making of
25 admissions decisions?
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1 A. No.
2 Q. In the case of particular candidates?
3 A. No.
4 Q. That again fell principally to you, is that right?
5 A. That's correct. If there were other people involved,
6 it would more often have been with me.
7 Q. In a particular case you might take a case to the
8 dean?
9 A. Yes.
10 Q. Would that, was that Dean Sandalow first?
11 A. It was Dean Sandalow, and Dean Bollinger, briefly.
12 Q. I take it there were -- you had a staff, did you not?
13 A. Yes.
14 Q. In the admissions office?
15 A. Yes.
16 Q. Small staff?
17 A. Oh, three to five permanent people, and ten to fifteen
18 during the season.
19 Q. And can you give me some idea what authority those
20 individuals had to make admissions decisions from your
21 tenure?
22 A. They had no authority to make admissions decisions.
23 Q. But they might review files with you, and then you'd
24 make the ultimate decision?
25 A. Not very often. I had an assistant who reviewed files
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1 in the last couple of years, but even so, I read every line
2 of every word of every application.
3 Q. Now, was there any single document or set of
4 guidelines as far as, that set forth in writing the, the
5 law school's admissions policies or guidelines during your
6 tenure?
7 A. Yes. There was an admission policy which was
8 published in the Law School Bulletin.
9 Q. All right.
10 A. And then there were some operational guidelines that
11 were handed down.
12 Q. I wonder if I could ask Dwayne to show the witness
13 Exhibit 55. If you could turn to tab 55, Mr. Stillwagon,
14 and take a moment, if you would, and review the document,
15 find that tab.
16 A. Yes. That's essentially the policy.
17 Q. Let me just take you through a little background here
18 first of all?
19 A. Sure.
20 Q. The first page of Exhibit 55 is identified as Law
21 School Announcement, 1988 to 1989, correct?
22 A. Yes.
23 Q. And then, looks like we got some excerpts here on the,
24 what is identified as page 85, as part of this, because
25 obviously a larger document, there is a page that talks
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1 about J.D. program admission and finances, and below that
2 admissions, is that correct?
3 A. Yes.
4 Q. If you want to take a look -- have you seen this
5 document before?
6 A. Oh, yes, I edited it many times.
7 Q. And is this the bulletin that you just described a few
8 moments ago? It's set forth admission with some policies
9 with respect to admissions practices of the law school
10 during your tenure?
11 A. Yes.
12 Q. Now, I want to focus on, basically, the third,
13 starting with the third paragraph and probably continuing
14 on down to the fourth paragraph of this page, third
15 paragraph beginning "one half of the entering class". And
16 I'm just going to ask you, as you read that, I'm going to
17 ask you some general questions. I'm not going to
18 necessarily take you through this line by line.
19 But the bulletin, as I understand it, describes
20 how a part of the class is selected, "primarily on the
21 basis of particular academics of tests, calculated on the
22 basis of LSAT tests, undergraduate records, and studies of
23 past performance of students of the law". Am I correct
24 that describes one part of the class being selected in that
25 fashion?
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1 A. Oh, yes, but I would emphasize that the last sentence
2 of that paragraph was very much in force as well.
3 Q. The last sentence being?
4 A. "That is to say that given a set of numbers or an
5 index -- nevertheless, my charge during those years was to
6 admit half of the class because of their academic strength
7 at large.
8 Q. Right. Including emphasis on LSAT scores, grades,
9 undergraduate strength, things of that nature?
10 A. Yes, but these were also years in which we were -- the
11 tide was turning and fewer than half of the new law
12 students came to us from undergraduate schools. So
13 graduate and professional schools and other academic
14 achievements were becoming more important.
15 Q. And that's, that describes one part of the, one part
16 of the process, one part of the class that was selected,
17 correct, academic credentials?
18 A. Yes. Keeping in mind that, that half and, half of all
19 other processes was divided by Michigan residents and
20 Michigan non-residents, and they have very different
21 qualifications.
22 Q. Sure, and I'll probably get into that?
23 A. Yes.
24 Q. I'm just trying to sort of make sure -- is the
25 document, basically, an accurate description, at least, as
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1 far as it goes?
2 A. Yes?
3 Q. Of how things worked when you were there?
4 A. Yes.
5 Q. It also describes the document, as the paragraph
6 continues, that another part of the class is selected from
7 a "pool of students"?
8 A. That's right.
9 Q. Who's "grades and test scores qualify them for further
10 consideration and whose selection would make the law school
11 a more livelier place"?
12 A. Yes.
13 Q. Was there sort of this division between, in some
14 respects, part of the class being selected on the basis of
15 academic success, as defined by yourself in the bulletin,
16 and another half roughly being, or other part, at least,
17 being considered on the basis of other factors?
18 A. That's correct.
19 Q. Okay. Was there a distinction during your tenure
20 between students who, on the one hand, were considered
21 primarily on the basis of their academic success, and those
22 who were selected from what's called the pool? Was there a
23 distinction between the kind of credentials that those
24 candidates brought to the school?
25 A. Oh, yes.
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1 Q. What was that? Can you generally describe what the
2 nature of that distinction was?
3 A. Well, the principle distinction, because of the way
4 the pool was constructed, would be that the pool, that is,
5 the two pools; the resident and the non-resident, would
6 have relatively lower LSAT scores than grades.
7 Q. The pool applicants would?
8 A. Yes.
9 Q. And that's both the non-resident pool applicants and
10 the resident pool applicants?
11 A. Yes.
12 Q. They would have relatively low, lower grades and test
13 scores than those chosen from, on the basis of primarily
14 academic success?
15 A. Right.
16 Q. Okay.
17 A. And in addition, the pool would contain all of those
18 with relatively high LSAT scores and grades who were not
19 offered admission the first time around.
20 Q. Okay. Now, the bulletin goes on and refers, I think,
21 on, between pages 85 and 86. It goes on to state that "in
22 administering its admission policy" -- this is at the
23 bottom of page 85, "the law school recognizes the racial
24 imbalance now existing in the legal profession and the
25 public interest in increasing the number of lawyers from
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1 the ethnic and culture minorities significantly
2 underrepresented in a profession. Minorities are strongly
3 encouraged to apply and to call upon Assistant Dean Allan
4 Stillwagon for information and assistance". Going on, and
5 this is now on page 86. "Black, Chicano, Native American
6 and many Puerto Rican applicants are automatically
7 considered for a special admissions program designed to
8 encourage and increase the role for minorities". Did I
9 read that completely?
10 A. Yes.
11 Q. Was there such a thing during your tenure as the
12 special admissions program for certain minority students?
13 A. Yes.
14 Q. And was the special -- we talked earlier -- a few
15 minutes ago we talked about this pool of candidates. Is
16 the special admissions program, is that part of a pool, or
17 is that something different from the pool?
18 A. It's different from the pool.
19 Q. Do I understand then that there were during your
20 tenure, sort of three general categories, putting aside for
21 a moment the issue of residency and non-residency. There
22 are those students selected primarily on the basis of
23 indicators of academic success. There are those students
24 picked, or were picked, from what has been described as the
25 pool; that is, those students with somewhat lower academic
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1 credentials, is that correct?
2 A. Yes.
3 Q. And a third category was there were students picked,
4 minority students from the groups that we've read here who
5 were picked as part of what was called, and you have
6 identified as a special admissions program, is that
7 correct?
8 A. Yes. Although there were of course minority students
9 in every group.
10 Q. There were certainly minority students who were
11 eligible for and who were selected for admission, based
12 solely on academic success, is that true?
13 A. Yes.
14 Q. And there were such students who were, could be
15 selected and were selected from the second category that
16 you talked about, the pool, is that correct?
17 A. Yes.
18 Q. Where were most of them selected from for admission,
19 the ones that were actually offered admission?
20 A. The most, or approximate half of the offers would have
21 come from the first two groups.
22 Q. Okay.
23 A. But --
24 Q. -- Are you talking about minority applicants now?
25 A. Minority applicants.
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1 Q. Okay.
2 A. But that group represented those minority applicants
3 who had applied to all of the top law schools in the
4 country, so the majority of applicants who enrolled would
5 come from special admissions.
6 Q. The majority of minority students who were both
7 admitted and enrolled at the University of Michigan Law
8 School, both those combinations, most of those minority
9 students fell into these designated groups were admitted
10 through the special admissions programs?
11 A. Yes.
12 Q. Now, I just want to make sure I understand this. With
13 these three categories that we've talked about, academic
14 credentials, pool and special admissions program, can you
15 explain to me what the impact of residency versus
16 non-residency was in terms of how selections might be made
17 from those three groups of students?
18 MR. PAYTON: Your Honor, I'm going to, I guess
19 maybe just to preserve the record. I understand how you
20 ruled, but I'm finding this is going further and further
21 out of any zone of relevance, how residents and
22 non-residents and something in the 1980's system that
23 doesn't exist.
24 MR. KOLBO: You know, I think Mr. Payton has
25 talked a great -- talked about that race is one of a number
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1 of factors as part of a larger process. I'm just trying to
2 get some background here as to how this system works.
3 THE COURT: I'll allow it for background, again as
4 background.
5 MR. KOLBO: Can you just describe briefly, is
6 there some relationship between the three categories we've
7 talked about in terms of how selections are made and some
8 relationship, if we know, as between residency and
9 non-residency, as being a factor in the admissions process,
10 generally speaking?
11 A. Very prudently, the first group of non-residents would
12 have the strongest academic interventions, followed by the
13 non-resident pool, followed by the resident academic
14 admissions, followed by the resident pool, followed by the
15 minority students who had not already been admitted in the
16 previous.
17 Q. Well, the last ring being the minority students
18 through the special admissions program?
19 A. Yes.
20 Q. Okay. And when you were describing these one
21 following another, one following the other, was that in
22 descending order of academic credentials?
23 A. Yes. And controlled greatly, but the fact that
24 relevantly few Michigan applicants applied in those years
25 compared to all others, so there weren't very many.
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1 Q. Compared to non-Michigan?
2 A. Non-residents.
3 Q. Are you talking now about the entire applicant pool?
4 A. Yes.
5 Q. Not just minorities?
6 A. No, the entire applicants.
7 Q. Can you generally describe how the strength of the
8 academic credentials of the, of minority students who were
9 applied and enrolled through the special admissions program
10 compared to the academic credentials, generally of the
11 first two groups of students?
12 A. You mean compared to the academic admissions and the
13 pool admissions?
14 Q. Well, let's take, let's take the academic credential
15 admissions first, compared, generally speaking, to the
16 credentials of the minority students admitted through the
17 special admissions program. Are there some generalizations
18 you can make with respect to any differences in the
19 academic credentialing of those two groups?
20 A. Well, in the absence of documents, this is old, an old
21 memory, but.
22 MR. PAYTON: Then, Your Honor, if he doesn't know,
23 he doesn't know, Your Honor.
24 THE COURT: If he doesn't know, he doesn't know,
25 but he didn't say he doesn't know. He said he's doing it
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1 from memory. And I'm sure he'll let us know if he doesn't
2 know.
3 A. Both the non-resident and resident academic admits and
4 enrollees would have LSAT scores in about the top four to
5 five percent nationally. And the grade point averages
6 which vary very dramatically from school to school were in
7 the 3.6 and 3.7 and up range. The minority students
8 admitted through special admissions, with that, would have
9 scores in the mid-thirties.
10 Q. Are you talking about the absolute LSAT score or the
11 percentile?
12 A. No, the absolute LSAT score. And the percentile I
13 wouldn't venture to guess. Now, I should add somewhere
14 along the way that the spread of these numbers is very much
15 different in the '90's than in the '70's because the LSAT
16 score scale was very wide and because a wide-score scale
17 was subject to abuse. It has since been narrowed
18 considerably.
