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.




                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     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  3

            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                    THURSDAY, JANUARY 18TH, 2001

            25



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                                                                     2

             1             APPEARANCES:

             2

             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 Defendants.

            14

            15             COURT REPORTER:  Joan L. Morgan, CSR.

            16                               Official Court Reporter.

            17

            18

            19

            20

            21

            22

            23

            24

            25





                                     BENCH TRIAL - VOLUME 3
                                  THURSDAY, JANUARY 18TH, 2001


                                                                     3

             1                            I  N  D  E  X

             2

             3             WITNESS:                             PAGE:

             4

             5   KINLEY LARNTZ

             6  Cross-Examination by Ms. Massie                   4

             7

             8  MOTION FOR PARTIAL JUDGMENT

             9  By Mr. Payton                                    41

            10

            11  LEE BOLLINGER

            12  Direct Examination by Mr. Payton                 51

            13   Cross-Examination by Mr. Kolbo                  69

            14

            15  RICHARD LEMPERT

            16  Direct Examination by Mr. Goldbatt               88

            17  Cross-Examination by Mr. Purdy                  159

            18

            19

            20

            21                          E   X    H   I   B   I   T   S

            22

            23                                   MARKED   RECEIVED.

            24  Trial Exhibit Number 34                    142

            25   Trial Exhibit 32                          159








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             1                   Detroit, Michigan

             2                  Thursday, January 18th, 2001

             3                  (At or about 8:30 a.m.)

             4                        -- --- --

             5             THE COURT:  Good morning.

             6             MR. PAYTON:  Good morning, your Honor.

             7             MR. KOLBO:  Good morning.

             8             MS. MASSIE:  Good morning.

             9             THE COURT:  Okay.

            10             You may Cross-Examine the witness.

            11              K I N L E Y    L A R N T Z ,   P h. D. ,

            12  Having been previously called as a witness herein, and after

            13   having been first duly sworn to tell the truth, the whole

            14   truth and nothing but the truth was examined and testified as

            15   follows:

            16                    CROSS-EXAMINATION

            17  BY MS. MASSIE:

            18   Q    Good morning, Dr. Larntz.

            19   A    Good morning.

            20   Q    We had a chance to meet yesterday. My name is Miranda

            21  Massie, and I represent the student Intervenors in this as I

            22  think you already know.

            23   A    I understand.

            24   Q    I'm going to try hard not to reproduce too much of what

            25  happened yesterday, but I'm sure there will be a little of








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             1  overlap and I'll ask you to bear with me.  I'm going to try to

             2  keep it to a minimum.

             3   A    Thank you.

             4   Q    As I understand it, your premise in conducting your

             5  analysis was to look at the role of race in admissions

             6  controlling for credentials.

             7   A    Yes.

             8   Q    Is that true?

             9   A    Yes, with specific graduals of LSAT and GPA, yes.

            10   Q    In all of your analyzes the box plots, the grafts, the

            11  different odds ratios were based on undergrad grade and LSAT;

            12  is that right?

            13   A    I mean those were the basic data we controlled for, and

            14  certainly the box plot and the displays were of those variables

            15  specifically.  Some of the analysis involves other variables.

            16  Those are always there.

            17   Q    Michigan residency was one of the other variables --

            18   A    Michigan residency, gender, fee waiver.

            19   Q    But the basic analysis involved the undergrad grades and

            20  LSAT.

            21   A    That's correct.

            22   Q    Your analysis showed that LSAT difference by racial

            23  groups were greater than GPA differences; is that right?

            24   A    I think if you specifically look at the box plot there's

            25  more separation in the box plot for the LSAT than for GPA,








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             1  that's true.

             2   Q    And when you say there's more separation in the box plot

             3  is it not fair to say in lay terms that there's a bigger group

             4  difference?  Is that not --

             5   A    I was trying to say that's exactly -- there is.  There's

             6  a bigger group difference.

             7   Q    I'd like to look if I could mobilize George at Slide 28.

             8  What I'm going to ask you to do, Dr. Larntz, is to compare

             9  Slide 27 and Slide 28 from your presentation so we can see how

            10  the distribution of LSAT scores and grades by race is

            11  different.

            12             THE COURT:  Twenty-seven?

            13  BY MS. MASSIE:

            14   Q    Are you able to read that, sir?  Did I give --

            15   A    I can't read it, no.

            16             THE COURT:  I think there's a --

            17  BY MS. MASSIE:

            18   Q    Do you have Slide 27?

            19   A    Slide 27, I have it, yes.

            20   Q    Okay.  As you look at the two columns that have been

            21  highlighted it's true that there are more applicants who are

            22  black and more applicants who are white toward the top of those

            23  GPA scales; is that correct?

            24   A    Yes, that's correct.

            25   Q    If you could take a quick look at Slide 28.  I apologize.








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             1  I have to ask you to go back and forth a couple of times.

             2  There's a different pattern of distribution there; isn't there,

             3  in that the black students are more heavily concentrated in the

             4  lower end of the LSAT score when you keep their grades

             5  constant.

             6   A    Yes, that appears to be the case.

             7   Q    So in this range of GPA which was calculated by the law

             8  school Admissions counsel at 3.25 to 3.49 the white students

             9  are much heavily concentrated in the highest ranges of LSAT

            10  score, and the black students are much more concentrated in the

            11  lower ranges of LSAT score.

            12   A    That's certainly true.

            13   Q    In looking back now if you'll indulge me at slide 27,

            14  again, that's not true when you control for LSAT here,   I

            15  think we're looking at 161 to 163 on the LSAT the distribution

            16  of grades is roughly similar.  I'm not asking you to make

            17              detailed statistical judgment here, but it's

            18   roughly similar.

            19   A    Correct.  I agree, there's certainly much less separation

            20  in the grade distribution given the specific LSAT score, that's

            21  true.

            22   Q    And, in fact, regardless of the specific LSAT score and

            23  the aggregate whether you judge that by the median or the

            24  distribution the grades are a lot closer. There's still

            25  differences, but they're much closer than the LSAT scores;








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             1  right?

             2   A    Well, they're closer -- I mean, much closer is a relative

             3  term.  I'm not sure how to describe it.  But they're certainly

             4  closer.

             5   Q    Fair enough.

             6             By the way, Dr. Larntz, the Asian Pacific Americans,

             7   the Asian American applicants had lower median LSAT scores and

             8   undergraduate grades; isn't that true?

             9   A    The applicants or the accepted applicants?

            10   Q    The applicants.

            11   A    The applicants, I'd have to go back and look at the

            12  specific -- lower than -- what group?

            13   Q    Than the white applicants.

            14   A    Than white applicants?  You're talking about the LSAT

            15  score?

            16   Q    I'm talking about both undergraduate grade and LSAT

            17  scores.

            18   A    I think there was -- my recollection, I can go back and

            19  look at the table is they were slightly lower, yes.

            20   Q    And you mentioned yesterday you looked at some of the

            21  application files.

            22   A    A few, yes.

            23   Q    Who were the students, not by name which I understand you

            24  didn't know, but were they rejected white students or were they

            25  accepted minority students?








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             1   A    I think I looked at -- you know, we're not talking about

             2  hundreds, we're talking about a small handful of both.  I mean,

             3  I looked -- I certainly -- and it's been some time, I haven't

             4  looked at them very recently. But I did look at some

             5  application files of rejected.  And I don't remember if they

             6  were white or Asian students, applicates, and accepted minority

             7  applicants, yes.

             8   Q    And why did you look at those?

             9   A    Why did I look at those?

            10   Q    Yes.

            11   A    To get an idea of what the files looked like.  I think it

            12  was useful to look at what the raw data are that the law school

            13  summarized -- where it came from.

            14   Q    But looking at the files didn't change your statistical

            15  analysis at all.

            16   A    Well, most of my analysis was done by the time those

            17  files were available to look at.

            18             So I didn't find information in those files that I

            19   could use quantitatively to change my -- that would change my

            20   analysis, that's correct.

            21   Q    Did you find information that raised any questions for

            22  you about your analysis?

            23   A    Raised questions?

            24   Q    Yes.

            25   A    No.








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             1   Q    And that's because your analysis is focused on the

             2  question of the role of race, controlling for numerical

             3  credentials; right?

             4   A    That's exactly what we're doing, yes.

             5   Q    And that's why looking at the files didn't change your

             6  view?

             7   A    I mean, if there had been quantitative information that I

             8  could found in the files, a variable that I would then have in

             9  the data base then I could have used that.  I didn't find such

            10  a quantitative information that would be available to me across

            11  all applicants.

            12   Q    Okay.  The group differences in both grades and LSAT

            13  scores that were part of your findings, are greater among the

            14  applicants as a whole than they are among the accepted

            15  applicants; isn't that true?

            16   A    I believe that's true, yes.

            17   Q    So in other words, the admissions process at the law

            18  school reduces the size of the gap in both LSAT scores and

            19  grades by race.

            20   A    That's true, yes.

            21   Q    And results if you look at the selected admitted

            22  under-represented minority students, the Black, Latinos, the

            23  Asian American students, it results in the selection of a group

            24  of minority students who have relatively higher grades, higher

            25  grades relative to white students.








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             1   A    I don't understand the comparison you're asking me to

             2  do.

             3   Q    The pool of people who -- the pool that consists of all

             4  of those who apply --

             5   A    Yes.

             6   Q    -- is reduced through the application process --

             7   A    I understand that.

             8   Q    I'm not -- definitely suggesting that you don't.  I'm not

             9  sure that I'm being clear.  And a bunch of people are

            10  rejected.

            11   A    Quite a few.

            12   Q    And what you end up with in -- if you're comparing the

            13  group by race in terms of numerical credentials is less of a

            14  spread, less of a gap.

            15   A    There's still a gap, but the gap isn't as large as the

            16  applicants who presented themselves to the law school for

            17  admission, that's true.  The accepted applicants have a

            18  somewhat smaller gap in numerical terms compared to the group

            19  of applicants presented as a whole.  Okay, but I think I've

            20  answered, and that's true.

            21   Q    So the admission process results in a selection of

            22  minority students who relatively speaking have higher numerical

            23  credentials than the applicant pool.

