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.

                            UNITED STATES DISTRICT COURT
                        FOR THE EASTERN DISTRICT OF MICHIGAN
                                 SOUTHERN DIVISION



             BARBARA GRUTTER, for herself
             and all others similarly
             situated,
                                                   Civil Action
                     Plaintiff,
                                                   No. 97-CV-75928
                   -vs-

             LEE BOLLINGER, JEFFREY LEHMAN,
             DENNIS SHIELDS, and REGENTS OF
             THE UNIVERSITY OF MICHIGAN,

                     Defendants,

                   and

             KIMBERLY JAMES, ET AL.,

                     Intervening Defendants.
             _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _/         VOLUME 5


                                    BENCH TRIAL
                      BEFORE THE HONORABLE BERNARD A. FRIEDMAN
                            United States District Judge
                       238 U.S. Courthouse & Federal Building
                            231 Lafayette Boulevard West
                                 Detroit, Michigan
                             MONDAY, JANUARY 22ND, 2001




             APPEARANCES:


             FOR PLAINTIFF:                 Kirk O. Kolbo, Esq.
                                            R. Lawrence Purdy, Esq.










                          GRUTTER -vs- BOLLINGER, ET AL 
                                                                     

                                                                     2




         1

         2   APPEARANCES (CONTINUING)

         3
             FOR DEFENDANTS:                John Payton, Esq.
         4                                  Craig Goldblatt, Esq.
                                            On behalf of Defendants
         5                                  Bollinger, et al.

         6
                                            George B. Washington, Esq.
         7                                  Miranda K. S. Massie, Esq.
                                            On behalf of Intervening
         8                                  Defendants

         9

        10   COURT REPORTER:                Joan L. Morgan, CSR
                                            Official Court Reporter
        11

        12

        13

        14        Proceedings recorded by mechanical stenography.
                      Transcript produced by computer-assisted
        15                         transcription.

        16

        17

        18

        19

        20

        21

        22

        23

        24

        25





                          GRUTTER -vs- BOLLINGER, ET AL

   

                                                                     3




         1

         2

         3                           I N D E X
                                     _ _ _ _ _
         4

         5
             WITNESS:                                           Page
             _______                                            ____
         6
            WITNESSES PRESENTED ON BEHALF OF DEFENDANT
         7
             KENT SYVERUD
         8
             Direct Examination by Mr. Kessler                    7
         9   Cross-Examination by Mr. Purdy                      55
             Redirect Examination by Mr. Kessler                 80
        10
             JEFFREY LEHMAN
        11
             Direct Examination by Mr. Payton                    88
        12   Cross-Examination by Ms. Massie                    156
             Cross-Examination by Mr. Purdy                     168
        13

        14

        15

        16                        E X H I B I T S
                                  _ _ _ _ _ _ _ _

        17

        18                                 MARKED           RECEIVED
                                           ______           ________

        19
             Exhibit Number 153-155                              22
        20

        21

        22

        23

        24

        25





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                     4




         1                                  Detroit, Michigan

         2                                  Monday, January 22, 2001

         3                                  9:00 a.m.

         4                            _   _   _

         5                             (Court in session.)

         6                        THE COURT:  You may be seated.  Good

         7         morning all.

         8                        MS. MASSIE:  Good morning.

         9                        THE COURT:  Good morning.

        10                        MS. MASSIE:  Your Honor, I have got a

        11         couple of scheduling things for you.

        12                        THE COURT:  Good, I was going to talk

        13         to you guys about scheduling.

        14                        MS. MASSIE:  I have already talked to

        15         both Mr. Kolbo and Mr. Payton about all of the

        16         above, all of what follows, I should say.

        17                        THE COURT:  Great.

        18                        MS. MASSIE:  Tomorrow we're looking

        19         at Gary Orfield and two students Agnes Aleobua and

        20         Erika Dowdell.  On Wednesday we're looking at

        21         John Hope Franklin and Jay Rosner.

        22                        And, Judge, we have had a great deal

        23         of difficulty with our out of town people setting up

        24         a full day on Thursday.

        25                        THE COURT:  You want to go Thursday





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                     5




         1         off and start it when we get back?