19 Q. The current scale being narrower or wider?
20 A. Much narrower.
21 Q. Well, I guess, can you, do you have a recollection as
22 to whether there were, whether there was any significant
23 differences in terms of the, the, the competitiveness,
24 academically, on the basis of academics, LSAT scores,
25 undergraduate grades between the pool, or between the
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1 students admitted to academic credentials primarily and the
2 special admissions program?
3 A. Yes, there is.
4 Q. Can you describe those generally?
5 A. A considerable.
6 Q. A considerable difference?
7 A. Between the special admissions, admits and the others.
8 Q. With those admitted through academic credentials being
9 substantially higher?
10 A. Yes.
11 Q. Then those admitted through the special admissions
12 program?
13 A. Yes.
14 Q. How long was the -- during your tenure, you were there
15 from 1979 to the fall of 1990 -- was the special admissions
16 program in existence during your entire tenure?
17 A. Yes.
18 Q. When you came on board, you just continued to follow
19 what you understood to be something already in effect?
20 A. Yes. And the special admissions program was
21 re-affirmed by the faculty, perhaps informally, but at
22 least a vote was taken immediately before I came, so there
23 was no, no doubt as I took over that that's what they
24 wanted.
25 Q. Now, were there any, in terms of the students that
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1 were to be admitted through the special admissions program,
2 did you have, did you have an understanding that there were
3 any guidelines as to what percentages or what proportions
4 of the class ought to be your goal to enroll as far as
5 underrepresented minorities in the admissions office?
6 A. Ten to twelve percent was the target of those minority
7 groups which had been particularly specified by the
8 faculty.
9 Q. And the bulletin that we looked at specified a number
10 of racial minorities, is that correct?
11 A. Yes, the faculty named in the terms of the policy;
12 Blacks, Chicanos -- they did not define Chicanos for me,
13 Native Americans and so-called mainland Puerto Ricans,
14 Asian, Hispanic, it could be Cuban, and other minorities
15 were not included in special admissions. And I did not
16 have authority to admit them in special admissions.
17 Q. Puerto Ricans, not from the U.S. mainland were not
18 part of the special admissions program?
19 A. No. The idea was that there were good law schools in
20 Puerto Rico and that the mainland U.S. law schools were not
21 about to raid Puerto Rico for students.
22 Q. How were -- was there some definition that you
23 understood that you were to apply with respect to define
24 who was a Chicano applicant?
25 A. That was a vex question never settled. The faculty
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1 thought it could say Mexican American and be done with it,
2 but Chicano students took exception. And so there was a
3 ten-year discussion who was who.
4 Q. Now, you mentioned the number ten to twelve percent
5 as, as the goal or target?
6 A. Yes.
7 Q. For enrollment of underrepresented minorities from
8 these groups?
9 A. Yes.
10 Q. This is exclusion then of, say Asian Americans?
11 A. Yes.
12 Q. And other racial groups that we haven't identified
13 here as those belonging to the special admissions program?
14 A. That's right.
15 Q. Did you understand -- was that a sort of a fixed and a
16 rigid number, ten to twelve percent, or was it more
17 flexible than that?
18 A. Well, it was flexible in the sense that if the
19 enrollment was three or four people one way or another,
20 there was no serious criticism, but it was a number which
21 had been negotiated or voted on and approved by the
22 faculty.
23 Q. Okay. But it might be a little bit, might it, some
24 years, and we can look at the admissions data I think. I
25 don't think we need to take your time with that but we can,
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1 if we looked at the admissions data in the enrollment
2 figures for the years that you were there, you're not
3 always going to find the same, exact same percentage or
4 number?
5 A. No.
6 Q. Of minority students enrolled in the special
7 admissions program, are we?
8 A. No. It would vary, depending on day one.
9 Q. And if you could enroll more than twelve percent,
10 would you do that?
11 A. Oh, yes, if I could enroll more than twelve percent
12 through the first two programs especially.
13 Q. Okay.
14 A. That was what the faculty hoped would ultimately
15 prevail.
16 Q. What, did you have an understanding as to why it was
17 that the goal was set at ten to twelve percent for
18 underrepresented minority students?
19 A. It was raised from ten percent in the 1970's because
20 ten percent seemed inadequate for the faculty at that time.
21 It -- there was not -- during the time I was there any
22 serious decision taken to change the number because the
23 faculty's watching too carefully the academic performance
24 of the students who were admitted.
25 Q. Was there a concern that if the number were increased
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1 too much that you might have, there would be academic
2 difficulties?
3 MR. WASHINGTON: Your Honor, just, we'd object on
4 the foundation of this question. It seems to me he's
5 testifying from, at least double or triple hearsay.
6 THE COURT: Overruled. He was the person that
7 made that decision, and it's not necessarily for the truth
8 I suspect, it's just as to what his marching orders were.
9 MR. KOLBO: Do you have the question before you?
10 A. No.
11 Q. Well, let me see if I can remember it. Was there a
12 concern expressed -- you would obviously have
13 communications with faculty members about, on occasion, how
14 the admissions process worked, what kind of students we're
15 getting admitted?
16 A. Yeah, constantly. No, only the dean and admissions
17 committee counted, yes.
18 Q. And were there discussions about how one might, how
19 the law school might, how your office might increase the
20 enrollment of students from underrepresented minority
21 groups over and above the ten to twelve percent goal?
22 A. Yes.
23 Q. And was there a conclusion that that would be
24 difficult to do for various reasons?
25 A. The basic reason was that the national pool was not
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1 changing dramatically. There were certain faculty who
2 thought that if I did my job better, we would be more
3 successful. There was also a policy, or there were new
4 financial aid offers being developed at the time I was
5 leaving, which were intended to improve Michigan's
6 performance over competitors.
7 Q. Do you have an understanding, putting aside the issue
8 of how many students were going to be enrolled through the
9 special admissions program; did you have an understanding
10 as the Admissions Officer as to why it was that the law
11 school wanted to have representation at some level of
12 certain numbers, whatever it might be of underrepresented
13 minority students?
14 A. Yes.
15 Q. What was your understanding?
16 A. First and foremost the faculty found it inexcusable
17 and unconscionable that they found themselves in the early
18 '70's with no Black students. They felt, under
19 legislation, spoke to their commitment to minority
20 representation in the Bar, and minority lawyers being
21 available to minority communities, particularly when
22 encouraged to go back to minority communities and practice.
23 As the decade moved from '79 to '80, the
24 contributions of minority students to the classroom
25 experience changed from one that was rarely mentioned to
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1 one that was a constant topic of conversation.
2 Q. Did you consider yourself under a mandate to operate
3 the special admissions program?
4 A. Yes.
5 Q. It wasn't within your discretion to discontinue the
6 special admissions program?
7 A. No.
8 Q. Could you take a look, I think it's in the same book,
9 at Exhibit 53 and turn to page 53, 53, I guess it is?
10 A. My book starts with 54.
11 Q. Oh, I'm sorry. If you could simply turn to page 53?
12 A. Got 53. I'm sorry. Yes.
13 Q. Coincidentally, page 53, and Exhibit 53 at the very
14 bottom there.
15 MR. PAYTON: Hold on. Your Honor, I'm going to
16 object to any use of this exhibit at all, at all. Can I
17 just make my objection?
18 THE COURT: Yes. I thought you stipulated to
19 these exhibits. I'm sorry.
20 MR. PAYTON: No, no. We did not stipulate to the
21 admissibility of any of the exhibits. We have stipulated
22 to their authenticity.
23 THE COURT: Okay.
24 MR. PAYTON: And we reserved any other objection.
25 THE COURT: That's fine.
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1 MR. PAYTON: This memorandum which was written
2 after Mr. Stillwagon, and was based only upon some
3 collection of documents then in the office, is simply
4 irrelevant to anything here, and it doesn't purport to be
5 complete. It's based only on the hearsay in the documents.
6 It's not been verified by anybody. I don't understand why
7 this is being used at all. If he has a question to ask
8 this witness, ask it, but don't ask the witness to try to
9 resurrect a document that's simply irrelevant.
10 MR. KOLBO: Your Honor, I think I can explain.
11 It's a lengthy document. I'm simply asking the witness to
12 refer to a faculty resolution that's quoted verbatim in
13 this otherwise narrative document, and ask him whether this
14 is the, is the faculty, one of the faculty resolutions
15 under which he was operating as the admissions director.
16 THE COURT: Does he have a follow-up question to
17 that? Is that why?
18 MR. KOLBO: I want, basically, to confirm that
19 this is, this is one of the resolutions that he was
20 operating under with respect to the operation of special
21 admissions program.
22 THE COURT: I'm not going to -- the document has
23 not been introduced, so it can't be used for purposes of
24 anything, and it wasn't in existence at the time he was
25 there. But all you want to do is to lay a foundation for
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1 later?
2 MR. KOLBO: I think that's correct, Your Honor.
3 THE COURT: Then I will allow you to do that
4 rather than recalling him at a later time. But I'm not
5 ruling that it's admissible at this time. All I'm saying
6 is that he can lay a foundation for later, should the need
7 arise.
8 MR. KOLBO: Thank you, Your Honor.
9 Q. Mr. Stillwagon, at the very bottom of page 53, the
10 very last two lines there's a date, September 7, 1978. And
11 then it starts and continues on to page 54. And my
12 question to you, as you read it, is whether this is one of
13 the faculty resolutions that guided you with respect to how
14 to operate the special admissions program during your
15 tenure.
16 THE COURT: You may take a minute to read it.
17 A. Well, it's certainly familiar. Whether it's all of
18 the documentation I was using, I can't say.
19 Q. But in any event, you were operating under, what you
20 understood to be faculty mandate with respect to the
21 special admissions program?
22 A. Oh, yes.
23 Q. Would you have, in your judgment -- as the Admissions
24 Director, would you have been able to admit and enroll an
25 underrepresented minority student population of ten to
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1 twelve percent without the use of a special admissions
2 program during your tenure?
3 A. Not without a change in the accompanying policies.
4 Q. And that's a good point. Everything else staying
5 essentially the same, admissions standards otherwise
6 staying the same, had the special admissions program been
7 abandoned, you would not have been able to admit and enroll
8 the ten to twelve percent minority students?
9 A. No.
10 Q. We've seen that the reference to the special
11 admissions program was made in the law school announcement
12 looked at early on.
13 A. Yes.
14 Q. Did you have a sense as to whether it was well known
15 among the faculty as to whether or not there was such a
16 thing as a special admissions program for minority
17 students?
18 A. Oh, I'm sure they all knew.
19 Q. I'm sorry?
20 A. They all knew.
21 Q. Would you explain to minority applicants when they
22 applied, or when they were thinking about applying and
23 contacting your office, would you explain to them what the
24 special admissions program was?
25 A. It would depend on the situation. We used law school
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1 admissions counsel data files to send to all arguably
2 qualified minority students in the United States, a letter
3 from me, a bulletin, an application, a letter from the
4 relevant student organization followed by phone calls from
5 students and from faculty. They surely knew from the
6 effort we extended and the bulletin that there was a
7 special admissions program.
8 On the other hand, one did not go out of the way
9 to say, we want you to know that we're treating you
10 differently. Some students looking at the national data
11 would welcome it very much, and we had lots of letters
12 asking if we had a special admissions program. Other
13 students took offense and did not wish it to be mentioned.
14 Q. Other minority students?
15 A. Other minority students.
16 Q. Took --
17 A. Took the cue --
18 Q. Took offense at being considered as part of a special
19 admissions program?