            24   A    I guess I've never made the comparison to the entire --

            25  if I understand what you're asking me to do, are the minority








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             1  students who are accepted higher than the entire applicant pool

             2  as a whole.

             3   Q    I'm sorry, then that's definitely not what I'm saying.

             4   A    Okay.

             5   Q    The gap is reduced.

             6   A    It would -- well, I guess I should let you ask the

             7  question.

             8   Q    The gap is reduced.

             9   A    Yes.

            10   Q    You haven't previously testified as an expert or worked

            11  as a consultant as I understand it on admissions in higher

            12  ed.

            13   A    That's correct.

            14   Q    Or on any question involving race and higher

            15  education.

            16   A    Race and higher education?

            17   Q    Yes.

            18   A    I'm trying to recall the issues.  I have testified in

            19  cases involving higher education hiring.  And I -- no, I don't

            20  believe then -- I'm sorry, I'm just trying to recall.

            21             I believe that particular case involved gender

            22   equity and did not involve -- it did not involve race issue.

            23   So, I have not.  Sorry.

            24   Q    And you don't have any expertise on standardized testing

            25  issues.








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             1   A    Expertise on standardized testing issues in what

             2  sense?

             3   Q    You haven't made a study of standardized testing.

             4   A    I've never made a study myself of standardized testing,

             5  that's true.

             6   Q    Do you consider yourself to have any expertise in the

             7  area of bias, racial bias in standardized testing?

             8   A    That's not an area I've studied.

             9   Q    Do you consider yourself to have any expertise in the

            10  area of educational sociology?

            11   A    Educational sociology --

            12   Q    Well --

            13   A    I assume -- well, let me just say it since I probably

            14  don't understand what the term means, I probably don't have any

            15  expertise.

            16   Q    Do you have any expertise in your view on the role of

            17  hostile environment or racism on academic performance?

            18   A    I have certainly read materials on that, but that's not

            19  my -- I've read it as a lay person, not as -- have no level of

            20  expertise in that.

            21   Q    So you're not an expert on that?

            22   A    I'm not an expert on that, that's true.

            23   Q    And in analyzing the data for this case, you didn't rely

            24  on anybody else's expertise in those areas; true?

            25   A    I'll just say, yes, since I didn't rely on anybody








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             1  else.

             2   Q    And you weren't asked to.

             3   A    Look at --

             4   Q    The attorneys didn't ask you to rely on anybody else's

             5  expertise or to carry out any studies of your own on testing or

             6  grades and the environmental impact?

             7   A    No.

             8   Q    I know you know where I'm going, but --

             9   A    I'm not --

            10   Q    People talk over each other all the time.

            11   A    I'm sorry.

            12   Q    It's hard when you look at the transcript later.

            13             The role of the environment  -- the

            14   environmental impact impacted by racism on grades or tests or

            15   anything like that, you weren't asked to look at any of that;

            16   is that true?

            17   A    That's true.

            18   Q    I'm going to ask you this way of conceptualizing the

            19  cause of the odds ratios, the magnitude of the odds ratios

            20  that you calculated seems true to you, and that is this:

            21  That there are essentially three necessary components to the

            22  magnitude of those ratios.  And tell me if this is wrong after

            23  I list them.  First, there's the important of the LSAT and the

            24  GPA in determining admissions decisions.  Second, there's the

            25  uneven distribution by a race of applicants within the grid








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             1  that has LSAT scores on one axis and GPA on the other.  And

             2  then, third, there's allowance that you talked about

             3  yesterday which is to say the  decision to admit some

             4  relatively substantial number of black and other minority

             5  students.  So in other words the three components:

             6  First, importance of LSAT and GPA.  Second, uneven

             7  distribution on the numerical within the grid that

             8  summarizes the numerical criteria.  And, third, to look

             9  at it either way it seems to me the allowance, to use your

            10  term that the University makes, which is to say the

            11  decision to admit more than token number of minority

            12  students.  Are those the three necessary and sufficient

            13  components that gives you the odds ratios that you ended up

            14  calculating?

            15   A    Before I give my answer, I'm saying "necessary" and

            16  "sufficient" are mathematic terms, very precise ones.

            17  You have to be very careful.  But I -- let me say that the

            18  three components -- you correct me if I've got them wrong,

            19  okay -- are -- Number one is unequal distribution -- the

            20  fact that there's -- admission is based on the LSAT and

            21  GPA?

            22   Q    Right.

            23   A    Okay.  Number two, is the distribution -- distributional

            24  differences of those quantities.

            25   Q    Correct.








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             1   A    And number three is the decisions made, the allowance

             2  made for those individual cells.

             3             My analysis doesn't depend on -- doesn't actually

             4   depend on the -- if we want to be in a real sense -- it

             5   doesn't depend on LSAT and GPA being a big factor.

             6             It accounts for whatever it is.  It could be a

             7   big factor.  It could be a small factor.  So that doesn't

             8   matter except that it is obviously a big factor.  So that

             9   we take out that effect whatever that is so the analysis

            10   takes out that effect because we're looking at each cell

            11   separately.

            12             So it could be not as big effect or small effect,

            13   and we can still do the same analysis.

            14   Q    I understand.  Can I stop you because I think I haven't

            15  been clear.

            16   A    Okay.

            17   Q    I'm not asking you whether you could do the same

            18  analysis.  I'm asking you whether the results you got are a

            19  consequence of these three --

            20   A    And I'm trying to answer that question.

            21   Q    I'm sorry.  Please proceed.

            22   A    And so thus -- so, thus, the results I get don't depend

            23  on that characteristic.

            24             THE COURT:  That characteristic being the GPA,

            25   LSAT?








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             1             THE WITNESS:  It depends on the fact that we're

             2   looking at individual cells.  But it doesn't depend on the

             3   fact that there's a particular pattern of acceptance in GPA

             4   and LSAT which is what I understood was the premise.

             5   A    So it doesn't depend on that, per se.

             6             And, again, because we're looking at the

             7   individual cell, and we're comparing individual applicants

             8   that have the same credentials, it doesn't depend on -- to

             9   the second point, the distribution of those credentials,

            10   we're looking specifically at what those credentials are in

            11   a particular cell and how an individual in those particular

            12   cells. So the analysis actually doesn't depend on the

            13   distribution which I think is your second point of

            14   credentials.

            15  BY MS. MASSIE:

            16   Q    Yes.

            17   A    The analysis particularly depends on what happens to

            18  individual applicants in the same category of LSAT and GPA.

            19  And that's what -- I think the third item you said, the

            20  allowance that's made.  And that what it specifically

            21  reports is the degree of allowance given in those

            22  individual cells.  And so that's what it specifically

            23  depends on.

            24             So it could be -- it would be if, in fact, there

            25   were other distributions either -- in how the University took








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             1   account of those of values or how the applicants are rated it

             2   wouldn't depend on that.  It would depend on the specific,

             3   what happened to those specific cells.

             4   Q    Okay.  And you're talking by the cell-by-cell odds ratio

             5  now.

             6   A    Well, I'm talking about the grids, what happens in the

             7  grids.

             8   Q    But the overall odds ratio --

             9   A    Is the combination of what happens in the individual

            10  grid, cell-by-cell.

            11   Q    If the -- you would get different numbers if people were

            12  distributed differently by race within that grid; true?  Your

            13  odds ratios would be different.  All other things being equal,

            14  your odds ratios would be different if people were distributed

            15  -- let's say if it was distributed proportionately by race

            16  within all the different squares in the grid, you would get an

            17  odds ratio of one; true?

            18   A    There's two things going on here.  What you just said

            19  certainly is not true in the sense of distributing.

            20   Q    Why not?

            21   A    What I was trying -- what I want to explain is you've got

            22  three or four things changing at once.  So let me just change

            23  one thing if I might.

            24   Q    All right.

            25   A    Okay.  If, in fact, if, in fact, the distribution changed








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             1  of minority students in the cells in the sense that there were

             2  more applicants, if there were more applicants in other cells

             3  than we have, so the distribution changes.  So they're in some

             4  cells -- well, yesterday we had a cell where there were eight

             5  minority applicants and four were admitted, okay?  If we change

             6  that to -- if we want to do that proportionately -- I think

             7  this is what -- I would want to do it proportionately, you had

             8  sixteen applicants and eight were admitted.  It's exactly the

             9  same proportions.

            10             But we move the distribution around, that is, there

            11   are more minority applicants in the various cells, okay, then

            12   the odds ratios for each of those cells, the odds ratios for

            13   each of those cells would remain identical to what they are

            14   now.  Identical.  They wouldn't change whatsoever.

            15             So -- if, in fact, the decisions were still made in

            16   the same way, but there are more minority applicants in

            17   certain cells, but the actual admitted and accepted ratios

            18   stayed the same in a cell, then the odds ratios for those

            19   cells stay exactly the same.

            20             That's mathematics.  You can calculate them.  They

            21   stay exactly the same.

            22   Q    Okay.  My question was this:  If you were to just take

            23  the grid overall and distribute -- let's take black students

            24  and white students for the time being.  Black students and

            25  white students in a proportionate way so that you wouldn't have








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             1  what we just looked at in Slide 27.  So that if one percent of

             2  the white students were in that, you know, top upper right-hand

             3  corner cell, one percent of the black students were there, too

             4  --

             5   A    Sure.

             6   Q    And so on.

             7   A    Sure.

             8   Q    You would end up -- all other things being equal --

             9  admissions decisions being made the same way as far as LSAT and

            10  GPA go with an odds ratio of one; correct?

            11   A    If I -- I still -- I don't think we're -- I'm not

            12  communicating well enough for you to understand that, in fact,

            13  if the decisions are made in the same way, which means the same

            14  proportion of black students are admitted as in the grid cells

            15  now, if that doesn't change, but there are more -- you say

            16  equal numbers of white students and black students in those

            17  cells, but the decisions made in those cells -- the decision

            18  made in those cells are proportional to what they are now then

            19  the odds ratio would stay the same that they are now.

            20             If the -- the way they would get to be one, the way

            21   they would get to be one is if we had -- if the admission

            22   rates were the same for white students and black students in

            23   the individual cells, so if the admission rates were the same

            24   -- so, for instance, in the cell we talked about with respect

            25   to minority students, suppose there were a hundred minority








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                                                                     21

             1   students in that cell, and fifty were admitted, that would be

             2   an admission rate of fifty percent.