         2                        MS. MASSIE:  That would be great.

         3                        THE COURT:  It's up to you guys.  I

         4         was going to ask you about Thursday, maybe breaking

         5         a little bit early, you know, like 4:00.  I mean

         6         it's up to you.

         7                        I mean things are moving so nicely

         8         and so forth.  That's okay with everybody, we'll

         9         take Thursday off and then we'll reconvene on I

        10         think it's the 6th.  Is that what it is?

        11                        MS. MASSIE:  Yes, the 6th.

        12                        THE COURT:  Good, no problem.

        13                        MS. MASSIE:  Fantastic, thanks a lot.

        14                        THE COURT:  Okay.

        15                        MS. MASSIE:  Two other quick things.

        16         First, we'll have the demonstrative exhibit which

        17         will all be based on things that are already in the

        18         record for Professor Orfield to both the Defendant

        19         and the Plaintiff by later on today at some point.

        20                        And on tomorrow, this hasn't been put

        21         on the record yet, but there's been some talk about

        22         sequestering fact witnesses.

        23                        I would like to make some

        24         designations for the organizations I represent, and

        25         I also had a special request on behalf of one of the





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                     6




         1         law students who would like to come.  She probably

         2         won't be called as a witness, she would like to

         3         come.

         4                        I didn't have a chance to raise this

         5         to counsel before you took the bench.  Maybe we can

         6         talk about it after the break.

         7                        But there's a fact witness who, I

         8         think, will be called, or who could conceivably be

         9         called who is not an organizational representative

        10         and who would like to be able to attend the

        11         proceedings tomorrow.

        12                        THE COURT:  Why don't you talk about

        13         it, I don't think that that would be a problem.  I

        14         don't think anybody should have any problems.  The

        15         fact witnesses here are such that--it's not like in

        16         a criminal case where fact witnesses are subjected

        17         to lots of other kind of things.

        18                        So talk about it.  If there's any

        19         difficulty, let me know.  But I don't think there

        20         should be a problem for any fact witness who really

        21         wants to sit here.

        22                        But there may be a specific reason

        23         why one counsel would note why they shouldn't.  But

        24         other than that, I don't think that's a problem.

        25                        MS. MASSIE:  Thanks.





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                     7




         1                        MR. KESSLER:  With that the law

         2         school calls Kent Syverud as its next witness.

         3                        THE COURT:  Good.  It's good to see

         4         what he looks like, we have spoke on the phone so

         5         many times.

         6                        I have disclosed that I have sent you

         7         many, not many, but a few cases to mediate for us

         8         and what a great job you have done.  But I don't

         9         think we have ever really met.

        10                         KENT SYVERUD,

        11         was thereupon called as a witness herein and, after

        12         having been first duly sworn to tell the truth, the

        13         whole truth and nothing but the truth, was examined

        14         and testified as follows:

        15                       DIRECT EXAMINATION

        16   BY MR. KESSLER:

        17   Q.    Good morning, Dean Syverud.

        18   A.    Good morning.

        19   Q.    Would you tell us your full name for the record,

        20         please?

        21   A.    Kent Syverud.

        22   Q.    Where do you work?

        23   A.    I work at the Vanderbilt University Law School in

        24         Nashville, Tennessee.

        25   Q.    And what position do you hold at Vanderbilt Law





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                     8




         1         School?

         2   A.    I'm the dean of the law school and I am a professor

         3         of law.

         4   Q.    What are your responsibilities as dean and as a

         5         professor of law?

         6   A.    I teach courses, I teach civil procedure negotiation

         7         and some other courses.  I am the dean of the law

         8         school, which means responsible for stewarding all

         9         the administration of the school and the faculty.

        10         And also have some responsibilities in the

        11         university at large.

        12   Q.    Do you have responsibilities with law school alumni?

        13   A.    Yes.

        14   Q.    What are those, just very briefly?

        15   A.    Mostly responsible for relations with the alumni,

        16         including fund raising and strategic planning for

        17         the school.

        18   Q.    How many students does the Vanderbilt Law School

        19         have?