20 A. Yes.
21 Q. Did they explain why they took offense at that?
22 MR. PAYTON: Your Honor, why is this --
23 MR. KOLBO: I'll withdraw the question, Your
24 Honor.
25 THE COURT: Very well.
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1 Q. If I could just show you then, have you take a look at
2 Exhibit 113 and ask you to show the witness the exhibit.
3 Mr. Stillwagon, during your tenure was there such an entity
4 or such a meeting called together from time to time called
5 the Law School Committee of Visiters?
6 A. Yes, every year.
7 Q. And what was -- can you just describe what it was?
8 A. It was a group of distinguished alumni and a few, I
9 think increasing number of non-alumni, who came to the
10 school each year to take a look at the operations, to
11 attend classes, to receive reports from the dean and the
12 associate dean about what was going on in the law school.
13 And every year our admissions report was prepared first for
14 the committee visitors.
15 Q. Did you play some role then in the Committee of
16 Visitors meetings each year?
17 A. I attended, sometimes I presented the admissions
18 report, but usually the dean was there and I prepared the
19 written report as it related to admissions.
20 Q. And if you could just thumb through yourself Exhibit
21 113 and tell me if you recognize that as an excerpt
22 concerning admissions statistics for the year 1990.
23 A. Yes, although --
24 THE COURT: Could you pull the microphone just a
25 little bit closer? There you go. Thanks.
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1 A. Remember this is a year in which I did not produce
2 these numbers.
3 Q. Okay. Well, maybe you can perhaps turn to the
4 preceding exhibit, Exhibit 112, which is another Law School
5 Committee of Visitor's Report of 1989. This would be
6 during your tenure, is that right?
7 A. Yes.
8 Q. And do you recognize this as a document that you would
9 have prepared that compiled various admissions statistics?
10 A. Yes.
11 Q. For the -- would this be for the class enrolled in
12 1989?
13 A. Yes.
14 MR. KOLBO: We would offer Exhibit 112, Your
15 Honor.
16 THE COURT: Any objection?
17 MR. PAYTON: Yes, I think it's simply irrelevant.
18 I'm going to object to all of this, but I think this is
19 completely irrelevant. It's about a time twelve years ago.
20 THE COURT: What's the relevance?
21 MR. PAYTON: It doesn't have anything to do with
22 this case.
23 THE COURT: What's the relevance?
24 MR. KOLBO: Well, Your Honor, I believe if we
25 would demonstrate that if this pattern continues in later
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1 years after 1992, it's historical evidence of the same
2 practices and policies at the law school.
3 MR. PAYTON: We have the current policy. It's not
4 in dispute. They don't dispute that it's the one that
5 governs all decisions today. Now, if they want to draw
6 gross comparisons between this and any historical period, I
7 just think it's not relevant at all, not at all.
8 MR. KOLBO: Well, Your Honor, if what happened in
9 1990 can be shown to describe -- well, what's happening in
10 1992 and afterwards, it seems to me that's at least
11 probative and the Court can decide what weight to give it,
12 but it's probative.
13 MR. WASHINGTON: Your Honor, first of all we join
14 Mr. Payton's objection as to relevance, but just joining
15 Mr. Kolbo's last point, I think the critical question is,
16 have they linked it up. And at this point they haven't
17 linked it up at all.
18 THE COURT: I'll admit it, however without, with
19 taking the objections seriously as to both relevancy as
20 well as, there's got to be some link, so I'll accept it,
21 how much weight, if any weight will be given.
22 Q. All I want to know, take your time on this, Mr.
23 Stillwagon, is if you could turn -- I'm not sure that the
24 pages are numbered inside here. There's a section, I think
25 it's page one, two, three, four, the fifth page into
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1 Exhibit 112 there's -- the page is headed the "Admissions
2 Years of Means and Medians". Do you see that here?
3 A. Yes.
4 THE COURT: There's a number on top.
5 MR. KOLBO: Of the page, Your Honor.
6 THE COURT: On top of each page.
7 MR. KOLBO: On 23, yes, page 23.
8 A. I don't have the page number, but I have the
9 admissions year and the means.
10 Q. Okay. Is this sort of a compilation of, as I take it,
11 admissions data with respect to means, GPA's, immediate
12 GPAs, for the class that enrolled in 1989 and then compared
13 to the class enrolled in 1988?
14 A. Yes.
15 Q. There's three categories identified at the top, one,
16 two and three. Do you see that?
17 A. Yes.
18 Q. Can you just tell me what those three columns stand
19 for?
20 A. One, two and three are the special pieces of the
21 admissions process we discussed earlier, the academic, the
22 so-called pool and special admissions.
23 Q. Is the data that's reflected here -- I'm not asking
24 you to crunch all the numbers here, but does this generally
25 confirm your testimony earlier that the academic
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1 credentials of students admitted through this special
2 admissions category, at least is measured by, say mean, GPA
3 or, mean LSAT, or substantially lower than for the other
4 two applicants categories?
5 A. Those admitted through special admissions, yes.
6 Q. Yes. Did you, during the course of your -- I'm
7 finished with that particular document, Mr. Stillwagon.
8 During the course of your tenure as the Admission Officer,
9 did you ever have any conversations to ask Dean Bollinger
10 about the special admissions program?
11 A. Dean Bollinger and I spoke very rarely. We had one
12 conversation about the prospects for minority admissions in
13 the near future, at which I expressed the view that if the
14 faculty should decide to increase the number of Black,
15 Chicano, Native Americans and Puerto Rican students, we
16 could do that without lowering the academic numbers to the
17 point where the students were at great risk, but I did not
18 think we could increase the number substantially just
19 because we were Michigan, and just because we were trying
20 harder.
21 Q. Did you ever receive any instructions from people that
22 wanted to change anything with respect to the way the
23 special admissions program was operated?
24 A. No.
25 Q. Did you ever receive any criticism by Dean Bollinger
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1 about the manner in which your office operated the special
2 admissions program?
3 A. No. Although it was clear that he had greater faith
4 than I did that, that putting more money in the operation
5 producing dramatic result.
6 Q. As of the time that you left --
7 THE COURT: Put more money into the operation,
8 what do you mean?
9 A. By providing full-ride scholarships for minority
10 students.
11 THE COURT: For minorities?
12 A. For minorities, which many law schools do, and which
13 we were experimenting.
14 THE COURT: I see.
15 Q. As of the time that you left the admissions office in
16 the fall of 1990, was there under any consideration any
17 plan to abolish or cut back the special admissions program
18 for minority students?
19 A. No.
20 MR. KOLBO: I have no further questions, Your
21 Honor.
22 THE COURT: Very well. Are you going to be using
23 the overhead? If not, we'll turn the lights on.
24 MR. PAYTON: Turn the lights on.
25 MR. KOLBO: Your Honor, might I -- I did neglect
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1 to offer Exhibit 53. If I might do that at this time.
2 THE COURT: Any objections?
3 MR. KOLBO: The law school book.
4 MR. PAYTON: From 1989.
5 MR. KOLBO: Yes.
6 MR. PAYTON: Yes. I object on the grounds that
7 it's just simply irrelevant. It's describing a system
8 that's simply not relevant to this case.
9 MR. WASHINGTON: And we join in that objection,
10 Your Honor.
11 THE COURT: Again, I'll accept it, however without
12 commenting or indicating in any manner that I will give it
13 any weight at all.
14 CROSS EXAMINATION
15 BY MR. PAYTON:
16 Q. Mr. Stillwagon, you testified about the special
17 admissions program that you operated.
18 A. Yes.
19 Q. I believe you said it was a faculty policy?
20 A. Yes.
21 Q. Was it your understanding that policy in this area was
22 made by the faculty of the law school?
23 A. Yes.
24 Q. As of August, 1990, that's the time you were leaving,
25 you thought that Dean Bollinger was considering coming up
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1 with a new written policy in admissions, didn't you?
2 A. On?
3 Q. On admissions?
4 A. Not until fifteen minutes before I departed.
5 Q. Well, let me just say -- you can give me the answer
6 whenever you learned it, but here's the question. Listen
7 to it. As of August, 1990, that's the date you ceased
8 having any responsibilities for admissions?
9 A. Yes.
10 Q. As of that date, you thought that Dean Bollinger was
11 considering coming up with a new written policy on
12 admissions, didn't you?
13 A. No.
14 Q. Do you remember being deposed in this case?
15 A. Yes.
16 Q. May I have his deposition? Will you go to page 48, 49
17 of your deposition. You do recall being deposed in this
18 case? Mr. Kolbo and I asked you questions under oath and
19 you gave answers.
20 A. Right.
21 Q. Are you on page 48?
22 A. Yes.
23 Q. Do you see a question at the bottom of the page? I'm
24 going to read the question and the answer. Question: "Was
25 there any consideration as of the time you were leaving --
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1 was there talk about changing or coming up with a new
2 written policy on admissions"?
3 A. Excuse me. I don't see where you are. I'm on page --
4 Q. -- 48.
5 A. Forty, oh, I see. I see it.
6 Q. Do you see it? I'm going to read it again. Question:
7 "Was there any consideration as of the time you were
8 leaving? Was there talk about changing or coming up with a
9 new written policy on admissions? Answer: "On admissions
10 overall"? Question: "Admissions overall". Answer:
11 "Well, I think that was what Lee must have had in mind. We
12 never discussed it". Do you see that?
13 A. Yes.
14 Q. Were you asked that question and did you give that
15 answer?
16 A. Yes. It doesn't seem to me inconsistent.
17 Q. Well, you seemed to know something, though, didn't
18 you?
19 A. Well, I did at the time I left.
20 Q. Okay. At the time you left you knew?
21 A. That day.
22 Q. Something about there was going to be a new written
23 policy on admissions?
24 A. That day.
25 Q. That day.
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1 A. Yes.
2 Q. As you left, you knew Dean Bollinger was considering a
3 new written policy on admissions, is that right?
4 A. Written, no. I can't say that.
5 Q. That's what this question said?
6 A. Then I must have answered incorrectly.
7 Q. Okay. So your answer at your deposition was
8 incorrect?
9 A. To the extent that I knew that he was planning any new
10 written policy.
11 Q. Okay. And when you were leaving -- this is August,
12 1990 again?
13 A. Yes.
14 Q. You thought that your leaving the Office of Admissions
15 was based on disagreements in policy regarding the office,
16 isn't that correct?
17 A. Yes.
18 Q. Disagreements with the dean?
19 A. Yes.
20 Q. Disagreements with the faculty?
21 A. No, not that I knew of. That may have been true.
22 Q. Now, there were also at this time and earlier
23 complaints from applicants to the law school regarding
24 offensive statements made by persons in the admissions
25 office towards them. Isn't that correct?
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1 A. I have never heard that.
2 Q. You have never heard of any complaints about students,
3 applicants complaining about offensive statements made to
4 them by persons in the Admissions Office when you were the
5 director?
6 A. Never.
7 Q. Now, up until the time of your deposition a couple
8 years ago, you were unaware that there was a new written
9 policy regarding admissions, weren't you?
10 A. Yes. Well, local gossip.
11 Q. You knew something from local gossip?
12 A. Something was up, sure.
13 Q. You didn't have any direct knowledge?
14 A. No.
15 Q. Of a new written policy?
16 A. No.
17 Q. And you certainly understand that it is the faculty
18 prerogative to come up with new policies regarding
19 admissions, as well as other things?
20 A. Sure.
21 Q. And if you were the Director of Admissions, you would
22 implement that new policy, isn't that correct?
23 A. That's correct.
24 MR. PAYTON: That's it.
25 THE COURT: Mr. Washington.
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1 MR. WASHINGTON: Thank you, Your Honor.
2 CROSS EXAMINATION
3 BY MR. WASHINGTON:
4 Q. Mr. Stillwagon, as I understand your testimony, even
5 in the 1980's, the category called, you called academic
6 admits, as I understand it, you didn't simply crunch the
7 numbers for those persons when you evaluated their academic
8 credentials, am I correct?