             3   Q    Sure.

             4   A    If there were a hundred black students -- I mean, white

             5  students in that cell, so a hundred minority students and a

             6  hundred majority students then in order to get an odds ratio of

             7  one, they would also have to have to have an admissions rate of

             8  fifty.  That would be an odds ratio of one.

             9             So if the admission rates are the same in a cell,

            10   admission rates are the same in the cell, then you have an

            11   odds ratio of one.

            12             So -- if we had that throughout the entire grid then

            13   the overall odds ratio would be one.

            14   Q    Right.  So what I'm saying is -- and this is back to the

            15  three components is the disproportionate -- let's say the

            16  uneven distribution in the grid and the allowance work in a

            17  lockstaff (ph); right?

            18   A    What I just said is what it depends on is the admissions

            19  decisions made in the cell which is the allowance.   And the

            20  odds ratio doesn't depend on the unequal distribution.  It

            21  depends on what happens in the individual cells.  So if, in

            22  fact, in the individual cells there are equal admission rates,

            23  that's an odd ratio of one. It doesn't matter where they are,

            24  or what the distribution is.  The odds ratios are computed from

            25  what happens in the individual cells without regard to the








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                                                                     22

             1  distribution of the minority and majority students in those

             2  cells.

             3   Q    Dr. Larntz, what's going on in an individual cell depends

             4  on the distribution; right, because the distribution is

             5  precisely whose in what cell.

             6   A    What happens in each cell depends on the decisions made

             7  in that cell.  And the decision, the admission rate decisions

             8  in that cell are what drive the odds ratio.

             9             So what happens is the admissions decision in that

            10   cell and those admissions decisions are what determine the

            11   odds ratios.

            12             THE COURT:  The bottom number.

            13             THE WITNESS:  The relative number.  So if it's four

            14   out of eight, and if it were fifty out of a hundred, that

            15   would be an odds ratio of one.

            16             THE COURT:  And the bottom number in your cell.

            17             THE WITNESS:  Right.

            18             THE COURT:  Which is the University's decision.  The

            19   odds --

            20             THE WITNESS:  That's the allowance.

            21             THE COURT:  When I say the "bottom number" I'm

            22   looking at the cell.

            23             THE WITNESS:  Exactly.  That depends on the relevant

            24   size of the bottom number to the number above.

            25             THE COURT:  The bottom number is the University's








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                                                                     23

             1   decision.

             2             THE WITNESS:  That's correct.  That's correct.

             3  BY MS. MASSIE:

             4   Q    It's the bottom number in relation to the number of

             5  applicants of a given race in that cell.

             6   A    Of course.  It's a proportion, the proportion admitted in

             7  that cell by the University.

             8             If the proportions admitted are the same then we

             9   have an odds ratio of one.  The same for minority and

            10   majority, we have a odds ratio of one.

            11   Q    Thank you.

            12             Now, what would the law school have to do to avoid

            13   those infinities if -- let's say the applicant pool doesn't

            14   change at all.  What would they have to do to avoid those

            15   cells where they find there's an infinite odds ratio?

            16   A    What would they have to do?  I mean, the infinite odds

            17  ratio -- I mean, from my point of view the infinite one just

            18  indicates there's a big number there.  You know, in the sense

            19  there may be a large allowance there.

            20             But, two things:  Actually -- we would not get to

            21   infinity if -- the case we get infinity are two.  Number one,

            22   where a hundred percent of minority applicants are accepted,

            23   or where we have zero percent of majority applicants accepted.

            24   Either of those cases we get an infinity.

            25             And so, if it were important and I don't think it is








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                                                                     24

             1   important to eliminate those because -- if they're small

             2   numbers and those numbers don't matter in a statistical sense,

             3   but if they're important for someone to eliminate those, if it

             4   were, then you'd have to have less than a hundred percent

             5   admission of minorities or combined with a greater than zero

             6   percent admission of majority students.

             7   Q    Not combined with it, it's an alternative; right?

             8   A    No, it actually -- actually to get -- as it was talked

             9  about yesterday a calculated number, to get a calculated

            10  number, you would have to have both -- for both minority and

            11  majority, you'd have to have some admitted and some denied to

            12  get a calculated number, a number other than zero or infinity

            13  to get to -- in order to get -- to avoid infinity, you would

            14  have to have some admitted and some denied --

            15   Q    Some minority students admitted --

            16   A    And some -- and then some denied.  And then some majority

            17  students admitted and some denied if that were an important --

            18  if that were important.

            19   Q    I see.  So -- in the cells where you have one to two, or

            20  one Native American or black applicant with top LSAT scores and

            21  top grades, you would have to reject one of those two people to

            22  avoid having an infinite odds ratio; is that correct?

            23   A    In order to avoid seeing -- as I say, if that were

            24  important to you not see that -- I don't think -- to me that is

            25  of no consequence statistically.   And I certainly -- I'm








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                                                                     25

             1  telling you how to mathematically generate a calculated number

             2  there as oppose to having an infinity.  And that's how I would

             3  do it.  That's how it would have to be.

             4   Q    Do you think there's anything misleading about saying

             5  that an odds ratio is infinite in a square where there are two

             6  black applicants both of whom get accepted?

             7   A    Do I think it's misleading?  I think I said that I don't

             8  that I don't believe that real odds ratio is infinity.  I don't

             9  believe any of these are infinity.  I think it's the observed

            10  values infinity.  That's just a number in my estimation or

            11  maybe not a number if you're a real mathematician talking in

            12  mathematical terms, but it just describes the information in

            13  the cell.  And that's all it does.

            14   Q    Infinity is it an imaginary number or an irrational, I

            15  always forget.

            16   A    You'll have to call a mathematical expert.

            17   Q    Okay.  You knew, Dr. Larntz, that a smaller percentage of

            18  minority applicants than white applicants were accepted by the

            19  law school; right?

            20   A    I think we went through that yesterday.  That seems to be

            21  the case, yes.

            22   Q    And you knew that at the same time that you were making

            23  your calculations you were aware of that; true?

            24   A    I was aware of that?  Yes, I had -- I looked at the

            25  original grid and that was -- we could see that in at least the








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             1  original Exhibit 16, yes.

             2   Q    So, yes, you knew that a larger percentage of minority

             3  applicants was accepted.

             4   A    Yes.

             5   Q    I just want to make sure that we're clear.

             6             And you know that there's a relatively small number

             7   of Black, Latino and Native American students accepted.

             8   A    A relatively small number, you mean in terms of numerical

             9  values.

            10   Q    Yes.

            11   A    The number accepted is the number accepted.  I don't know

            12  if that's relatively small or not.  It's not as many as there

            13  are Caucasian students admitted for instance.

            14   Q    It's small proportion.  It's a relatively small

            15  proportion.

            16   A    Certainly -- the number of applicants is smaller and the

            17  number admitted is smaller.

            18   Q    And that difference grows.  It's smaller by a greater

            19  degree. The number accepted -- the number of minority students

            20  accepted is smaller by a greater degree than the number of

            21  minority students who apply is.

            22             The proportion -- let's take two numbers.  You've

            23   got the people who applied, and the people who are accepted.

            24   The proportion of minority students in the group of people who

            25   applied is bigger than the proportion of minority students in








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                                                                     27

             1   the group of people who are accepted.

             2   A    Given that there's at least a slightly smaller rate,

             3  there is smaller rate of acceptance, that would be true.

             4   Q    And I think you said a couple of times yesterday that

             5  these were among the biggest odds ratios that you had ever

             6  seen.

             7   A    The odds ratio, oh, absolutely, absolutely.

             8   Q    Did it ever occur to you that there was a disconnect

             9  between the results that you were getting and the reality of

            10  the admissions process?

            11             MR. KOLBO:  Object to form, your Honor.

            12             THE COURT:  Why don't you rephrase it?

            13  BY MS. MASSIE:

            14   Q    Did it ever occur to you given what you knew about rates

            15  of admittance, given what you knew about the overall number of

            16  minority students who applied, given the things we've just been

            17  through, and given the values, the magnitude of the odds ratios

            18  your analysis produced, did it ever occur to you that there was

            19  something wrong with your motive analysis?

            20   A    Absolutely not because this happens often in statistical

            21  analysis that because difference in marginal distributions you

            22  wind with up -- what you control for important factors in the

            23  admission decision.  What you control for important factors in

            24  admission decision, your studying the effect in those

            25  individual cells. And that effect in those individual cells








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                                                                     28

             1  won't necessarily produce a particular bottom line percentage

             2  or another.  So there is no disconnect -- sorry to rephrase

             3  your original, there is no -- there's wrong with it at all.  In

             4  any statistical sense this is not an unusual happening in

             5  statistical analysis once you control for other important

             6  factors.

             7   Q    This is not an unusual happening. What's the "this"?

             8   A    This, what you just said that we have a -- I'll call it

             9  an overall rate that may be smaller in one direction but

            10  considerable preference might be given or odds ratio in favor

            11  of the events that has the small overall rate.  That in a

            12  statistical sense is something that depends on what happens in

            13  the individual cells.  And in the individual cells it's clear

            14  that a large allowance is made in the admissions process for

            15  students -- for minority students compared to majority students

            16  that have the same LSAT and GPA credentials.

            17   Q    In light of the magnitude, the odds ratios that you found

            18  to obtain and in light of the other information we've talked

            19  about, did it occur to you at some point that the model wasn't

            20  useful?

            21   A    I think this model is quite useful.  That certainly never

            22  occurred to me, no.

            23   Q    That did not occur to you.

            24   A    No.

            25   Q    Did it occur to you at any point that there was something








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             1  behind the face of the data, something behind the LSAT scores

             2  and the undergrad grades that you ought to look into more?

             3   A    The LSAT and the GPA were the specified criteria the law

             4  school used in its admissions process, and I used those

             5  criteria.  Something behind those?  I don't that was -- I was

             6  trying to model -- right term -- look at, understand, describe

             7  the law school's decisions based on those credentials, and

             8  that's what I did. And I didn't look at anything behind those.

             9  "Those" being the grades and the LSAT's.

            10   Q    And you don't know what the source of the group

            11  difference is; right?