        20   A.    550.

        21   Q.    How many employees?

        22   A.    About 125.

        23   Q.    Are you involved in admissions to any degree?

        24   A.    The dean of Admissions report to me.

        25   Q.    Is it typical for a law school dean to carry the





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                     9




         1         teaching load that you do?

         2   A.    Yes.

         3   Q.    And why have you chosen to do that?

         4   A.    Teaching is the most important thing I do and I

         5         enjoy it.

         6   Q.    Why don't you tell us about your educational

         7         background beginning with college?

         8   A.    I attended Georgetown University in Washington, D.C.

         9         and graduated in 1977 with a degree in foreign

        10         service from a foreign service school.

        11                        I then attended the University of

        12         Michigan both for law school and for graduate school

        13         in economics.  I got my law degree at Michigan in

        14         1981, and my graduate degree in economics and

        15         master's degree in 1983.

        16   Q.    Were you on the Law Review at Michigan?

        17   A.    Yes, I was.

        18   Q.    What position did you have?

        19   A.    I was the entering chief.

        20   Q.    Did you earn any honors or awards while you were a

        21         student at Michigan Law School?

        22   A.    Yes, I did.

        23   Q.    Tell us those, please?

        24   A.    I was chosen for the Henry M. Bates Award, which is

        25         award for the outstanding graduate in the senior





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    10




         1         class.  I won various awards in courses for having

         2         the best performance in various courses.

         3   Q.    How does one earn the Henry M. Bates award?

         4   A.    I believe it's voted by the faculty.

         5   Q.    And did you graduate magnum cum laude for the

         6         Michigan Law School as well?

         7   A.    I did.

         8   Q.    Now, you made reference to being in the graduate

         9         school at Michigan in economics, tell us about that?

        10   A.    I was in the joint degree program in law and

        11         economic at Michigan, and I finished my master's.

        12         Started during law school, and finished it after I

        13         graduated and emphasized public finance and

        14         industrialization organization.

        15   Q.    Just to be clear, you then were working on a

        16         master's degree in economics while you were in law

        17         school?

        18   A.    Yes.

        19   Q.    Some would think of that as being at glutton for

        20         punishment.

        21   A.    I enjoined it.

        22   Q.    Let's talk about your employment after you completed

        23         your formal education.  What did you do after you

        24         graduated from Michigan and you earned your law

        25         degree?





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    11




         1   A.    I became a law clerk for Judge Overdorf in the

         2         United States District Court for the District of

         3         Columbia from '83 to '84.

         4                        And then I was a law clerk at the

         5         Supreme Court of the United States for Justice

         6         Sandra Day O'Connor.

         7                        And then I stayed home with my first

         8         born child for a while, and then I started practice

         9         at Wilmer, Cutler and Pickering in Washington, D.C.

        10         for two years.

        11                        And in 1987, left Wilmer Cutler to

        12         become a faculty member at Michigan Law School.

        13   Q.    What attracted you to teaching law?

        14   A.    After I graduated from law school and before I

        15         graduated from graduate school, I worked as a legal

        16         writing instructor for a year part-time at Michigan

        17         and enjoyed it a great deal.

        18                        And I had professor at Michigan

        19         Alan Smith who kept pestering me and telling me I

        20         would be a better teacher than I was a lawyer.

        21   Q.    And he persuaded you that he was right?

        22   A.    He did.

        23   Q.    When you got to Michigan and started teaching, what

        24         courses did you search over that ten year period?

        25   A.    I always taught civil procedure to first year





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    12




         1         students.  I taught complex litigation.  I taught

         2         insurance law fairly consistently.  I taught

         3         negotiation in drafting.

         4                        And occasional short courses in

         5         ethics, professional responsibility, judging law, in

         6         fact, and different subjects each year.

         7   Q.    Did you hold any administrative positions at any of

         8         the time that you were at the Michigan Law School?

         9   A.    Well, the last two years I was on the faculty of

        10         Michigan, I was the associate dean for Academic

        11         Affairs.

        12   Q.    What were your responsibilities as associate dean

        13         for Academic Affairs?

        14   A.    They were whatever responsibilities were assigned by

        15         the dean.  It was essentially a position as chief

        16         academic officer under the dean.  And include some

        17         responsibility for curriculum, some for teaching and

        18         quality of teaching.