9 A. That's correct. That was the starting point.
10 Q. And you would look at a number of factors even then
11 strictly on an academic basis, is that correct?
12 A. That's correct.
13 Q. Now, Mr. Kolbo asked you some questions about
14 background, but he stopped back at a certain point. When
15 was your first connection with the University of Michigan
16 Law School?
17 A. 1959.
18 Q. You went there?
19 A. Yes.
20 Q. And how long were you there, sir?
21 A. Well, off and on between 1959 and I believe 1965,
22 three times.
23 Q. Okay. And when did you return to the University of
24 Michigan Law School?
25 A. 1979.
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1 Q. And would it be fair to say, sir, that during the
2 1960's and up until the early 1970's, from what you know,
3 there was no explicit consideration given to the race of
4 any applicant?
5 A. Oh, no, I did know that because I helped many
6 students, including minority students apply to the
7 University of Michigan.
8 Q. I understand, but in terms of evaluating students,
9 would it be fair to say that there was no affirmative
10 action program during the 1960's? Or do you know?
11 A. Oh, during the 1960's?
12 Q. Yes.
13 A. I get my dates right here. During the 1960's, I would
14 have no knowledge.
15 Q. When you were there, though, would it be fair to say
16 that there were, essentially, no Black students at the
17 University of Michigan Law School?
18 A. When I was enrolled?
19 Q. Yes, sir.
20 A. Essentially none. Amelia Kearse was there, Harry
21 Edwards was there.
22 Q. Mr. Edwards who became DC Circuit Court of Appeals
23 Judge?
24 A. Yes.
25 Q. But other than the occasional person who became a
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1 Federal Appeals Court Judge, there weren't any Black
2 students, right, nobody?
3 A. Very rare.
4 Q. And that continued until the nineteen, early 1970's,
5 did it not?
6 A. Yes.
7 Q. And that's what affirmative action began to change, is
8 the character from an all-white institution, to an
9 institution that, at least had a few Black people in it,
10 correct?
11 A. Yes.
12 Q. And is it your understanding that that change was made
13 possible because there was some attention paid to the race
14 of people who applied?
15 A. Yes.
16 Q. Now, sir, I want to just skip ahead here. You
17 mentioned that while you were Dean of Admissions Officer,
18 that you would receive material from the law school
19 admissions counsel on every minority applicant who scored
20 above a certain qualification score, am I correct?
21 A. And who had made its way into the LSAT database.
22 Q. Okay. But not necessarily somebody who had ever
23 thought about going to the University of Michigan?
24 A. There were, on the LSAC application forms, that is the
25 forms that the students filled out before taking the test
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1 or before submitting the transcripts for analysis, there
2 were in some years, but not all years, ways to indicate
3 that you were interested in the University of Michigan.
4 That would be indicated on reports.
5 Q. Okay.
6 A. From the central organization. We would have paid
7 more attention to those than others.
8 Q. Okay. But as I understand your testimony you would
9 send out applications and invitations to apply to everybody
10 who you got from that database, whether or not they had
11 expressed any interest in the University of Michigan?
12 A. Yes, as long as they seemed arguably qualified.
13 Q. Okay. And would it be fair to say that even that kind
14 of recruitment policy did not result in a sufficient number
15 of admits in the, what you've called the academic criteria,
16 category to come anywhere close to that ten to twelve
17 percent target range that you said you had?
18 A. That's right.
19 Q. Because that pool was very small, wasn't it?
20 A. Yes.
21 Q. And those persons often went to some other law school,
22 am I correct?
23 A. Yes.
24 Q. Would it be fair to say then that during the time you
25 were Admission Officer, that without affirmative action,
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1 meaning some kind of potential consideration of the race of
2 the applicant, that there would have been very few Black
3 law students at the University of Michigan at that time?
4 A. That's right.
5 Q. And would it be fair to say then that, and we
6 understand you do not know what the policy was after '92.
7 And as I understand it, there could be different ways of
8 considering race and different procedures and all of that,
9 but from your experience as an Admissions Officer, unless
10 you consider race as an explicit factor in considering
11 people who apply, you end up with virtually an all-white
12 school, am I correct?
13 A. I'm sure that is still true. I don't have access to
14 the national data.
15 Q. I understand.
16 A. But I can't imagine it has changed.
17 Q. Okay. Last question, or last area. You indicated
18 that you had a discussion with Dean Bollinger about, well,
19 could we increase the number of minority, all minority
20 students beyond the ten to twelve percent that you had
21 during your tenure. Do you recall that discussion?
22 A. Yes.
23 Q. And as I understood your answer, you told the dean
24 that there were sufficient qualified people, that if you
25 wanted to, you could increase that number without putting
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1 anybody at risk as to whether they would graduate or not,
2 am I correct?
3 A. Without putting anybody at greater risk than they were
4 already.
5 Q. I understand. We all have risk, right?
6 A. Yes, but there is a special consideration when you
7 turn to the admission of that part of the glass where the
8 predictors are a little discouraging.
9 Q. Okay. But as I understand it, sir, your advice to the
10 dean at that point was that you could increase that number
11 without increasing, putting anybody at any increasing risk
12 than they already were?
13 A. Yes, I was sure I could.
14 Q. And you and he had a disagreement about whether you
15 could do that, based on the Michigan name or money or how
16 you go about it?
17 A. No. We didn't have a disagreement about that. I
18 mean, this was a conversation which I instigated on that
19 topic and at that time and that conversation, he just took
20 the information.
21 MR. WASHINGTON: Okay. I have no other questions,
22 Your Honor.
23 THE COURT: Any questions?
24 MR. KOLBO: We have none, Your Honor.
25 THE COURT: Very well. You may step down. Thank
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1 you very much. It's now 12:05. Do you want to reconvene
2 at 1:05? Is that good for everybody, enough time for lunch
3 for everybody? 1:05. We stand in recess.
4 (Whereupon a recess is had.)
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1 _ _ _
2 (Court back in session.)
3 THE COURT: Next witness,
4 please.
5 MR. KOLBO: Your Honor, again just to
6 keep the Court apprised of our discussion of what we
7 had in mind today this afternoon subject to the
8 Court's approval is, we expect that most of the
9 afternoon would be taken up with Ms. Munzel.
10 And Mr. Payton and I have discussed
11 what we would like to do is regardless of when I
12 finish which would be sometime mid to late this
13 afternoon.
14 We would just agree to start tomorrow
15 with our last witness, which is Dr. Kinley Larntz.
16 THE COURT: That's fine, no problem.
17 I just assume not to have to inconvenience witnesses
18 for a half hour, 45 minutes or even an hour.
19 MR. KOLBO: Thank you, your Honor.
20 THE COURT: Even more, it's
21 important.
22 MR. KOLBO: Our next witness, your
23 Honor, is Erica Munzel.
24 THE COURT: We're just waiting, the
25 Intervenors are not quite back yet.
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1 (Discussion off the record.)
2 THE COURT: Okay, your next witness.
3 MR. KOLBO: Your Honor, Plaintiff
4 call Ms. Erica Munzel as our next witness.
5 THE COURT: Okay.
6 ERICA MUNZEL,
7 was thereupon called as a witness herein and, after
8 having been first duly sworn to tell the truth, the
9 whole truth and nothing but the truth, was examined
10 and testified as follows:
11 MR. PAYTON: Your Honor, just an
12 interjection, my partner Craig Goldblatt will be
13 defending in this phase.
14 THE COURT: On this one?
15 MR. PAYTON: Yes.
16 THE COURT: Great.
17
18 DIRECT EXAMINATION
19 BY MR. KOLBO:
20 Q. Good afternoon, Ms. Munzel.
21 A. Good afternoon.
22 Q. Could you state your full name, please?
23 A. My name is Erica Munzel.
24 Q. And your address?
25 A. My address is 1559 Long Meadow Trail, Ann Arbor,
GRUTTER -v- BOLLINGER, ET AL.
127
1 Michigan.
2 Q. Ms. Munzel, we met once before a couple of years ago
3 now?
4 A. Yes.
5 Q. My name is Kirk Kolbo and I'm one of the lawyers
6 representing the Plaintiff in this case.
7 A. Yes.
8 Q. You are, am I correct, the current director of
9 Admissions at the University Michigan Law School?
10 A. That's correct, yes.
11 Q. And you've held that position for how long?
12 A. Approximately three years.
13 Q. And you assumed that position, I think, was it in
14 May of 1998 as far as the official title?
15 A. That's correct.
16 Q. Before that I think you were acting director
17 starting about January of 1998?
18 A. That's right.
19 Q. And you replaced, as I understand it, Dennis Shields
20 as the Admissions director?
21 A. That's right.
22 Q. And you started in the office of Admissions sometime
23 in 1993?
24 A. That's right. In August of 1993.
25 Q. And have been there continuously ever since?
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1 A. Yes.
2 Q. Before I kind of start at the beginning, I wanted to
3 ask you a couple of questions about the LSAT and how
4 that works.
5 I assume you're pretty familiar with
6 how that's scored, that is for the national
7 percentile or have some general familiarity with
8 what a score means?
9 A. Yes, with the Law School Admissions test?
10 Q. Yes.
11 THE COURT: Let me ask a question
12 first. How does one become a director of
13 Admissions, did you start as a professor, or is this
14 a career goal?
15 A. That's a good question. I actually graduated from
16 the University of Michigan. I got a bachelor's
17 degree in 1978, and I worked for a couple of years
18 before returning to Ann Arbor where I got my law
19 degree.
20 So, I graduated from the
21 University of Michigan Law School in 1983. I then
22 practiced law in Chicago for about ten years. I
23 worked at a private law firm where I did litigation,
24 commercial litigation.
25 And then I worked in the Cook County
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1 Public Guardian's Office. I represented children in
2 abuse and neglect cases there. And after about four
3 years in that position, I wanted to return to
4 Ann Arbor where my parents lived, because there were
5 some health issues in our family.
6 And so I was interested in returning
7 to Ann Arbor, and had always had a fondness for the
8 University of Michigan. And learned that there was
9 a position available in the Admissions Office.
10 So, I pursued that position and was
11 very fortunate to be the selected candidate by
12 Dean Shields, who was looking to hire his deputy in
13 the Admissions Office.
14 THE COURT: So you learned on the job
15 training?
16 A. That's very much true.
17 THE COURT: Okay.
18 A. I had a great teacher.
19 BY MR. KOLBO:
20 Q. And is it fair to say, Ms. Munzel, that as a
21 director of Admissions--is that your title, by the
22 way?
23 A. My title is assistant dean.
24 Q. Director of Admissions, is that your title?
25 A. My title is assistant dean and director of
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1 Admissions.
2 Q. And are you the most senior person within the office
3 of Admissions, as far as admission making decisions?
4 A. Yes.
5 Q. And, in fact, you've been the most senior person in
6 the Admissions Office since you became acting
7 director and then full director of Admissions?
8 A. That's correct, yes.
9 Q. Is it fair to say that you have made the vast
10 majority of admission decisions at the University of
11 Michigan Law School since you assumed the position
12 of acting director in 1998?
13 A. That's correct, yes.
14 Q. And I take it that was true, for example, with
15 respect to this class adjusted rule in the fall of
16 2000. You were the person who made the vast
17 majority of admission decisions for that class?
18 A. Yes.
19 Q. And my recollection, one of the things I learned in
20 this case is, that you're probably right in the
21 middle of the admissions cycle for the fall of 2001,
22 is that right?
23 A. That's correct.
24 Q. There's other things you could be doing right, is
25 that right?
GRUTTER -v- BOLLINGER, ET AL.
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1 A. That's true.
2 Q. Is there still a Faculty Admissions Committee?
3 A. Yes.
4 Q. And how active is the Faculty Admissions Committee
5 in the decision making process?