            12   A    No.

            13   Q    In the numerical criteria.

            14   A    Source of the group differences in GPA's and LSAT's?

            15   Q    Correct.

            16   A    No.

            17   Q    And you don't know whatever that source is whether it's

            18  fair or reasonable.

            19   A    No, I don't know.

            20   Q    And you don't have any reason for believing that those

            21  numbers mean something constant across different ratio

            22  categories; correct?

            23   A    I'm sorry, I lost the question.

            24   Q    You don't have any basis for thinking that the meaning of

            25  a GPA or the meaning of an LSAT score, whatever that meaning








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             1  is, could be, you know, something very solid or less solid, but

             2  that that meaning is constant across different racial

             3  categories.

             4   A    I don't have any knowledge about that, no.

             5   Q    And the unevenness of the distribution didn't make you

             6  wonder?

             7   A    Didn't make me wonder about that?  No.

             8   Q    So you didn't wonder about either the data or the model

             9  at any point.

            10   A    I think that's a much simplified view of what I did.  I

            11  certainly worried about the data.  And I worried very much

            12  about the data, and I cared a lot of about -- describing the

            13  admissions decisions based on the credentials that were

            14  presented, the LSAT, the GPA, and I did that.  And the model I

            15  did was as general a model I could get with as few assumptions

            16  that I could make to describe that process.  And I think you

            17  did a good job describing that process.

            18   Q    If you really wanted to get at the role of race in the

            19  admissions decisions wouldn't you have to know what the odds

            20  were of getting a certain LSAT score by race?

            21   A    That's not the way the Admissions Office was working in

            22  the sense that they look at given scores and made admissions

            23  decisions.  And what I was modeling was the admissions

            24  decision.  So I modeled the admissions decisions given the

            25  presented LSAT score and GPA.








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             1   Q    Yes.

             2   A    And if you -- well, that's what I did.

             3   Q    But you are looking at the role of race in admissions;

             4  right?

             5   A    I think I -- that's what I said, yes.

             6   Q    Okay. And to know what the role of race in admissions is

             7  -- go ahead.

             8   A    I was going to say, in admissions decisions.  In the

             9  admit or deny decisions that are made, that's right, as

            10  described -- I'm analyzing the data of the decisions made by

            11  the Admissions Office.

            12   Q    And your basis for knowing how decisions of made was the

            13  policy that you mentioned yesterday.

            14   A    Certainly I read that.

            15   Q    And the data base.

            16   A    And the data base was what I considered most informative

            17  because it isn't always true that -- should I say -- not

            18  everyone follows every policy that exists at a university.

            19             So I used the data itself to inform me about the

            20   nature of the decision made.

            21   Q    And the distribution differences by race didn't trouble

            22  you when came up with those odds ratios at the end of your

            23  analysis?

            24             MR. KOLBO:  Objection.  Asked and answered, your

            25   Honor.








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             1             THE COURT:  It's already been asked and answered,

             2   but you can do it one more time.

             3   A    It didn't trouble me, no.

             4  BY MS. MASSIE:

             5   Q    You do work in medical statistics if I understood you

             6  yesterday?

             7   A    I do work in a variety of areas and I do work in medical

             8  statistics, yes.

             9   Q    I want to give you a hypothetical because I want to

            10  understand how -- what kinds of things would make a

            11  statistician reconsider a model or try to look beyond the face,

            12  the facial values of data used in a model in the presence of

            13  odd results, let's say.

            14             Let's say you're looking at two hospitals.  Let's

            15   say they're in different neighborhood.  One's in a more

            16   affluent neighborhood and one's in a more poorer neighborhood,

            17   and you're testing the effectiveness of a drug.  You've been

            18   asked to test the effectiveness of the drug, what are the cure

            19   rates essentially.

            20             And let's say in the hospital that's in the poorer

            21   neighborhood you get a cure rate of sixty percent, and in the

            22   hospital that's in the more affluent neighborhood you have a

            23   recovery rate of ninety percent with whatever drug or therapy

            24   we're talking about.

            25             Wouldn't you want to look behind those numbers to








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             1   find out if the poorer hospital was built on a toxic dump or

             2   if there were environmental poisons that were impeding the

             3   rate of cure, of it there were other environmental factors

             4   that were creating what I think would be a pretty big odds

             5   ratio in that case between sixty percent and ninety percent?

             6   A    I understand your hypothetical example, and if I could

             7  just carry it the way we actually do it, would that be all

             8  right?  In looking like data like that we typically would have

             9  for a new drug the new drug and the old drug used in both

            10  hospitals.  That's how we do a study.

            11             If we did that then, in fact, we would know very

            12   strongly that hospital cure rates no matter therapy, may

            13   differ.  We would know that.

            14             And we know they differ by hospitals. It's kind of

            15   disconcerting that they differ by hospitals.  Certainly in the

            16   press that hospital cure rates differ considerably by

            17   institution.  And what we as statisticians to understand the

            18   effect of the new drug is that we do exactly what I did here.

            19   We compare the new drug in the hospital that has the high cure

            20   rate, say.  And we compare the new drug to old drug in the

            21   hospital that has low cure rate.  And we combine the

            22   information in exactly the same way I did here.

            23             Exactly the same way knowing that there would an

            24   underlying -- could be and probably is an underlying

            25   difference in the cure rates.  So your example in the medical








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             1   field is exactly what we would do. We compare, we combine the

             2   odds ratios exactly the same way to here.

             3             Having different underlying cure rates with two

             4   hospitals is in my estimation, my statistical expertise, my

             5   statistical -- I know those exist.

             6             Now to understand the effect of the new drug I have

             7   to make sure I control for that, and exactly the same way I

             8   control for here, exactly the same statistical method,

             9   exactly.  There's nothing different about it.

            10             And we take as given that there will be these

            11   differences in cure rates by hospital.  And we then control

            12   for them in our final analysis of putting the odds ratios

            13   together, how good this drug is.

            14             So that's the kind of analysis that we would do in

            15   the example for looking at a new drug, exactly the same

            16   analysis we're doing here.  And for exactly the reasons, for

            17   exactly the reasons that you provided that there may be

            18   differences of the underlying rates by hospital.

            19   Q    I'm actually not asking you to compare and -- this may

            20  make the hypothetical less realistic so I apologize -- I'm not

            21  asking you to compare a new medicine and an old medicine, I'm

            22  saying you have these different rates of cure.

            23   A    That's a different issue --

            24   Q    And they're substantially --

            25   A    It's a different problem.








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             1   Q    Yes.

             2   A    Totally different problem.  It's not an analogous at all

             3  to what we're doing here, okay?  But if you're interested in

             4  studying the underlying causes of the difference in cure rates

             5  by hospital, then we need to do a study and find out what goes

             6  on in the various hospitals and collect variables about

             7  hospitals, and then relate those variables of the hospital to

             8  the cure rates to the hospital.  It's a different kind of

             9  study.  And that's the kind of study that is being done to

            10  indicate quality of hospital institutions, for instance.

            11   Q    My question to you though would you ask the question?

            12  You'd be interested in the question of why there was this

            13             Big difference; right?

            14   A    What I would do is I would try to find people who would

            15  tell me about variables that would -- like on the issue I was

            16  discussing, if our instant issue of differences among hospitals

            17  then I would want to be informed about the variables that might

            18  help me to understand those difference in cure rates, yes.

            19   Q    Because those differences are disconcerting.  I think I'm

            20  quoting you.

            21   A    Difference -- did I say it just now?

            22   Q    Yes.

            23   A    The differences are disconcerting.  Well, I mean,

            24  disconcerting in the sense of statistically you want to look at

            25  what causes the difference.








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             1   Q    You want to find out what's going on.

             2   A    If I were focusing on the questions of why there are

             3  different cure rates in hospitals, then I would want to find

             4  out what's going on, that's right.  That's a separate issue.

             5   Q    You wouldn't stop treating the people in the hospital

             6  that was built on a toxic waste dump; right?

             7   A    Would I?

             8   Q    Yes.

             9   A    Would I think that?  No, I think there are underlying

            10  factors that could easily explain differences such as you said.

            11  There certainly could be underlying factors, yes.

            12   Q    You don't have any basis for saying that the admissions

            13  system at U of M Law School is unfair to white applicants;

            14  right?

            15             MR. KOLBO:  Object to form, your Honor.

            16             THE COURT:  Sustained.

            17  BY MS. MASSIE:

            18   Q    Since you don't know what's behind the criteria that

            19  forms the basis for your analysis, you don't have any opinion

            20  on whether the admissions system at the law school is unfair to

            21  white applicants; do you?

            22   A    My analysis in forms of what admissions decisions of the

            23  law school, with respect to how decisions are made, with

            24  respect to undergraduate grade point averages, and LSAT's.  So

            25  that's what my analysis shows.  And it shows how individuals








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                                                                     37

             1  with similar credentials are treated.

             2   Q    So the answer --

             3   A    And thus, and thus, as there are factors that would drive

             4  LSAT and GPA if that's -- then I don't have information about

             5  those other factors, that's right.

             6   Q    And those factors would be necessary for making a global

             7  statement about the fairness of the system; true?

             8             MR. KOLBO:  Object to form, your Honor.

             9             THE COURT:  If he has an answer, he can answer.

            10  BY MS. MASSIE:

            11   Q    Do you have an opinion on that?

            12   A    Fairness in a statistical sense would say are -- into

            13  similar credentials treated similarly.  In statistical

            14  standards that's what I could measure, and that's what I've

            15  done.

            16   Q    And you're assuming that a similar credential is the same

            17  number for a Black person, as for a Native American person, as

            18  for a White person, and so on.  That's what you're assuming

            19  when you make --

            20   A    The credentials presented with -- individuals with the

            21  same credentials means the same thing for -- that's certainly

            22  -- that's certainly -- those statistical were made for people

            23  with similar credentials.  We're comparing individuals with

            24  similar credentials.

            25   Q    You take the credentials, the numbers on the face of








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             1  them, and you stop there.

             2   A    I use those numbers to look at the admissions decisions,

             3  that's absolutely right.

             4   Q    So you don't have any basis for saying there's a double

             5  standard in admissions at the law school.

             6   A    Well, there certainly is a double standard with respect

             7  to how they treat individuals, with respect to similar

             8  credentials, that is, grade point average and LSAT.

