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