6 A. The Faculty Admissions Committee, the members of
7 that committee varies a little bit from year to
8 year. And their involvement is to advise on
9 particular files that we bring to the Committee.
10 They're very involved in selecting
11 merit scholarship recipients. The Committee
12 actually also handles Financial Aide, it's the
13 Financial Aide and Admissions Committee.
14 So, sometimes there are financial
15 aide issues that comes to the Committee, sometimes
16 there's admission issues that comes to the
17 Committee.
18 Q. Is it fair to say that the Faculty Admissions
19 Committee does not make a significant number of
20 decisions with respect to whether to admit or deny
21 students out of the entire class that's selected?
22 A. I make the vast majority of the decisions with the
23 guidance of the Faculty Committee.
24 Q. And there is a written admissions policy in effect
25 for the law school?
GRUTTER -v- BOLLINGER, ET AL.
132
1 A. Yes.
2 Q. Wayne, could I ask you to show the witness Exhibit 4
3 or the book.
4 THE COURT: That's Exhibit 4. I have
5 my copy right here.
6 BY MR. KOLBO:
7 Q. Do you have Exhibit 4 in the notebook there in front
8 of you?
9 A. Yes.
10 Q. Is Exhibit 4 a copy of the Law School's Admissions
11 Policy in effect today? Take whatever time you need
12 to look at it. And I think I might preface that by
13 suggesting the first page of Exhibit 4 are the
14 minutes of a resolution of the faculty approving
15 what has been attached to the same document, the
16 actual policy itself?
17 A. Yes, that's correct.
18 Q. And am I correct that this policy, Exhibit 4, we can
19 call it the admissions policy today.
20 A. That's fine.
21 Q. This policy has been in effect during the entire
22 time of your tenure within the Admissions Office, is
23 that true?
24 A. Yes, that's true.
25 Q. Has the policy changed in any respect since it was
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1 adopted, at least, as far as you know?
2 A. No, the policy has not changed.
3 Q. As director of Admissions, assistant dean and
4 director of Admissions, do you consider yourself and
5 your Admissions staff to be obligated to carry out
6 the policy as it's written?
7 A. Yes.
8 Q. Do you consider that you have as the Admissions
9 director any discretion to disregard the policy and
10 to adopt your own policy that might be in some
11 respects inconsistent with the faculty admissions
12 policy?
13 A. No.
14 Q. And do you, as far as you know, do you make all of
15 your Admissions decisions on a year to year basis,
16 in accord with the manner in which the policy
17 direct?
18 A. Yes, I do my very best to do that.
19 MR. KOLBO: Your Honor, we would
20 offer Exhibit 4 into evidence.
21 THE COURT: I assume there's no
22 objection.
23 MR. GOLDBLATT: None.
24 MR. WASHINGTON: No objection.
25
GRUTTER -v- BOLLINGER, ET AL.
134
1 BY MR. KOLBO:
2 Q. Ms. Munzel, now I would like to ask you about the
3 policy, and I'm going to start by asking you to turn
4 to page three, if you would, of the policy.
5 There's a reference, I think, on page
6 three to index scores, is that a term that's
7 familiar to you?
8 A. Yes, it is.
9 Q. And the policy goes into this in some detail, but I
10 want to just see if I understand it correctly.
11 The index score, a selected index
12 score which is the same thing as the index score,
13 correct?
14 A. Yes.
15 Q. Those terms are kind of used interchangeably. Am I
16 correct that an index score is a single number that
17 through a calculation of a formula, represents two
18 variables.
19 An applicant's cumulative
20 undergraduate grade point average, and the
21 applicant's LSAT score?
22 A. Yes. The LSAT score that is used, is the average
23 LSAT score if the candidate took the test more than
24 once.
25 Q. Okay. And through a formula the Law Service
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135
1 Administration administers, they will calculate
2 whatever an applicant's index score is based on just
3 those two variables, correct?
4 A. The Law Services make a recommendation about what
5 that formula would most appropriately be. And then
6 that is programmed into our computer data base.
7 And you should know that the GPA is,
8 the undergraduate GPA as calculated by the
9 Law Services.
10 Q. And they make a recommendation about the formula,
11 the Law School is free to use it or not, correct?
12 A. Correct.
13 Q. Let me just ask you this, you may or may not know.
14 But am I correct that the roughly formula provides
15 that the applicant's LSAT score, or the average of
16 the applicant's LSAT score is approximately
17 two-thirds of the value of the selection index?
18 A. I don't know the exact formula of the index.
19 Q. To your knowledge, has the formula ever changed in
20 any significant fashion during the time that you
21 have been at the Admissions Office?
22 A. I don't really know what the formula is. So it's
23 difficult for me to say for sure whether it's
24 changed.
25 Q. You have never passed on any requests that the
GRUTTER -v- BOLLINGER, ET AL.
136
1 formula be changed to Law Services, correct?
2 A. No, I have not.
3 Q. If I could ask you then to turn to page four of
4 Exhibit 4, and I'm looking now there's really only
5 one full paragraph on this page starting, "The
6 Committee draws the following conclusions from these
7 facts."
8 Do you see that paragraph there?
9 A. Yes.
10 Q. I just want to read the statement, first of all, in
11 the policy. "Bluntly, the higher one's index score,
12 the greater should be one's changes of being
13 admitted."
14 Is that, in fact, a generally true
15 statement of how the Admissions policy or process
16 works under your tenure?
17 A. Yes.
18 Q. The policy also states on page four that, "We expect
19 the vast majority of those students we admit to have
20 high index scores."
21 Is that also a generally true
22 statement of how the process in the Admissions
23 Office actually works?
24 That is, in the vast majority of
25 cases the admitted students have high index scores?
GRUTTER -v- BOLLINGER, ET AL.
137
1 A. Yes, it is.
2 Q. In addition to the reference to index scores, the
3 policy also refers to a grid, combining the same two
4 factors that go into the selection index. I think
5 this was actually on page six of the policy.
6 Am I correct there's a reference
7 there to the grid that's attached to, I think, the
8 last page of the policy itself? I call it a grid, I
9 think it's been referred to that.
10 A. Yes. I believe in about the middle of that
11 paragraph it says, "The result of the actual
12 decision making has been that the pattern of our
13 admissions decisions may be nicely visualized in
14 terms of a grid with LSAT scores along with one
15 axis, and undergraduate GPA along the other."
16 Q. And it also goes on to state, again I'm on page six
17 here, after the reference to the figure that's
18 attached. "Most of our admitted students have had
19 LSAT scores and undergraduate grade point averages
20 that placed them in the upper right hand portion of
21 the grid.
22 Applicants located at the extreme
23 upper right hand corner of the grid where the
24 highest LSAT scores overlap with the highest
25 undergraduate grade point averages are very likely
GRUTTER -v- BOLLINGER, ET AL.
138
1 to be admitted, although not all are offered
2 admission."
3 Is that, in fact, a true
4 characterization of the way admissions generally
5 works, the admissions process?
6 A. Yes.
7 Q. And then the policy continues to state, "The further
8 applicants are from the upper right corner, the less
9 likely they are to be offered admission."
10 Is that again an accurate
11 characterization of the way things actually work in
12 the admission process?
13 A. Yes.
14 Q. And then it goes on, "Thus we may think of the upper
15 right portion of the grid as indicating the
16 combinations of LSAT and undergraduate grade point
17 averages that characterize the overwhelming bulk of
18 student admitted."
19 Is that again a generally accurate
20 statement, with respect to how things actually turn
21 out in the admission process?
22 A. Yes, it is.
23 Q. The statements in the policy about the higher one is
24 up under grid, further up to the right one is in the
25 grid having a greater likelihood of admission,
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139
1 that's kind of another way of saying, isn't it, that
2 the policy says earlier which is, bluntly, the
3 higher one's index score is, the higher one's chance
4 should be of being admitted, basically the same
5 thing?
6 A. Yes.
7 Q. Now, there is, I take it, although you've got an
8 admissions policy that you are mandated to operate
9 under. I assume that there is discretion that
10 you're able to exercise in your office, correct?
11 A. Yes, there's a lot of discretion.
12 Q. We talked about LSAT scores, we talked about grids
13 now. And I take it that you don't simply, and I
14 think I have learned this in the course of this
15 lawsuit, you don't simply take select index scores,
16 or LSATs or GPAs by themselves and rank them in
17 descending order, and then they pick automatically
18 in rank order of applicants for admission, do you?
19 A. No, we absolutely do not do that. We read every
20 file, we look at the transcripts, we don't just look
21 at the GPA, we look at the transcripts.
22 We evaluate the strength of the
23 academic record. We read the personal statement to
24 see what this person is telling us about their own
25 history, and their own life and their own
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140
1 achievements.
2 We read their resumes, information
3 about other activities they've been involved in. We
4 read their letters of recommendation, and we use all
5 of that information to assess the real strength and
6 real potential of the candidate, sort of no matter
7 what their LSAT and the GPA are.
8 And we are also always thinking about
9 what would this person add to the mix at the law
10 school. What would this person add to the class.
11 Q. It's fair to say though, that although they're
12 certainly not the only factors, LSAT scores and
13 undergraduate grade point averages are very
14 important in the admissions process, true?
15 A. Yes, they are very important. Assessing the quality
16 of their academic work and the person's potential to
17 excel in the study of law and at the practice of
18 law, are important parts of what we do.
19 Q. If I can just digress a little bit perhaps, and make
20 it clear why I do this later on. But there's a
21 footnote two to the policy, you see that on page
22 seven?
23 A. Yes.
24 Q. And this is a footnote to the statement that we read
25 earlier, a text states, we may think of the upper
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1 right portion of the grid as indicating combinations
2 of LSAT and grade point averages that characterized
3 the overwhelming bulk of students admitted.
4 And in the footnote drop down from
5 there it says, "The location of out of state
6 admittees as a group would, if plotted separately,
7 be higher and closer to the upper right corner, than
8 the location of all admittees since the group of
9 non-resident admittees is on the whole, somewhat
10 stronger on the plotted dimensions than the group of
11 resident admittees."
12 Is that footnote two, is that a
13 generally accurate statement about where resident
14 and non-resident admittees fall on the grid
15 generally speaking?
16 A. I have not looked at residents and non-residents
17 separately on a grid to really be able to confirm
18 that.
19 Q. Would it be a fair statement though, I assume you're
20 as knowledgeable as anyone about the general overall
21 academic credentials of your applicant pool,
22 correct?
23 A. Yes.
24 Q. Is it fair to say that on generally speaking, the
25 academic credential measured by LSAT scores and
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1 grades are generally higher for your non-resident
2 admittees, then for your resident admittees?
3 A. We have a lot more non-resident, non-Michigan
4 resident applicants to the law school then we have
5 resident applicants. So, the resident applicants is
6 sort of a smaller pool.
7 Q. But my question isn't about the size of the pool, my
8 question is about the level of the academic
9 credentials.
10 Is it true that generally speaking,
11 the academic credential, at least as measured by
12 LSAT scores and grade point averages, are generally
13 higher for non-resident applicant admittees, then
14 they are for resident admittees?
15 A. Resident applicants have LSAT scores and GPAs that
16 have the same sort of range as non-resident
17 applicants. So, there are some incredibly strong
18 Michigan residents who apply to the law school.
19 So, the range of their qualities, I
20 would say, is very similar, or the same as the
21 non-resident. But we have a higher volume of
22 non-resident applicants.
23 Q. Well, is it not true then on a whole the academic
24 credentials of the non-resident admittees are
25 somewhat stronger than those of the resident
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1 admittees?
2 A. I think that would depend on how many resident and
3 non-residents you were looking at in a given point
4 in time.