             9             They certainly treat individuals with similar LSAT

            10   and GPA differently.

            11   Q    Okay.

            12   A    There's no question about that.

            13   Q    And if those measures, if undergrad grades and LSAT

            14  scores are systematically biased, measures of credentials, they

            15  cannot be used as a yardstick of the extent to which race is a

            16  part of the admissions program; correct?

            17             MR. KOLBO:  Object to foundation, your Honor.

            18             THE COURT:  Sustained.

            19             MS. MASSIE:  Judge, we're going to be -- our whole

            20   case is going to be showing that these measures are

            21   systematically biased so could I ask the question --

            22             THE COURT:  That may be true, except he's not here

            23   as an expert in that area.  I mean, he's already testified and

            24   told you just now that he just took the figures.

            25  BY MS. MASSIE:








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             1   Q    But hypothetically, if they are systematically biased

             2  then that means they can't be used to measure the extent to

             3  which race is used in admissions; correct?

             4             MR. KOLBO:  Same objection, your Honor.

             5             THE COURT:  Sustained.  I understand what you're

             6   going to try to prove during this trial, but you can't do it

             7   through this witness.  He doesn't have any expertise in this

             8   area.

             9  BY MS. MASSIE:

            10   Q    Your conclusion that there's a double standard in

            11  admissions turns on the presumption that there is not a

            12  systematic bias in GPA and LSAT; correct?

            13   A    I don't think so.  My -- the admissions decisions are

            14  made from LSAT and GPA scores.  And it's clearly the -- it's

            15  clear from the data that admissions offices -- that admissions

            16  office is using those scores for both minority and majority

            17  students.  It's clear they are.  And it's clear that they make

            18  decisions with a large allowance made for minority students

            19  with the same LSAT scores, GPA as majority students.

            20   Q    And you don't know whether allowance, to use your term,

            21  makes the program, the admissions program overall more or less

            22  fair and equal; right?

            23             MR. KOLBO:  Object to the form, your Honor.

            24             THE COURT:  Sustained.  Plus, I'm not sure exactly

            25   what you're asking.  Why don't you rephrase it?








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             1  BY MS. MASSIE:

             2   Q    You don't have an opinion about the overall fairness of

             3  the admissions system.

             4             THE COURT:  Other than that which you've already

             5   given.

             6   A    Other than -- I mean, I've already testified of where I

             7  think there's a large allowance.  That's what I testified to

             8  and that's my opinion.

             9             MS. MASSIE:  I don't have anything else.

            10             THE COURT:  Plaintiff, anything you wish?

            11             MR. KOLBO:  We have nothing, your Honor.

            12             THE COURT:  Very well.  Doctor, you've made your

            13   plane.

            14             THE WITNESS:  Thank you, very much.

            15             THE COURT:  Thank you, very much. We appreciate it.

            16   Plaintiff?

            17             MR. KOLBO:  Your Honor, we have nothing further at

            18   this time.  We have some deposition designations and so forth.

            19   The parties have talked about just submitting those to the

            20   Court --

            21             THE COURT:  Yes.

            22             MR. KOLBO:  -- for trial.  There will be exhibits

            23   with those as well and so forth.  We have nothing further at

            24   this time.

            25             THE COURT:  Very well.  Subject to the Plaintiff








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             1   being able to designate certain portions of depositions and

             2   exhibits, the Plaintiff rests; is that correct?

             3             MR. KOLBO:  Yes.

             4             THE COURT:  Mr. Payton?

             5             MR. PAYTON:  Your Honor, this happened a little bit

             6   more quickly than I expected.

             7             THE COURT:  Me, too.

             8             MR. PAYTON:  If we could take a short break so I can

             9   get my --

            10             THE COURT:  Sure.  How much time?

            11             MR. PAYTON:  Fifteen minutes would be fine.

            12             THE COURT:  Okay.  We'll see you in about fifteen

            13   minutes.

            14                  (Court recessed, 9:30 a.m.)

            15                  (Court reconvened, 9:50 a.m.)

            16             THE COURT:  Okay.  Mr. Payton?

            17             MR. PAYTON:  I understand, your Honor, that Mr.

            18   Kolbo, the Plaintiff, has rested with the understanding that

            19   we're going to be presenting other things, documents, and

            20   depositions.

            21             THE COURT:  Correct.

            22             MR. PAYTON:  But given that's where we are, and it's

            23   time for the defendants to present their case, I think it's

            24   appropriate now to address an issue that's just been hanging

            25   out there just by briefly an oral motion regarding the








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             1   individual defendants and whether or not they shouldn't be

             2   entitled to judgment right now at this stage of the

             3   proceedings.  This will just take a few minutes, but I think

             4   it's an appropriate point to talk about what the Plaintiff has

             5   presented in the way of evidence that relates to these

             6   individual defendants.  And then at the end of that, I'll --

             7             THE COURT:  You could do so if you want, but it's my

             8   intention to deal with that in my opinion as oppose to right

             9   now.  I certainly understand -- you have briefed extensively

            10   in your Motion for Summary Judgment.  I have no problems you

            11   making a record.  It's an issue that I'm well aware of.

            12             MR. PAYTON:  I certainly know the Court is well

            13   aware of it because we presented you with briefs --

            14             THE COURT:  Right.  Go on.

            15             MR. PAYTON:  -- but if I can just take a few minutes

            16   just to see where we are.

            17             THE COURT:  Absolutely.

            18             MR. PAYTON:  Because this case was brought not only

            19   by against the University of Michigan and its law school but

            20   against three individual governmental officials, Lee

            21   Bollinger, President of the university; Jiff Lehman, the

            22   current Dean of the law school; and Dennis Shields who was the

            23   Director of Admissions when the policy went into effect.  They

            24   were sued in their personal individual capacities for money

            25   damages against -- I know the Court is well aware of this








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             1   issue because it's been briefed more than once --

             2             THE COURT:  More than once.

             3             MR. PAYTON:  More than once.  But the standard is

             4   actually very clear and not in dispute.  Individual

             5   governmental officials are shielded from personal liability

             6   under the doctrine of qualified immunity when they proceed in

             7   good faith to carry out their official duties based upon the

             8   law as a reasonable governmental official would have

             9   understood.

            10            Now, I understand that Justice Powell's opinion in

            11   Bakke is the question of whether it is the case that governs

            12   this case is under advisement. The Court is going to decide

            13   that.  And you know our views.  You've heard that.  But

            14   however this Court resolves that question, I think there's no

            15   question but --

            16             THE COURT:  It's an independent issue.

            17             MR. PAYTON:  That's right.  The Bakke opinion --

            18             THE COURT:  One has nothing to do with the other.

            19             MR. PAYTON:  Right.

            20             THE COURT:  I absolutely agree.

            21             MR. PAYTON:  And the Bakke opinion however it's

            22   resolved in the case in chief, it is the governing standard

            23   for whether or not the officials were acting reasonably.

            24            So unless there's evidence that these three

            25   individual defendants violated Plaintiff's clearly established








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             1   rights, that's acted in a way of -- clearly exceeded the law

             2   that a reasonable person would have understood it to be, they

             3   can't be held personally liable.

             4            The Plaintiff has now rested.  What's the Plaintiff's

             5   case against these three individuals?  Lee Bollinger.  He is

             6   the President of the university.  He was the Dean of the law

             7   school in 1992 with policy was adopted.

             8  He set that process in motion.

             9            While he was dean, Allan Stillwagon left the law

            10   school, and a new director of admissions was hired, Mr.

            11   Dennis Shields.  And we know the rest.

            12            Jeff Lehman, the current Dean.  He served on the

            13   committee that wrote the new policy that was adopted in 1992.

            14   As Erica Munzel testified as Dean he told her how many

            15   students should be admitted in a class and how many Michigan

            16   residents that class ought to contain, but that he has never

            17   had a conversation with her about any comparable number, range

            18   of numbers, or percentages as it relates to minority students.

            19             Dennis Shields.  He was the new director of

            20   admissions in 1991, also served on the Faculty Admissions

            21   Committee that drafted the 1992 policy.  He hired Erica

            22   Munzel.  He trained her on how to review applications,

            23   file-by-file basis, looking at all applications, letting them

            24   compete against each other.  And while race was one factor, it

            25   was only one of many factors in which all candidates competed








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             1   for admission. That's it.

             2         They called Allan Stillwagon, Erica Munzel, and then

             3   they called Kinley Larntz.  Now nothing that Mr.  Stillwagon

             4   or Ms. Munzel testified to the Court reaching any qualified

             5   immunity.

             6         That just leaves Kinley Larntz.  Now his testimony about

             7   odds ratios of admissions of being greater for minority

             8   students within the same cells than for majority students, I

             9   believe his testimony was quite flawed and actually didn't

            10   really survive, but I'm going to assume I'm wrong and that it

            11   is just what he said, okay, on its own terms.

            12            What does the odds ratios point have to do with using

            13   race as a factor as Bakke allows.  Is Plaintiff proposing that

            14   this Court establish some new legal standard about odds

            15   ratios, an odds ratio of -- pick a number.  You know, pick a

            16   number, as Dr. Larntz said a large number.  Pick a large

            17   number, be deemed to constitute more than a plus factor that

            18   Bakke says is okay.  It would have to ignore the uncontested

            19   testimony of -- in the Plaintiff's own case from Erica Munzel

            20   about how admissions decisions are actually made,

            21   case-by-case, file-by-file, just as Bakke contemplated.

            22   Case-by-case, file-by-file, considering all the relevant

            23   factors including race to select a diverse class, and using

            24   race to obtain a critical mass of minority students in order

            25   to the benefits of that first class.








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             1           But this would have to be a new rule about odds

             2   ratios, and obviously if it's a new rule, it can't be a new

             3   rule that sort of voids someone's qualified immunity.  It has

             4   to be clearly established.

             5            Rule 52(c) authorizes this Court to make dispositive

             6   finding on facts given the evidence that's been presented and

             7   to grant us partial judgment on the case as it now exists.  I

             8   think the Plaintiff has put in insufficient evidence, wholly

             9   insufficient evidence to hold these three individuals liable

            10   and to breach their qualified immunity.  The individual

            11   defendants I think should not have been actually joined in

            12   this case, and they should dismissed from it right now.