        19                        It included course assignments in

        20         dealing with most problems that came up involving

        21         faculty and students.  Relations between faculty and

        22         students.

        23   Q.    During that time did you have occasion to work with

        24         new and even experienced teachers on the quality of

        25         teaching?





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    13




         1   A.    At the law school?

         2   Q.    Yes.

         3   A.    Yes.  If there was a faculty member in trouble with

         4         teaching for various reasons, I usually dealt with

         5         it.  And I was the law school's representative on

         6         the board of the Center for Research Learning and

         7         Teaching.

         8   Q.    Why were you willing to take on the administrative

         9         position of assistant dean?

        10   A.    I cared about the school a lot, it paid more than a

        11         regular faculty member got.  And I figured given my

        12         compulsiveness on some of the subjects involved in,

        13         particularly the teaching side of Academic Affairs,

        14         I would end up doing it whether I had the title or

        15         not.  So I wanted to do it.

        16   Q.    Now, you have told us that you have been employed

        17         years ago at Wilmer, Cutler & Pickering, and that

        18         you were ten years employed at the University of

        19         Michigan Law School, do those prior associations

        20         affect to any degree at all, your ability to offer

        21         completely candid and honest testimony in this case?

        22   A.    I don't think so.

        23   Q.    Is there any doubt in your mind about that?

        24   A.    No.

        25   Q.    Why did you go on to Vanderbilt, why did you leave





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    14




         1         Michigan and go there?

         2   A.    I was offered the deanship at Vanderbilt and had not

         3         planned on moving from Ann Arbor ever.  It seemed

         4         like an interesting opportunity for me and for my

         5         whole family.  And it's a smaller school and seemed

         6         attractive for that reason.

         7   Q.    Have you taught at any law schools other than

         8         Michigan and Vanderbilt?

         9   A.    Yes.

        10   Q.    Tell us about your other law school teaching?

        11   A.    I have taught as a visiting faculty member at the

        12         University of Pennsylvania Law School in the spring

        13         term of 1997, insurance law and negotiation in

        14         drafting.

        15                        I have been a visiting professor at

        16         the University of Tokyo Law School for the May term

        17         in either 1992 or 1993.

        18                        I have taught most summers in the

        19         last ten years at various universities and centers

        20         in Germany.

        21   Q.    Now, how did you happen to do the teaching at Penn?

        22   A.    The dean of the Penn Law School called and I made a

        23         visit.

        24   Q.    How did you wind up teaching at the University of

        25         Tokyo?





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    15




         1   A.    The Michigan Law School and the Tokyo faculty of law

         2         and politics have an exchange relationship, whereby

         3         professors go back and forth.  And dean at Tokyo and

         4         the dean at Michigan arranged that and asked me to

         5         teach there one summer.

         6   Q.    And how did you happen to teach almost every summer

         7         over the past ten years in Germany?

         8   A.    That is a program arranged by the German American

         9         Bar Association in Germany and various universities

        10         and a foundation in Germany.

        11                        And its always got a stronger

        12         affiliation with a particular professor who is on

        13         the Michigan faculty who asked me to come one of the

        14         early years, and I went and taught American civil

        15         process.  And then they just asking me to come back.

        16   Q.    They liked what you did?

        17   A.    Yes.

        18   Q.    Have you ever received any awards for teaching law?

        19   A.    Yes.

        20   Q.    Tell us about those, if you would?

        21   A.    There's an award for teaching voted by the student

        22         body at Michigan called the Al Hartwright

        23         outstanding teacher award.  That's named after

        24         Al Hartwright who was a great tax teacher and

        25         professor at Michigan, and I was awarded that twice





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    16




         1         while I was teaching at Michigan.

         2                        And in my first year at Vanderbilt,

         3         built there's a similar award, the Paul Hartman

         4         Award, outstanding teaching award that the student

         5         body votes there.  And I was awarded my first year

         6         teaching at Vanderbilt.

         7   Q.    Have you published any articles on teaching law?

         8   A.    Yes.

         9   Q.    Tell us about that?

        10   A.    I have one article entitled Taking Students

        11         Seriously, that's a guide for new law teachers that

        12         is published in the Journal of Legal Education.