5 Q. Well, let's take all of them in one particular year.
6 All resident admittees compared to all non-resident
7 admittees, you generally expect to find that the
8 academic credentials of the non-resident admittees
9 are generally somewhat higher?
10 A. It would depend on the number in that particular
11 class. Each year I have a conversation with
12 Dean Lehman and I ask him, does he have a particular
13 goal in mind in terms of how many residents we want
14 to have in the entering class.
15 And if he said to me we only want
16 five percent or ten percent of our students to be
17 Michigan residents, then I think their academic
18 qualification and their LSAT scores would be as high
19 or higher on the whole. You know, compared to the
20 non-resident admittees.
21 Q. Well--
22 A. (Interposing) But he doesn't typically say he wants
23 five or ten percent, he typically wants closer to a
24 third. A quarter to a third of the class to be
25 Michigan residents.
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1 So, because of that, I think
2 sometimes if you look at the whole, there would be
3 residents who are admitted who might have lower LSAT
4 scores and perhaps lower GPAs, then some of the
5 non-resident admittees.
6 Q. And that's because of the desire to make sure that a
7 reasonable portion of the space in a class go to
8 residents of Michigan, correct?
9 A. That's correct. And it also is because of the pool
10 of applicants that we have.
11 Q. Do I understand that if the pool were smaller, that
12 is if the decision was to admit fewer residents from
13 Michigan, let's say, five percent as opposed to 30
14 percent, you would expect that the academic
15 credentials would be relatively closer between the
16 two groups?
17 A. Yes, I think that's probably true.
18 Q. Okay.
19 A. It would depend on what we call our pre-admit, which
20 is the work that we do to make sure that people are
21 flying to the law school. So it would depend on the
22 strength of the pool that we had to select from.
23 Q. And I think you kind of implied this, but let me
24 just ask it. I take it that residency is one of the
25 factors you will consider in making admission
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1 decisions?
2 A. Yes.
3 Q. Whether an applicant is a resident of Michigan or a
4 non-resident?
5 A. Yes.
6 Q. And that's something that can make a difference in
7 some cases?
8 A. That's right.
9 Q. And in some cases it will make no difference?
10 A. That's right.
11 Q. And I think the policy itself speaks to, I used the
12 term earlier, I'm not sure that I can find it. But
13 it speaks to a policy directive of ensuring
14 that--this is on page two actually of the policy.
15 "A reasonable proportion of our
16 placements should go to Michigan residents, even if
17 some have qualifications lower than those of some
18 applicants from outside Michigan."
19 I was reading from page two of the
20 policy there. Do you see that there?
21 A. Yes, I do.
22 Q. And that's a true statement?
23 A. Yes.
24 Q. And are residents of the state of Michigan regarded
25 to have sort of a special claim on consideration for
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1 admission to the law school?
2 A. I don't know if I understand that question.
3 Q. Well, then let me read from the policy, again on
4 page two, the very bottom. "The challenge is to
5 meet our goals while ensuring that all who enter can
6 succeed here in honoring the special claims of
7 Michigan residents to a Michigan Law School
8 education."
9 The policy contemplates that whatever
10 that means, residents of Michigan are recognized to
11 have some special claim, consideration of the
12 admission process, true?
13 A. Yes. As you read the sentence, the challenge is to
14 meet our goals, while ensuring that all who enter
15 can succeed here and honoring special claims of
16 Michigan residents to a Michigan Law School
17 education.
18 Q. And the policy speaks in terms of reasonable
19 proportion of residents, correct?
20 A. Yes.
21 Q. It does not give a target range?
22 A. That's right.
23 Q. Does it give a specific number?
24 A. No.
25 Q. And, in fact, I think you've alluded to this, you
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1 had a conversation with the dean each year to
2 ascertain what that reasonable proportion is going
3 to be?
4 A. That's right.
5 Q. But it always turn out to be some number or some
6 range, correct?
7 A. It's typically in my experience been a quarter to a
8 third of the class.
9 Q. And so just to be clear on this, you make enough
10 offer of admissions so you can expect to actually
11 enroll, that is get a yield rate of a quarter to,
12 you said 30 percent?
13 A. A quarter to a third.
14 Q. Did I explain that correctly, is that your process?
15 Maybe I confused myself on that one.
16 The number of quarter to a third,
17 your objective or your mandate is to make enough
18 offers of admission based on your enjoinment to end
19 up with a yield, that is actual enrollment of 25
20 percent to a third Michigan residents, correct?
21 A. Correct.
22 Q. And just like I've learned this language a little
23 bit as I try to learn so many things in this case.
24 Yield means as I understand it, percentages of
25 students that actually enrolled following an offer
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1 of admission, right?
2 A. That's right. When we refer to yield, we are
3 talking about our success in--people that we admit
4 to actually enroll at our Michigan Law School.
5 Most of the people that are admit to
6 admitted to several other, you know, very tremendous
7 law schools and they're in a position to choose.
8 So, we have worked very hard to
9 provide them with information about the University
10 of Michigan, to have them talk to our students, to
11 our faculty, so that they can make a choice.
12 And, of course, we try to show them
13 why we think the University of Michigan is a great
14 place to get a legal education.
15 So, when we talk about yield, we are
16 talking about that percentage of people who accept
17 our offers.
18 Q. And I think your point is well taken too. Your job
19 is not just making offers to admission, part of your
20 job is convincing applicants to come to Michigan,
21 because you are competing with other schools? You
22 have a lot of other schools competing with you?
23 A. We compete with a lot of other schools, yes.
24 Q. But that's part of your job?
25 A. That is a big part of my job, yes.
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1 Q. And just to kind of sum up about residency and how
2 that's factored into the process. I gather then
3 there's a fair amount of flexibility built into each
4 year of determining how many Michigan residents you
5 expect to enroll as part of the process, correct?
6 A. So you're asking?
7 Q. There's a flexibility in that based on your
8 conversations with the dean?
9 A. Yes.
10 Q. Does it change from year to year, I think you said
11 it's generally been 25 percent to a third.
12 Has that changed in any significant
13 way since you've been director?
14 A. In the three years that I have been the dean of
15 Admissions, that it has fallen within that range. A
16 quarter to a third.
17 Q. Now, we talked earlier about index scores and I want
18 to turn back to that a little bit again, and ask you
19 to turn to page eight of the Admissions Policy.
20 The policy certainly contemplates
21 that you're going to make some offers of admission
22 to students who are not in the upper right hand
23 corner, the far upper right hand corner of the grid,
24 is that correct?
25 A. That's correct.
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1 Q. And the policy itself actually, in general terms,
2 contemplates at least two scenarios, in which case
3 that's two general scenarios in which that's
4 approved, correct?
5 A. That's correct.
6 Q. And in reading from page eight again quoting from
7 the policy, "As we have noted, some students will
8 qualify for admission despite index scores that
9 place them relatively far from the upper right
10 corner of the grid. There are two principal types of
11 reasons for such admissions."
12 Am I correct, and I don't think that
13 I'm necessarily going to read verbatim from the
14 policy here.
15 But am I correct that the first of
16 those types of reasons generally is where you have
17 information in the file, in the applicant's file
18 which would lead you as the admissions decision
19 maker, to be somewhat skeptical about the predicted
20 value, say, at the end of the score?
21 A. That's correct. We read the files and we make out
22 own judgment about this person's, this applicant's
23 potential to excel at the study of law and as a
24 lawyer.
25 So, we don't just listen to the index
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1 score, we look beyond the LSAT score and the GPA.
2 Q. And if you, for example, see that's there's
3 something in the file that suggest a mediocre LSAT
4 score, it doesn't seem to be a great predictor for
5 this student, because he or she is high achieving
6 student, you might give some lesser weight to the
7 LSAT score in that case?
8 A. That's true, all though I don't give weight. I
9 don't use a formula and I don't view every file in
10 the same way. I really use my own judgment and my
11 own thinking to evaluate what I see in the file.
12 So, I read every file, I read
13 everything that the person tells us. The essays
14 that they submit and the recommendations that are
15 written on their behalf. To use my own judgment to
16 sort of interpret the numbers.
17 Q. That's the first principal reason though, where you
18 might depart from what the policy calls for the
19 general policy, taking applicants from the upper
20 right hand grid.
21 That is where something leads you to
22 be skeptical about predicted value of the index
23 score, right?
24 A. Where I can tell from the file where I have
25 confidence that this person is going to perform very
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1 well in law school, then I might admit somebody that
2 has a lower LSAT score, or perhaps even a lower GPA
3 then some of the other candidates.
4 Q. And then there's a second general policy, refers to
5 a second principal type of basis for granting
6 admission, even when index scores for that applicant
7 are relatively far from the upper right hand corner
8 of the grid.
9 And that second principal type of
10 reason has to do with achieving diversity, correct?
11 A. Yes. Now, you're reading from page nine at the
12 bottom of the paragraph of the policy?
13 Q. Yes. I didn't know I was reading from it. But,
14 yes.
15 A. It says, "The second sort of justification for
16 admitting student with indices relatively far from
17 the upper right corner, is that this may help
18 achieve that diversity which has the potential to
19 enrich everyone's education, and thus make a law
20 school class stronger than the sum of its parts.
21 Q. And you've read the policy, correct?
22 A. Yes.
23 Q. And among the different types of diversity that the
24 policy contemplates and values, am I correct that
25 there is a commitment to one particular type of
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1 diversity, and that's to racial and ethnic
2 diversity?
3 A. Yes.
4 Q. And if you can turn to page twelve. That's, in
5 fact, what the policy says, isn't it?
6 A. Yes. The first full paragraph on page twelve says,
7 "There is, however, a commitment to one particular
8 type of diversity that the school has long had and
9 which should continue.
10 This is a commitment to racial and
11 ethnic diversity with special reference to the
12 inclusion of students from groups which have been
13 historically discriminated against, like African
14 American, Hispanics and Native Americans, who
15 without this commitment might not be represented in
16 our student body in meaningful numbers.
17 These students are particularly
18 likely to have experiences and prospectives of
19 special importance to our mission."
20 Q. That's a statement of the policy?
21 A. Yes, I just read from the policy on page twelve.
22 MR. GOLDBLATT: If I could just put
23 on the record, I understand that the entire document
24 has been admitted into evidence.
25 I think that this calling of it is
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1 out of context and is leading. So, long as the
2 entire document is in the record, that would be
3 available.
4 THE COURT: The entire document is in
5 the record, yes.
6 MR. KOLBO: And I'm not just trying
7 to read the policy to see what it says, I want to
8 draw a connection, I want to make sure that I
9 understand not just what the policy says, but the
10 way things actually work and that's how I've been
11 asking the questions and I want to continue along
12 that line.
13 BY MR. KOLBO:
14 Q. Am I correct that you just read the policy with
15 respect to these commitment to diversity, racial
16 diversity or part of it here.
17 In making your admission decisions,
18 does the Admissions office, in fact, have a
19 commitment to ensuring racial and ethnic diversity
20 in the class?
21 A. Yes, my job is to carry out this policy, and that's
22 what I do. I read the files as I have described, I
23 read the personal statements. I look to see what
24 this person is telling me they might offer. I read
25 the recommendations, their resumes, information that
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1 they give us about their activities, their
2 experiences.
3 I look carefully at their academic
4 records. And I am constantly thinking about, sort
5 of constantly evaluating their potential to excel as
6 a law student.
7 And I'm constantly thinking about
8 what kind of contribution would this person make to
9 the intellectual life of the law school.
10 What would this person add to the
11 mix, is this going to be who would be engaged, who
12 would share their ideas with their fellow classmates
13 and with the faculty.
14 And we want to achieve a mix of
15 people with coming from a variety of backgrounds and
16 so forth. Including racial backgrounds that are
17 different.