            13             THE COURT:  Thank you, Mr. Payton.

            14             MR. KOLBO:  Very briefly, your Honor?

            15             THE COURT:  Sure.

            16             MR. KOLBO:  We, your Honor, actually have a

            17   stipulation in the Pretrial Order that Plaintiff -- if it's

            18   determined that the university is liable, the law school is

            19   liable for the manner in which they use race in the admissions

            20   process.  The Plaintiff has sued the individuals who would be

            21   responsible for that unlawfulness.  So that their individual

            22   responsibility really depends on whether or not the Plaintiff

            23   establishes that the University of Michigan Law School policy

            24   is unlawful even if one merely keeps that issue as to whether

            25   it's unlawful in light of Justice Powell's opinion as








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             1   establishing what would be fairly violated rights under the

             2   constitution.

             3            As I mentioned in our Opening Statement, your Honor,

             4   we believe actually that the burden in this case rests upon

             5   the Defendants.  There is no dispute in this case that the law

             6   school uses race as a factor in admissions.  At that point,

             7   the burden actually shifts to the Defendants to demonstrate

             8   that race is being used in the manner that is narrowed

             9   tailored to achieve what they assume to be a compelling

            10   governmental interest.

            11            Since they haven't put on a case yet, your Honor,

            12   they certainly haven't carried that burden.

            13           For those reasons and for the reasons that we've

            14   actually indicated in the Summary Judgment papers that we've

            15   filed, we don't believe that the law school is entitled to

            16   Summary Judgment on Qualified Immunity.  As indicated, your

            17   Honor, of course, we are going to be submitting additional

            18   exhibits and deposition testimony, designated for that purpose

            19   at the close of the trial, or at some point during the course

            20   of the trial.  We would oppose the motion.

            21             MR. PAYTON:  Just one --

            22             THE COURT:  Sure.

            23             MR. PAYTON:  This is what the Pretrial Order says in

            24   the stipulations that we've reached.

            25             THE COURT:  What page are you reading?








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             1             MR. PAYTON:  I'm on page 4.

             2             THE COURT:  I see it.  What line?

             3             MR. PAYTON:  It's paragraph 5.  It's right in the

             4   center of the page.

             5             THE COURT:  I see it.

             6             MR. PAYTON:  It says,

             7            "Insofar as Plaintiff prevails in her argument that

             8   the operation of the Law School's admissions process violated

             9   Plaintiff's clearly established constitutional rights such

            10   that University officials responsible for the operation of the

            11   admissions process may be individually liable for any

            12   damages."

            13            That's the phrase, "such that."

            14            And I don't disagree with Mr. Kolbo that we bear the

            15   burden on our affirmative defense which is the overall case.

            16            On the issue of qualified immunity that's a different

            17   standard.  And they have to show, they have to show that, in

            18   fact, these officials were acting in violation of clearly

            19   established legal rights as a reasonable person would

            20   understand that and they have not done that.  And there's no

            21   evidence in the record that they have put in.  I hear him

            22   saying he's going to put in some other things.  I don't think

            23   there could be any other things that are going to undermine

            24   qualified immunity.  It's a very powerful doctrine, and I

            25   think that these three individuals are entitled to its








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             1   protection right now.

             2             THE COURT:  Okay. I'll take the motion under

             3   advisement.  I suspect you concur --

             4             MS. MASSIE:  We join, yes.

             5             THE COURT:  Okay.  I'm sorry, I didn't mean -- I

             6   just assumed you concurred.

             7             MS. MASSIE:  No problem.

             8             THE COURT:  I'll take it under advisement.

             9             MR. PAYTON:  Okay.  Your Honor, the University will

            10   now present its case.  Let me just tell you where we're going

            11   to go today and tomorrow.

            12             THE COURT:  Please.

            13             MR. PAYTON:  We're going to call first, President of

            14   the University, Lee Bollinger who is right here.  I think we

            15   will -- we have a very good chance of finishing with him this

            16   morning.

            17             THE COURT:  That's great.

            18             MR. PAYTON:  This afternoon we anticipate calling

            19   Professor Richard Lempert.  I believe we will probably finish

            20   him this afternoon.  Tomorrow morning, we expect to begin with

            21   our expert on statistical analysis, Stephen Raudenbush.  He

            22   will take certainly all the morning, maybe some of the

            23   afternoon.  And we will then put on in the afternoon Dennis

            24   Shields who was the Director of Admissions in 1991, and served

            25   on the Admissions Committee.  That's what we expect for the








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             1   rest of today and tomorrow.

             2             THE COURT:  Great.  I appreciate it.

             3             MR. PAYTON:  The University calls as its first

             4   witness, President Lee Bollinger.

             5                   L  E  E   B O L L I N G E R ,

             6  having been called as a witness herein, and after having been

             7   first duly sworn to tell the truth, the whole truth and

             8   nothing but the truth was examined and testified as follows:

             9                    DIRECT EXAMINATION

            10  BY MR. PAYTON:

            11   Q    Good morning, President Bollinger.

            12   A    Good morning.

            13   Q    Would you state your full name for the record?

            14   A    Lee C. Bollinger.

            15   Q    Okay.   And you are currently the President of the

            16  University of Michigan?

            17   A    That's correct.

            18   Q    And how long have you served in that position?

            19   A    Four years.

            20   Q    You started in 1997?

            21   A    That's correct.

            22   Q    Okay.  And before you were the President of the

            23  University of Michigan, what job did you hold?

            24   A    I was the provost at Dartmouth College.

            25   Q    What does the provost do?








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             1   A    The provost is the chief academic officer principally

             2  responsible for the academic quality of the institution.  Also

             3  the chief budget officer.

             4   Q    Reports directly to the president?

             5   A    That's correct.

             6   Q    And prior to being the provost at Dartmouth, what

             7  position did you hold?

             8   A    I was the Dean of the University of Michigan Law School.

             9   Q    And what was your term of being the Dean of the law

            10  school?

            11   A    1987 to 1994.

            12   Q    And prior to being the Dean of the law school you were on

            13  the faculty for a number of years; is that correct?

            14   A    That's correct.

            15   Q    When did you start on the faculty?

            16   A    I joined the faculty in 1973.

            17   Q    So you're on the faculty in 1973, and then 1987, you

            18  became the Dean.

            19   A    That's correct.

            20   Q    How do you become Dean?  What happens?

            21   A    There's a search committee, a search process that is set

            22  up.  The central administration, the provost, ask the faculty

            23  to recommend a number of people to form a search committee.  It

            24  is principally, if not exclusively, made up of faculty members.

            25  A national search is conducted.  Interviews are held with the








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             1  faculty. And then the search committee presents three names to

             2  the provost and the president and they select from that list.

             3   Q    Now, you wanted to be Dean; right?  You weren't -- it

             4  wasn't against your will that you were made Dean, you wanted to

             5  be Dean.

             6   A    If the truth be told, yes.

             7   Q    And why were you interested in being the Dean of the law

             8  of the school?

             9   A    I care deeply about the law school.  I realize being an

            10  academic administrator was something that I might be -- have

            11  some talents at, and those two things led me to want to accept

            12  the position.

            13   Q    And did you have a view or a vision of what you wanted to

            14  do as Dean of the law school?

            15   A    One of the things about becoming the Dean is that you

            16  move from being a regular faculty member with really limited

            17  responsibility for administrative things in the law school to

            18  having full responsibility.  So I had a lot to learn.  But what

            19  I knew is that my principal job was to focus on the academic

            20  quality of the law school, and that really meant the quality of

            21  the faculty and the quality of the student body.

            22   Q    And did you understand when you became Dean that you

            23  needed to focus on admissions?

            24   A    I did.  Admissions is really the crucial point at which

            25  we gather a class.  And that -- the composition of the class,








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             1  the nature of the class, the quality of the student body is

             2  really determined at that stage.

             3             So I knew that at some point admissions was going to

             4   have to be a principal focus.

             5   Q    Now, Allan Stillwagon who was the first witness at the

             6  trial here, he was the Dean of Admissions when you took over --

             7  Director of Admissions when you took over as Dean in 1987; is

             8  that correct?

             9   A    That's correct.

            10   Q    Had you had some contact with him as a faculty member?

            11   A    I had, but very casual.  I think once or twice I may have

            12  served on the so-called Admissions Committee.  But at that time

            13  it was a committee that was regarded as a light committee

            14  obligation.  And, of course, it's a relatively small community,

            15  some fifty faculty, and you tend to know the staff and the

            16  like, but very limited contact with Allan.

            17   Q    You didn't hire Mr. Stillwagon.

            18   A    I did not.

            19   Q    Who had hired him?

            20   A    I believe Dean Terry Sandlow.

            21   Q    He's your immediate predecessor?

            22   A    Yes.

            23   Q    Now, Mr. Stillwagon reported to you as the Director of

            24  Admissions?

            25   A    That's correct.








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             1   Q    And what was your contact with Mr. Stillwagon once you

             2  became Dean?

             3   A    I guess I would describe it in two ways.  There's the

             4  contact that comes from issues arising this particular

             5  application, this particular policy.  And that might come up

             6  once every two weeks or once a week.  I can't remember exactly.

             7  But there be limited contact, really directed at some

             8  particular issue.

             9                   And then a few times a year we would we would

            10   sit down and go over a more extensive evaluation of admissions

            11   and what had happened the preceding year, what we hoped to

            12   accomplish in the subsequent year.

            13   Q    Let me ask you this, President Bollinger, when you became

            14  Dean in 1987, what was your, you know, state of knowledge or

            15  familiarity with admissions at the law school?

            16   A    It wasn't very deep I'm afraid.  In fact, I knew very

            17  little about reading files.  I knew very little about the

            18  particular policies.  I was just generally familiar with

            19  admissions.

            20   Q    Okay.  Do you recall prior to being Dean, do you recall

            21  being aware something called the Special Admissions Program?

            22   A    I recall that term. There's a concept.  But no particular

            23  knowledge as to how it was implemented.

            24   Q    Okay.  What did you think it was?

            25   A    Well, I knew that the law school had the commitment








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             1  really for two decades at that point, roughly two decades, to

             2  ensure that we had a racially and ethnically diverse student

             3  body. And that's what the Special Admissions term applied to.

