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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
4
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
5
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,
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
6
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
7
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;
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
8
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?
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
9
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
10
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
11
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
12
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
13
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
14
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
15
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
16
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?
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
17
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
18
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
19
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
20
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
26
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
29
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
30
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
31
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
32
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
33
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
34
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
35
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
36
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
38
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:
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
39
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?
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
40
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
41
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
42
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
43
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
44
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
45
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
46
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
47
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?
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
48
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
49
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
50
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?
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
51
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
52
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,
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
53
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
54
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
55
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?
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
56
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
57
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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?
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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?
BENCH TRIAL - VOLUME 3
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
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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.
BENCH TRIAL - VOLUME 3
THURSDAY, JANUARY 18TH, 2001
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
THURSDAY, JANUARY 18TH, 2001
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
69
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
70
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.
71
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.
72
1/18/01 - BENCH TRIAL - VOLUME III
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