18 Q. And I think you answered a lot of questions, but I
19 want to make sure that one question in particular
20 was answered.
21 That is, you as the Admissions
22 officer have a commitment to one particular type of
23 diversity, and that is to racial and ethnic
24 diversity, correct?
25 A. I carry this policy out and that's what the policy
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1 instructs me to do, that's correct.
2 Q. So the answer is yes to my question?
3 A. I think I gave my answer. Did I miss the question?
4 Q. Is it true that in the Admissions Office is there a
5 special reference to the inclusion of students from
6 groups which have been historically discriminated
7 against, like African Americans, Hispanics and
8 Native Americans, is that true, with respect to the
9 way the process actually operates?
10 A. The way the process operates is when I read files,
11 one of the things that I'm paying attention to is
12 any information the candidate has given me about him
13 or herself.
14 Including his or her racial identity,
15 background and so forth, experience. And so that's
16 one of the things that I'm paying attention to as
17 I'm reading the file.
18 Q. But my question is, are you committed in carrying
19 out the policy to ensuring that there is a special
20 reference to the inclusion of students from groups
21 which have been historically discriminated against,
22 like African Americans, Hispanics and Native
23 Americans, is the answer yes or no to that question?
24 A. When I read files I'm paying attention to the racial
25 identity if the person has chosen to give that to
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1 me. And that is one of the factors that I consider.
2 Q. That is inclusion of students from these groups that
3 I just mentioned?
4 A. Right. And other ethnicities.
5 Q. Are Puerto Ricans included within the group of
6 historically discriminated against minorities who
7 receive consideration in the process?
8 A. When I read files, I pay attention to whatever
9 ethnicity a person has told me about. If they tell
10 us that they are a member of a minority group,
11 that's one of the things that I'm paying attention
12 to.
13 Q. Do you understand that it's your charge within the
14 Admissions Office to make enough offers of admission
15 to applicants from historically discriminated
16 against underrepresented minority groups, to get
17 meaningful numbers of those students in the class,
18 is that part of your charge?
19 A. My goal is to make enough offers of admission in a
20 given season so that we can fill the class to the
21 level that Dean Lehman has set as a goal.
22 And to achieve a mix of people,
23 people from different backgrounds with different
24 experiences, coming from a variety of walks of life,
25 people who have different prospectives.
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1 And I pay attention to the mix of
2 ethnicities that we're achieving as I go along with
3 the process.
4 Q. Ms. Munzel, the policy, am I correct, the policy
5 calls for efforts to a commitment to enroll a
6 meaningful numbers of members of certain racial
7 groups, including African Americans, Hispanics and
8 Native Americans.
9 Do you, in fact, ensure that there
10 are efforts in the Admissions Office to enroll a
11 meaningful number of those groups?
12 A. Yes.
13 Q. The policy also speaks later on on page twelve to
14 enrollment of a--it speaks of enrollment of a
15 critical mass of minority students. You see that, I
16 think it's on the second full paragraph on page
17 twelve.
18 "By enrolling a critical mass of
19 minority students, we have ensured their ability to
20 make unique contributions to the character of the
21 Law School.
22 The policies embodied in this
23 document should ensure that the those contributions
24 continue in the future."
25 A. Yes.
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1 Q. Do you understand that it's your mandate as
2 Admissions officer to make admission decisions such
3 that you can ensure that you can that the Law School
4 will enroll a critical mass of minority students?
5 A. Yes.
6 Q. Do you understand that the term critical mass to
7 mean the same thing as meaningful numbers?
8 A. Yes. My understanding of critical mass is that we
9 want to have enough minority students in the law
10 school so that they're able to make contributions to
11 the life of the school, to the dialogue that's going
12 on. And if there are not enough, they could feel
13 completely isolated and unable to do that.
14 So, my understanding of critical mass
15 is that we need to have a meaningful representation
16 of minority students, so that they are able to make
17 the kind of contributions that we hope they can
18 make.
19 Q. Is there anyone who is more responsible or
20 knowledegable about you, more knowledgeable than you
21 about how the Law School goes about the actual
22 process of ensuring that a critical mass, or
23 meaningful numbers of minority students are enrolled
24 each year?
25 A. I turn to the faculty and to the dean to give me
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1 feedback about the quality of the class that we
2 enroll. The feedback that I get from them is that
3 they're very pleased with the mix of students, with
4 the level of engagement in the classroom, and the
5 variety of experiences that people are drawing in
6 the discussions in the classroom.
7 Q. But you're the one who is actually making the
8 decisions about how to go about enrolling students
9 such that you get a critical mass, or meaningful
10 numbers of minority students, correct?
11 A. Yes, I make the Admissions decisions, that's right.
12 Q. So, you may get feedback, but you're the one that's
13 actually implementing the policy?
14 A. That's right.
15 Q. And deciding how to go about obtaining and achieving
16 enrollment that constitutes a critical mass,
17 correct?
18 A. Right. It's my job to carry out the policy. Review
19 the applications, make the offers of admission and
20 then recruit the people that we have admitted.
21 Q. Now, you don't have a definition, do you, of the
22 term critical mass?
23 A. I told you what my understanding of that term is.
24 There is not a specific number, or there's not any
25 kind of definite percentage or target that equal
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1 critical mass.
2 Q. You were deposed in this case?
3 A. Yes.
4 Q. Wayne, could you show the witness a copy of her
5 deposition. I'm going to be reading from page 102
6 of the transcript.
7 You have it in front of you?
8 A. I'm getting to the page.
9 Q. Have you found it?
10 A. Yes.
11 Q. You were represented by counsel obviously at this
12 deposition?
13 A. Yes.
14 Q. I just want to read a series of questions and
15 answers, and ask you if these are accurately given.
16 "Q. What is--how would you define what
17 critical mass is of minority students?
18 A. I don't know that I have a particular
19 definition for that.
20 Q. Well, it is part of the policy, is it
21 not, in implementing this policy, how do
22 you make decisions about what a critical
23 mass is?
24 A. I don't know that in my capacity I have
25 to make a decision about what a critical
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1 mass is.
2 Q. And has there, as part of implementing
3 this policy which has been in effect
4 since 1992, has anyone within the
5 Admissions Office made a determination
6 about what constitutes a critical mass
7 Of minority students?
8 A. Not that I'm aware of.
9 Q. Has that ever been the subject of a
10 discussion, as far as you know?
11 A. Not that I'm aware of."
12 Did you give those answers to those
13 questions?
14 A. Yes.
15 Q. Are those true answers to those questions?
16 A. Yes. There is no particular definition in terms of
17 a number or a target. And what I said today is my
18 understanding of that concept.
19 Q. Is it fair to say that there must be some minimum
20 number of minority students that must be in enrolled
21 in order to achieve critical mass, or meaningful
22 numbers, there must be a minimum, right?
23 A. I think that the number of people that would
24 constitute critical mass, would vary depending on a
25 lot of other factors. So, I don't know that in the
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1 abstract you can pull a number out and say that this
2 would be critical mass and this wouldn't. It would
3 depend on a lot of other factors.
4 Q. There is a number, but you just don't know what it
5 might be?
6 A. I don't know that there is a number.
7 Q. Well, would one be enough in a class?
8 A. I would have to talk to the faculty, I think it
9 would depend on what the culture was like. It's a
10 little hard for me to imagine that one minority
11 student would constitute critical mass.
12 Q. And that's my point. There's some minimum, correct?
13 If there's some minimum, you don't know what it is?
14 A. I don't think you can--I don't think you can pick a
15 number out in an abstract way. I think it would
16 depend on the interaction in the classroom, it would
17 depend on the students, it would depend on a lot of
18 other factors that are not known to me at this
19 point.
20 Q. And then each year as you are going about deciding
21 how to assemble a critical mass, do you try to get
22 answers to those various questions you just
23 mentioned, so that you know how much is a critical
24 mass?
25 A. I rely on feedback that I get from the faculty and
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1 from the dean about their satisfaction and
2 excitement about the students that we have attracted
3 to the Law School. That we have admitted and
4 attracted to the Law School.
5 Q. Well, have you received any feedback about what the
6 minimum number might be that constitutes either
7 meaningful number or critical mass?
8 A. No.
9 Q. So, you have not made any effort to change the
10 number, whatever it might be from year to year, as
11 you make these admission decisions, correct?
12 A. I don't think about critical mass on a day-to-day
13 basis, it's not something that I'm focused on. I'm
14 focused on reading the files, evaluating the
15 candidate that we have in a given year, and making
16 those judgments on an individualized basis.
17 So, I'm not too focused on, gee, do I
18 have critical mass. It's not currently what I'm
19 thinking about.
20 Q. Isn't that part of your job?
21 A. My job is to carry out the policy and to make sure
22 that in the end we have achieved the goals of this
23 policy.
24 Q. But you're not making efforts to ascertain what a
25 critical mass is for a particular year, who is
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1 making that effort in the Law School?
2 A. If I were not achieving the goals as set forth in
3 this policy, I am sure that the dean would let me
4 know that.
5 Q. So, you might hear from faculty or the dean, that
6 whatever numbers were getting enrolled were
7 insufficient?
8 A. Correct.
9 Q. To constitute critical mass?
10 A. I think that if they were dissatisfied with how I
11 was carrying this out, they would let me know.
12 Q. And that has not happened in your tenure?
13 A. Correct.
14 Q. So, whatever it is that you're getting from year to
15 year, that at least constitutes critical mass,
16 correct?
17 A. Based on the feedback that I've gotten about the
18 classes that I've admitted, I believe that we have
19 achieved critical mass.
20 Q. But it could be something less than what you're
21 admitting, right?
22 A. I feel that we have achieved it because of the
23 feedback that I've gotten. Nobody has had a
24 discussion with me to say, you could have less, you
25 could have had more, you should have had less or you
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1 should have had more.
2 Q. But I guess that's my point. It could be that
3 you're enrolling well more than what would be
4 considered by the faculty or others to be a critical
5 mass, right?
6 A. I don't know if I can answer that.
7 Q. You wouldn't know, would you, unless they were to
8 complain to you, about whether or not you were
9 enrolling too few to be a critical mass?
10 A. Right. I would rely on getting feedback.
11 Q. I'm not going to ask you to buy into these numbers,
12 but I want to see if you can follow my point. Let's
13 say, for example, that you are enrolling a class of
14 year to year basis of, say, ten to twelve percent,
15 or ten to 13 percent underrepresented minority
16 students, and you're getting no feedback from the
17 faculty on that because they think that the critical
18 mass is something around five percent or so.
19 You wouldn't hear anything, would
20 you, from the faculty as long as you were between
21 ten and 13 percent, correct?
22 MR. GOLDBLATT: Your Honor, if I
23 could object, I mean I don't understand this
24 question. Are we asking whether the faculty would
25 give her feedback of enrollment as it existed. I
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1 just don't understand the question7
2 THE COURT: The issue is whether or
3 not the witness understands the question. Can you
4 repeat it?
5 MR. KOLBO: I can probably rephrase
6 it a little better.
7 BY MR. KOLBO:
8 Q. If you are, in fact, enrolling more on a year to
9 year basis than what the faculty would actually
10 consider necessary to be a critical mass of
11 students, you're not going to hear about it, are
12 you?
13 If you enroll something less than
14 that, as long as there's more than what the faculty
15 contemplates as critical mass?
16 A. I'm not sure, you have a lot of lesses and mores in
17 that question. I'm not sure.
18 THE COURT: Why don't you rephrase it
19 one more time.
20 BY MR. KOLBO:
21 Q. All you know, Ms. Munzel, is that you're currently
22 enrolling a critical mass of minority students
23 because you're not hearing complaints from the
24 faculty, right?