             4   Q    Now, when you became Dean, did you come to have concerns

             5  about the way in which Mr. Stillwagon operated as the Director

             6  of Admissions?

             7   A    Yes.  I knew - to go back to what I said a while ago, I

             8  knew that at some point I was going to focus on admissions and

             9  yet I didn't have enough information really at the beginning to

            10  my deanship to undertake that. But in the first few years, of

            11  course, I developed impressions about how we might improve

            12  admissions.  Things like getting more faculty involvement.

            13  There was very little faculty involvement in the admissions.  I

            14  thought that ought to increase. Issues about what kinds of

            15  things we look for in applications, how we review them.  I also

            16  knew that issues of racial and ethnic diversity were on the

            17  horizon.

            18             So in the first few years I would arrange these for

            19   discussion with members of the faculty, but also with the

            20   admissions office and Allan Stillwagon in particular.

            21             And my concerns were that Allan may not be as

            22   receptive to rethinking the issues as I thought was required.

            23   And so -- I was concerned about that.

            24   Q    What do you mean he not be receptive to rethinking the

            25  issues, what are you talking about?








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             1   A    This really required a kind of openness to reshaping

             2  admissions in some significant ways.  And I felt that Allan was

             3  quite resistant of that.

             4   Q    Did you also have some concerns about allegations that

             5  had come to your attention about remarks that had been made to

             6  minority applicants and female applicants that were perceived

             7  to be offensive?

             8   A    Yes.

             9   Q    Now, did you raise any of these concerns with Mr.

            10  Stillwagon, the need for, you know, more flexibility, and all

            11  of those, and all the remarks, did you raise this with Mr.

            12  Stillwagon?

            13   A    Yes, I did.

            14   Q    And what happened?

            15   A    Allan was resistant to these discussions.  And I

            16  eventually decided that it was important to have a change.

            17   Q    And is that how he came to part ways with the law school?

            18   A    Yes.

            19   Q    Okay.  Now, President Bollinger, I want you to go back to

            20  being Dean Bollinger for the purposes of this because what

            21  we're concerned with is when you were Dean.

            22             When you were Dean what did you view the law

            23   school's educational mission to be?

            24   A    It's very difficult to capture an educational mission in

            25  a paragraph, but I would these are the principal matters.  The








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             1  law school has the responsibility to communicate to students, a

             2  body of law.  There is lot to learn about contracts, civil

             3  procedure, torts, anti-trust, constitutional law.   Part of our

             4  majority responsibility is to convey to each new generation of

             5  law students as much of that body of law and juris prudence as

             6  we can.  So that I would say is the first.

             7             The second is to try to inculcate in students a way

             8   of thinking.  And it's often talked about in law schools as a

             9   special way of approaching the world.  I'm not so sure it's

            10   that special.  But in any case what it is to my mind, is an

            11   ability to make problems more complex.  And that means being

            12   to understand multiple view points, multiple ways of

            13   understanding a problem or the world at the same time.  And

            14   this turns out given human nature to be exceedingly difficult

            15   to do. There's a tendency that we have to think that we know

            16   what the answer is; to think that we know how to deal with a

            17   problem or an issue, and only later are we surprised to find

            18   out that there are many other ways of viewing this same issue

            19   or problem.

            20             And law schools are built around the proposition

            21   that by analyzing case-after-case-after-case, problem-

            22   after-problem in a very real setting, that is, of a real case,

            23   that students will acquire through this habitual exercise this

            24   unusual capacity to be able see and take a point of view, and

            25   at the same time integrate into their thinking other








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                                                                     58

             1   prospectives on the same problem.  That's the second.

             2             The third I would say is that in many ways law

             3   schools are the continuation of the ideal of the liberal

             4   education, law so interwoven in life that you can't understand

             5   law fully unless you under economics or history or philosophy.

             6   And we try to integrate a liberal education really into a law

             7   school education.

             8             So I would say that is my sense and my description

             9   of what a law school education is all about.

            10   Q    Does race play a role in the law school's educational

            11  mission?

            12   A    Absolutely.

            13   Q    What's the role?

            14   A    Given the history of this country, given the history of

            15  race relations in the United States and indeed in the world,

            16  both for good and for bad, it is simply a part of life.  And it

            17  is very important as you're trying to do these things I've just

            18  outlined, that is to understand the body of law, and multiple

            19  ways of thinking, and to extend the liberal education, it is

            20  very important to be able to do that in a context in which

            21  people have different life experiences, different backgrounds,

            22  comment the world in different ways.  And racial and ethnic

            23  diversity are as critical to that process as any other way in

            24  which we try to compose a class in our discussions and in our

            25  search.








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                                                                     59

             1   Q    President Bollinger, I want to come back to the

             2  Admissions Policy and admissions at the law school when you

             3  were Dean.  You hired Dennis Shields to be the Director of

             4  Admissions; is that correct?

             5   A    That's correct.

             6   Q    And what was that process?  How did that work?

             7   A    I appointed a search committee and the search committee

             8  conducted a national search. And, again, we had, I think three

             9  or four candidates.  I can't remember precisely how many and

            10  from those I interviewed each one of them, and selected Dennis

            11  as the best.

            12   Q    Okay.  I want to understand something about how the

            13  policy works at the law school.  Who is ultimately responsible

            14  for policy matters at the law school?

            15   A    It is really the faculty working together with the Dean.

            16  Law school faculties work sort -- the committee as a whole.

            17  And the Dean is responsible for bringing issues to the faculty,

            18  and trying to provide leadership on those issues, but

            19  ultimately it is the faculty working with the Dean that decides

            20  major policy.

            21   Q    Now, in the fall of 1991, you started the process of

            22  coming up with a new admissions policy.  You appointed a

            23  Faculty Admissions Committee to look into that?

            24   A    That's correct.

            25   Q    Could you just describe how you went about doing that?








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                                                                     60

             1   A    I mentioned a moment ago that I knew I was going to have

             2  to focus on admissions in a broad way.  I knew also that issues

             3  of racial and ethnic diversity and using race as a factor in

             4  admissions for educational purposes, I knew that that was under

             5  discussion and review in the society.  I knew that Bolt Law

             6  School at the University of California in Berkeley, for

             7  example, was in discussions with the federal government about

             8  their process of admissions and using race as a factor.

             9   Q    They were being investigated.

            10   A    I think -- let me just say I'm not sure I would use -- I

            11  just don't know exactly what term I would -- but certainly

            12  there were discussions under way, and it was a review, critical

            13  review, perhaps.

            14             I knew that these were major issues and I had this

            15   broad sense as I said that we should be rethinking admissions.

            16   And to that end, I wanted as a major activity for the faculty

            17   and all of us that year, I wanted us to focus on admissions.

            18   This was not just your usual we've got ten issues, let's take

            19   them up this year.  This was going to be a major focus for the

            20   law school.

            21             And, of course, because some of these involved not

            22   only policy but the Constitution of the United States, law

            23   itself, it was imperative in my view that we be as confident

            24   as we could that we were in full compliance with the

            25   Constitution and the law.








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                                                                     61

             1             So I selected a committee. With that in mind, these

             2   were committee members that were highly respected by the

             3   faculty, very distinguished scholars, several of whom have

             4   expertise in this area of constitutional law involving race,

             5   civil rights, and Bakke and so on.  And I wanted people who

             6   would care deeply about admissions and in making sure that we

             7   had the best admissions policy that we could.

             8             To my knowledge -- to my recollection, I don't think

             9   we had a written policy before that, and part of this was to

            10   get the law school faculty to say this is what we want to do

            11   with admissions.  So the committee was set up for that

            12   purpose.

            13   Q    All right.  Now, Professor Lempert was picked by you to

            14  chair this committee.  Why did you select him?

            15   A    Professor Lempert met all the qualifications I mentioned

            16  a moment ago.  But he also had added capacity and things like

            17  social science work because he has Ph.D. in sociology and has

            18  an appointment in the Sociology Department, so it's an

            19  excellent working --

            20   Q    He's a dual appointment.  He's also a law professor?

            21   A    Yes, that's correct.  But he has expertise and knowledge

            22  being able to work with data sets and quantitative data and so

            23  on.   And that was a very important qualification.

            24   Q    You also put Dennis Shields on this committee; is that

            25  correct?








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                                  THURSDAY, JANUARY 18TH, 2001


                                                                     62

             1   A    That's correct.

             2   Q    Now, Dennis Shields had literally just been hired by you

             3  to be the director of admissions.  He hadn't been at Michigan,

             4  why did you put Dennis Shields on the Committee?

             5   A    I believed that admissions would work best if we had more

             6  integration between the faculty and the admissions process,

             7  more involvement, more engagement of faculty in admissions.

             8             I also believed there was and goes with the point

             9   which is a slightly different way of putting it, I also felt

            10   that the faculty was -- really didn't know as much as it

            11   should about the admissions process.  I was a perfect example

            12   of that as a faculty member. I felt that the Dean of

            13   Admissions or the Director of Admissions didn't know enough

            14   about what the faculty expected, and knew and their experience

            15   in the classroom, and with students.  So this was the perfect

            16   opportunity to take a new director admissions and merge him

            17   with the faculty in a very important venture for us.  And it

            18   just seemed like an ideal situation.

            19   Q    Now, once the committee is formed in the fall of 1991,

            20  and starts doing its work what was your relationship to the

            21  committee?  What's your style as Dean?  Did you leave them

            22  alone, did you go to the meetings, what happened?

            23   A    No, I -- once they're appointed and thinking about this

            24  I'm sure would get periodic reports on how they were doing, and

            25  I, of course, had some views, I've already said them, and I





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                                                                     63

             1  wold say them to the committee.  And I would make a case for

             2  things that I believed.  But at the end of the day it was

             3  really their job to come up with a policy.  They would present

             4  that to me at the end and then we would take it to the faculty,

             5  and that's what we did.

             6   Q    The committee starts in the fall of 1991, and it

             7  completes its report in April of 1992, many months later.  And

             8  then that report is presented to the faculty?

             9   A    That's correct.

            10   Q    You were obviously the Dean, you were at the faculty

            11  meeting, who presented the report?

            12   A    It would be the chair of the committee?

            13   Q    Okay.  What happened at that meeting with this report and

            14  recommendation which is our exhibit and our policy, what

            15  happened at the meeting.

            16             THE COURT:  Exhibit 4.

            17             MR. PAYTON:  Yes.

            18   A    I don't remember it in detail.  It's been many years now.

            19  But I do remember the sense of the day, and the faculty

            20  approached it with all of the seriousness one would expect from

            21  what I've said was -- sort of the purpose of the whole

            22  activity.   I remember just general and extensive discussion.

            23  And I also remember a general and I believe unanimous vote in

            24  favor of the policy as thought through and as recommended by

            25  the committee.



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                                                                     64

             1  BY MR. PAYTON:

             2   Q    Okay.  Now once the policy is adopted did you meet with

             3  Dennis Shields and tell him that he had to get any particular

             4  number of minority students into the class?

             5   A    No.

             6   Q    Or any particular percentage of minority students in the

             7  class?

             8   A    No.

             9   Q    Or any particular range of minority students in the

            10  class?

            11   A    No.

            12   Q    Did the Faculty Admissions Committee have to deal with

            13  Dennis Shields?  Did you interface or did you leave that up to

            14  the committee as well to implement the policy?

            15   A    I left it up to the committee, and the point of this was

            16  to have a faculty committee that would be much more intimately

            17  involved in the admissions process, and that's exactly -- the

            18  issue of critical mass and diversity and diversity of all kinds

            19  was really the -- it was the responsibility of the committee

            20  working with admissions office.

            21   Q    Okay.  You've read the 1992 policy recently.  I asked you

            22  to read it.

            23   A    Yes.

            24   Q    How does it hold up?

            25   A    I'm very proud of this.  I think that the law school met








                                     BENCH TRIAL - VOLUME 3
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                                                                     65

             1  its responsibility to -- as seriously as possible and with as

             2  much good faith as one can bring to an issue like this, to

             3  think through issues of racial and ethnic diversity in the

             4  context of the entire admissions process.

             5             I'm proud of every part of it.  I'm proud of what

             6   happened with respect to the broad understanding of diversity,

             7   the conceptions of -- the way the admissions process worked.

             8   And I'm extremely proud of the policy with respect to racial

             9   and ethnic diversity and how that's conceived of.

            10             MR. PAYTON:  Your Honor, I had originally thought

            11   that it would make some sense to sort of go through the

            12   policy, but I think because Professor Lempert is coming next

            13   and we're going to spend more time going through the policy,

            14   I'm just going to skip that with President Bollinger.

            15             THE COURT:  Thank you.

            16  BY MR. PAYTON:

            17   Q    President Bollinger, two years after this policy was

            18  adopted in 1994, you left the law school and went to Dartmouth;

            19  is that right?

            20   A    That's correct.

            21   Q    And since then you've become the president of the

            22  university; is that correct?

            23   A    That's correct.

            24   Q    And you really haven't had any ongoing responsibilities

            25  at the law school since 1994; is that correct?








                                                                            66

             1   A    That is correct.

             2             MR. PAYTON:  No further questions.  Thank you, very

             3   much.

             4             THE COURT:  Why don't we go in order?  Any

             5   questions?

             6             MS. MASSIE:  We don't have any.
             
             7

             8

             9

            10

            11

            12

            13

            14

            15

            16

            17

            18

            19

            20

            21

            22

            23

            24

            25








                                                                     67

                          1/18/01 - BENCH TRIAL - VOLUME III

        1                          CROSS EXAMINATION

        2           BY MR. KOLBO:

        3      Q.   Good morning, President Bollinger.

        4      A.   Good morning.

        5      Q.   We met once before, I think some time ago.  My name is

        6      Kirk Kolbo and I represent the plaintiff in the current

        7      lawsuit.  Am I correct that, that Allan Stillwagon was Dean

        8      of Admissions for approximately three years after your

        9      tenure as Dean at the Law School commenced?

       10      A.   I think that's right.

       11      Q.   Okay.  And during that three-year period, did you have

       12      an interest in how the admission process worked?

       13      A.   Did I have an interest in how, of course I had an

       14      interest.

       15      Q.   As the dean, I take it, I think I understood this from

       16      your earlier testimony this morning, you took an increased

       17      interest in how admissions worked, once you had

       18      responsibility or once you assumed the responsibility of

       19      Dean, is that a fair statement?

       20      A.   What I said is that when I became Dean, I recognized

       21      that I didn't know very much about admissions, that I also

       22      knew that it was a critical part of the, of the law school,

       23      that I developed some viewpoints about how admissions

       24      should be done and had changed.  And that over the course

       25      of three or so years, I then realized it was time to really





                                                                   68

                          1/18/01 - BENCH TRIAL - VOLUME III

        1      focus on admissions as policy.

        2      Q.   And did you have an interest in the, from, say, 1987

        3      when you first became Dean up until the time that Assistant

        4      Dean Stillwagon left in 1990, did you have an interest at

        5      that time in how the law school went about assembling the

        6      critical mass of minority students?

        7      A.   Of course I had an interest.

        8      Q.   Okay.  And I think you indicated that you would have

        9      some conversations from time to time with Assistant Dean

       10      Stillwagon about how the admissions process worked?

       11      A.   Yes.

       12      Q.   Given your interest and the issue of minority

       13      admissions, did you have some conversations with Assistant

       14      Dean Stillwagon about how exactly it was minority

       15      admissions were the focus of the admissions office?

       16      A.   I don't recall any discussions in detail about how it

       17      worked.

       18      Q.   You were generally familiar with the fact that there

       19      was something called the special admissions program,

       20      correct?

       21      A.   That is correct.

       22      Q.   You were generally aware of that during Assistant Dean

       23      Stillwagon's tenure, correct?

       24      A.   That's correct.

       25      Q.   Did you ever have a conversation where you out of





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                          1/18/01 - BENCH TRIAL - VOLUME III

        1      curiosity asked Assistant Dean Stillwagon what the details

        2      of the special admissions program were?

        3      A.   As I said, I don't recall any discussions of a

        4      detailed description of how admissions worked in that

        5      sense.

        6      Q.   Do you think you asked Assistant Dean Stillwagon how

        7      the special admissions program worked at any time during

        8      the three years that he was Assistant Dean during your

        9      tenure?

       10      A.   I don't recall.

       11      Q.   Do you recall as, once you became Dean at the Law

       12      School, did you undertake some investigation to ascertain

       13      whether there were any faculty resolutions or policies with

       14      respect to how minority admissions were handled at the law

       15      school?

       16      A.   I'm sorry, could you restate the question please?

       17      Q.   Sure.  Once you became the Dean of the Law School, did

       18      you undertake any efforts to investigate what faculty

       19      mandates or policies there might be with respect to how

       20      minority admissions were handled at the law school?

       21      A.   I don't recall doing that.

       22      Q.   Well, given your interest in that subject, isn't that

       23      one of the things you took an interest in investigating?

       24      A.   I'm sorry.  I'm just trying to say to you that I had a

       25      general familiarity with how admissions worked.  And, and





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                          1/18/01 - BENCH TRIAL - VOLUME III

        1      that applied as well to how racial and ethnic diversity

        2      worked under this label of special admissions.

        3      Q.   I think you testified, correct me if I'm wrong, that

        4      you did, over the course of the three years that Assistant

        5      Dean Stillwagon was there, you developed some concerns

        6      about the admissions office or admissions policies?

        7      A.   I did develop concerns.

        8      Q.   And did you develop any specific concerns with respect

        9      to the way in which race was factored into the admissions

       10      process decision making?

       11      A.   I developed what I knew.  What I came to know over my

       12      early years as dean was that this was something that we

       13      should focus on.  So I knew that this is something that the

       14      law school faculty, as far as I recall, had not really

       15      looked at closely.  And I felt that that was extremely

       16      important to do.

       17      Q.   You didn't have any specific concerns about whether or

       18      not the policy, as it was being operated under Assistant

       19      Dean Stillwagon had any legal problems, did you, or did you

       20      not, sir?

       21      A.   No.  All I can do is say what I've said before.  I

       22      knew that there were issues in the country that were

       23      rising.  I wanted us to look at our particular practices

       24      and policies, to look at them fresh, and to make sure that

       25      we were in compliance with the law.





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                          1/18/01 - BENCH TRIAL - VOLUME III

        1      Q.   Did you have, did you ever raise any objections with

        2      Assistant Dean Stillwagon with respect to the way in which

        3      his office, admissions office viewed or considered race in

        4      the admissions process?

        5      A.   I'm sorry, you're going to have to restate that again.

        6      Q.   Yes.  At any time during your tenure as dean, starting

        7      in 1987 and up until the time that Assistant Dean

        8      Stillwagon departed, did you raise any objections with

        9      Assistant Dean Stillwagon concerning the manner in which

       10      race was concerned in the admissions process under his

       11      tenure?

       12      A.   I don't recall.

       13      Q.   You mentioned, I think, in your testimony this

       14      morning, if I don't use the right words, let me know.  But

       15      I think you suggested that Assistant Dean Stillwagon had

       16      some inflexibility in the way that he was approaching some

       17      things, as far as you were concerned?

       18      A.   I said that, I'm trying to say that I felt that there

       19      was a very important need to rethink admissions, really,

       20      from scratch almost, and that was, not only with respect to

       21      taking race into account and diversity, but more broadly,

       22      the whole question of faculty engagement with the

       23      admissions process and the like.  And then I felt that

       24      Allan was not as receptive to rethinking these things as I

       25      felt we needed.





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        1      Q.   Did you have any concerns that Assistant Dean

        2      Stillwagon was not receptive with respect to any changes

        3      that might be made in the way that race was considered as a

        4      factor in the admissions process?

        5      A.   Again, a long, complicated sentence.  I want to make

        6      sure that I answer honestly and accurately, so please

        7      restate it.

        8      Q.   Sure.  You've mentioned, just as a preface here, that

        9      Assistant Dean Stillwagon might not be as flexible on

       10      approaching some issues with respect to admissions,

       11      correct, possible changes in admissions, is that fair?

       12      A.   That's fair.

       13      Q.   Okay.  Now, we haven't talked about any of the

       14      specific, or I haven't heard testimony from you with

       15      respect to any specific substantive areas which you thought

       16      that Assistant Dean Stillwagon might be somewhat