25 A. That's right.
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1 Q. You don't know, do you, how much less in terms of
2 how few or in terms of minority enrollment you could
3 make, that would still satisfy the faculty's concern
4 for minority admissions for critical mass, correct?
5 A. The faculty has not said that to me, that's correct.
6 Q. You just don't know how much lower enrollments might
7 actually be that would still constitute as far as
8 the faculty is concerned, the critical mass, true,
9 because you haven't heard anything like that?
10 A. I guess what I can say is that I have not heard
11 negative feedback about the mix of people and the
12 makeup of our class.
13 Q. Let me just ask a couple of more specifics. We
14 talked about one student, do you know one way or the
15 other whether minority enrollment, underrepresented
16 minority enrollment of five percent would be
17 sufficient to constitute critical mass at the
18 University of Michigan Law School?
19 A. There is not a specific number or target or
20 percentage that is defined as critical mass. And I
21 think I have tried to explain that I think it would
22 depend on a lot of different circumstances. So I
23 don't think I can answer that question.
24 Q. So, you can't rule it out though either, can you?
25 You can't rule out five percent perhaps as
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1 constituting critical mass, can you?
2 A. Not just throwing a number out. No, I can't.
3 Q. You can't rule out ten percent, can you?
4 A. I don't think I can--I don't think I can give any
5 percent that alone would constitute critical mass.
6 I think that it depends on a lot of other
7 circumstances and factors.
8 THE COURT: What are the other
9 factors and circumstances?
10 A. I think that would be largely up to the faculty, in
11 terms of what the environment in the classroom was.
12 The discussion of critical mass talks about--
13 THE COURT: (Interposing) So again
14 from the faculty you don't know what they are?
15 A. Pardon me?
16 THE COURT: That's not within your
17 expertise you would get from the faculty to give you
18 the feedback of what those were?
19 A. Yes.
20 THE COURT: Okay.
21 BY MR. KOLBO:
22 Q. And they haven't given you feedback to do anything
23 to suggest to change what critical mass is at the
24 Law School, correct?
25 A. Right, I have not gotten any negative feedback. I
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1 have gotten positive feedback that they are please
2 with the mix of students. So I believe that I have
3 achieved what the policy sets out.
4 Q. There was reference I think in Mr. Payton's opening
5 statement to a token of minority students. What
6 does a token represent of minority students?
7 A. Unfortunately I didn't get to hear Mr. Payton's
8 opening statement, I wish I could have. But I think
9 the word token typically means that it's just a
10 small, too small. It's just a one person, or a very
11 small number of people.
12 So, I mean, I think, in this context
13 you're not able to contribute because it's just a
14 token.
15 Q. So, critical mass is something more than a token,
16 true?
17 A. Yes.
18 Q. But you don't know how much more in terms of the
19 number of percentage or a range of students that
20 would be, correct?
21 A. There's not a specific number that I can give you
22 that would equal critical mass.
23 Q. Or a range of numbers?
24 A. Correct.
25 Q. Or a range of percentages of the class?
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1 A. Correct.
2 Q. Does each racial or ethnic group have its own
3 critical mass, or is it just in reference to the
4 aggregate underrepresented minority population?
5 A. I don't think of critical mass that specifically, I
6 don't think of it in terms of each specific group,
7 and I don't make decisions with this idea of
8 critical mass, you know, weighing on me all the
9 time.
10 I read the applications and look for
11 people that are going to contribute to the mix,
12 contribute to the dialogue. People who have
13 different experiences, people who come from
14 different racial backgrounds and I make those
15 selections.
16 When all is said and done and I look
17 to see how have we done, you know, in terms of who
18 we have admitted and whether they're coming to the
19 Law School, I believe that we have achieved critical
20 mass. You know, just consistent with the discussion
21 that we have just had, because of the feedback that
22 I get.
23 Q. Do you know whether it's possible to enroll a
24 critical mass of minority students if you don't have
25 members of a particular group in that critical mass?
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1 For example, can you have critical
2 mass of the law school if you don't have any members
3 from the Hispanic race?
4 A. The policy suggest that we want to have a critical
5 mass of minority students, and it specifically
6 mentions several ethnic minorities who have
7 historically been discriminated against.
8 I would work hard to make sure that
9 those ethnic groups are represented. But, I don't
10 feel that there's sort of a certain number of each
11 group that I have to achieve.
12 Q. So, you don't try to enroll a critical mass of
13 subgroups of different racial groups, correct?
14 A. No, I think of critical mass a little bit more
15 generally than that.
16 Q. Okay. Do you know what in the course of the last
17 couple of years, what percentage of underrepresented
18 minority students you have enrolled at the
19 Law School?
20 A. I have not looked at those statistics recently. I
21 think in this year's entering class, my recollection
22 is that we had about I think it was 25, 26 percent
23 minority students.
24 Q. Does that include Asian Americans?
25 A. I believe it does.
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1 Q. Do you know what the population was, the percentage
2 was of African Americans, Hispanics, Native
3 Americans and Puerto Ricans?
4 A. I would have to look at some statistics, because I
5 haven't memorized those numbers, I'm sorry. I'm not
6 even sure about the guess I just made about the
7 total minority enrollment. I would have to check
8 the numbers.
9 Q. Whatever those number are though, you've come to
10 conclude that they constitute critical mass?
11 A. Yes.
12 Q. Meaningful numbers of minority students?
13 A. Yes. Based on the feedback that I've gotten, that's
14 right.
15 Q. And whether they could be something less it could
16 still be meaningful and critical, you just don't
17 know, correct?
18 A. That's right. I would need to have information
19 feedback from the faculty to make that judgment.
20 Q. I think we covered this earlier. But would you
21 agree that undergraduate grade point averages and
22 LSAT scores are generally very important factors in
23 the Admissions decision making process?
24 A. Those are very important factors that we take into
25 consideration, absolutely.
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1 Q. Would you agree that the University of Michigan is
2 highly selective school?
3 A. We are fortunate to have an applicant pool from year
4 to year that is greater than the number of people
5 that we can admit. So that we are in a position to
6 be able to be selective within that pool.
7 Q. And would you agree that it's pretty well known
8 among law school applicants and faculty, that the
9 Michigan Law School is a highly selective law
10 school, is that pretty well known as far as you
11 know?
12 A. I think that it's fairly well-known that we have a
13 very strong reputation as one of the best law
14 schools in the country. And I think applicants
15 realize that, and then also realize that means that
16 we probably are selective in our admissions process.
17 Q. And would you agree that two of the criteria, at
18 least two of the criteria at which the law school is
19 highly selective in making admission decisions, are
20 the undergraduate grade point averages and the LSAT
21 scores of applicants?
22 A. Yes, the academic record which includes the
23 undergraduate GPA as well as private work that the
24 applicant may have done, and a person's performance
25 on the LSAT are important factors that we consider.
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1 If we're assessing an applicants potential to excel
2 at the Law School.
3 Q. And in the analysis that you do taking a look at
4 academic credential like the LSAT and the
5 undergraduate grade point averages, is it fair to
6 say that there is, first of all, there's sort of a
7 threshold that you look at.
8 You want to be certain that if the
9 credentials are established, at a minimum that an
10 applicant could succeed as a student at the
11 Law School?
12 A. Yes. That we want to make sure that we don't offer
13 admission, we try to avoid admitting somebody who we
14 believe would have difficulty succeeding
15 academically.
16 Q. That's kind of a minimum threshold, correct, because
17 you have a lot of applicants that meet that
18 threshold?
19 A. That's right. We have a lot of people who would be
20 qualified and who could perform the work.
21 Q. And certainly you don't admit every students who
22 meet that threshold?
23 A. That's right.
24 Q. So, being qualified for admission is not the same
25 thing as likely being granted admission?
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1 A. Right. There are many people who are qualified that
2 we are not able to offer admission to.
3 Q. Would you agree with me that the index scores, the
4 combinations of undergraduate grade point averages
5 and LSAT scores underrepresented racial minority
6 groups, African Americans, Hispanics, Native
7 Americans, are generally at least somewhat lower
8 than those of other racial groups, is that a true
9 statement?
10 A. In our applicant pool and it's my experience with
11 the various years that I've been doing this, so that
12 I have seen the statistics for our applicant pool.
13 I think it is true that if you look
14 at the whole applicant pool the average LSAT score
15 is lower for the minority groups you mentioned, then
16 for the average LSAT score of the Caucasian students
17 in our pool.
18 Q. And lower than Asian American students as well
19 generally?
20 A. I think generally Asian American students as a whole
21 in our pool have had an average LSAT score that's
22 comparable to the Caucasian students.
23 Q. And I think you were just referencing LSAT scores.
24 Is that same generalization true with respect to
25 undergraduate grade point averages?
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177
1 A. I would have to look at the statistics. I think
2 that probably is true, I'm not sure that it's as
3 much of a noticeable difference.
4 Q. We would see that in the Admissions statistics that
5 is maintained in the Law School data base, correct?
6 A. Well, that data is in the data base.
7 Q. We can compare the undergraduate grade point
8 averages of admitted members of certain minority
9 groups to admitted members of other racial groups
10 like Caucasians and Asian Americans?
11 A. Yes, you can pull that data out of the data base.
12 Q. Can I ask the witness to take a look at Exhibit 14,
13 please.
14 Can I ask you whether you recognize
15 Exhibit 14, a form of it at least? I think I can
16 represent what it is without any objection, but if
17 you can tell me it might help?
18 A. I don't know if I have seen this particular document
19 before, but it appears to be a chart showing
20 information about the mean and median undergraduate
21 GPA.
22 And the second page appears to be the
23 mean and median LSAT score for students who enter
24 the Law School apparently in 1994 and 1995. It
25 doesn't actually say the University of Michigan on
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178
1 it anywhere.
2 Q. Well, I can represent it's a document that we
3 received from the University of Michigan.
4 Do you participate in putting
5 together admission data like this, or I should say
6 admission data like this that sorts of show mean and
7 median and GPA and LSAT scores for applicants and
8 admitted students?
9 A. I don't believe I was involved in putting this
10 report together.
11 Q. Every year there's a meeting with the Committee of
12 Visitors. Do you participate in those meetings?
13 A. The Committee of Visitors happens once a year, and I
14 typically prepare it. Since I have been the Dean of
15 Admissions, I have prepared a report for the dean
16 which I believe he has included in the report to the
17 Committee of Visitors.
18 Q. And do you include information like that which is
19 pertained here on Exhibit 14?
20 A. I don't believe that I have given this kind of
21 information when I have done the report.
22 Q. You were in the Admissions Office in 1995, correct?
23 A. Yes.
24 Q. Do you remember at that time the Admissions Office
25 reporting this kind of data?
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1 A. Yes. Dean Shields would have done a report to the
2 dean for inclusion with the Committee of Visitors
3 report.
4 Q. And is it fair to say that, at least, what we have
5 in front of us here is just two years, I guess.
6 1995, the GPA data shows that there are generally
7 differences in the average GPAs of the different
8 racial groups with African Americans, Mexican
9 Americans, Puerto Rican Americans having somewhat
10 lower grade point averages than other racial groups
11 like Caucasians and Asian Americans, fair statement?
12 A. Yes. Fair statement that GPAs of the various ethnic
13 groups vary a little bit.
14 Q. And that they're lesser for those groups obviously
15 then Caucasians and Asian Americans, that's what the
16 document reflects, correct?
17 A. Yes.
18 Q. And I'm turning to the next page of the same
19 exhibit, this reports mean and median LSAT scores
20 for the same racial groups, correct?
21 A. Yes.
22 Q. And this kind of data kind of again confirms, at
23 least for this particular year I think statements
24 you made earlier, that LSAT scores of several of
25 these minority groups are generally lower than they
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1 are for other groups like Caucasian
2 A. Yes, in this particular group, yes.
3 Q.