        13                        I have written an annotated

        14         bibliography for law teachers that's been put out as

        15         a pamphlet and its materials by the American

        16         Association of Law Schools.

        17   Q.    What is contained in the bibliography?

        18   A.    It's an annotated survey of books and articles about

        19         law school teaching back 50 to a hundred years, not

        20         much back that far.  But what the subject matter is

        21         and commentary on it, and its helpfulness.

        22   Q.    And you made reference to the American Association

        23         of Law Schools, just explain to Judge Friedman and

        24         the rest of us what that is?

        25   A.    It's a professional association of law schools,





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    17




         1         about 180 American law schools.  It's an

         2         organization that organizes the annual conference of

         3         law professors and that oversees professional

         4         development programs for law professors.

         5   Q.    What does the standing of the American Association

         6         of Law Schools say in the academic community

         7         nationally?

         8   A.    To the extent there's an academic association for

         9         law professors, it is the equivalent of the American

        10         Economic Association for economists.

        11   Q.    Changing gears just a little bit.  Have you served

        12         as editor of any publications that deal with the

        13         teaching of law?

        14   A.    Yes.

        15   Q.    What have you done?

        16   A.    I'm the editor of, co-editor with a colleague of the

        17         Journal of Legal Education.

        18   Q.    And who publishes that?

        19   A.    That is the professional journal of the American

        20         Association of Law Schools.

        21   Q.    About how many manuscripts do you have to read in a

        22         year to do your work properly as editor?

        23   A.    About 200.

        24   Q.    Is it likely that there are many manuscripts that

        25         are developed concerning the teaching of law that





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    18




         1         you wouldn't reach in the course of a year?

         2   A.    No.  There would be very few.

         3   Q.    Have you made any presentations around the country

         4         about how to teach law?

         5   A.    Yes.

         6   Q.    What have you done in that regard?

         7   A.    I for ten years almost every year, I taught at the

         8         New Law Teachers Conference, which is an annual

         9         conference for people entering the legal teaching

        10         profession in various capacities.

        11                        Giving an opening address, closing

        12         address, being a discussion leader or a lecturer.  I

        13         have taught experienced law teachers at the

        14         occasional conferences that are held for experienced

        15         law teachers explicitly on law teaching.  Of which

        16         there's another one coming this summer which I'm

        17         speaking at.

        18                        And I have spoken, when requested, to

        19         various law faculties and non-law faculties in the

        20         United States.

        21   Q.    Tell us some the law faculties that you have

        22         addressed?

        23   A.    I led the faculty retreat on law teaching at the

        24         Notre Dame Law School, I think that was in 1998.

        25         I've been asked by Wake Forest University Law School





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    19




         1         to lead their retreat and talk to them about law

         2         teaching, in the future of law teaching next month.

         3                        I have spoken to the University of

         4         South Dakota university faculty, including the law

         5         faculty on teaching.  I think that's all I can

         6         recall.

         7   Q.    That's good.  Are you working on a book?

         8   A.    Yes.

         9   Q.    What is the book?

        10   A.    Well, I'm working on two books.  One is a guide book

        11         for insurance defense counsel.  And one is a book

        12         entitled Teaching Across a Career.

        13   Q.    And what is the latter book about?

        14   A.    It's a book about the fact that most advice for

        15         teachers is less helpful for the experienced

        16         teachers, because it assumes that teaching is

        17         something you learn once like riding a bicycle and

        18         then you've got it and never need to change or grow.

        19   Q.    And you find that it isn't like learning to ride a

        20         bicycle?

        21   A.    No, I don't find it like riding a bicycle.

        22   Q.    What is it like?

        23   A.    I teach civil procedure, it's like preparing for a

        24         different summary judgment motion everyday in a

        25         different area of substantive law.





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    20




         1   Q.    Well, that would be challenging?

         2   A.    Yes.

         3   Q.    Are you doing some work with the Carnegie Foundation

         4         as we speak?

         5   A.    Yes.

         6   Q.    Would you tell us what you're doing with the

         7         Carnegie gee foundation?

         8   A.    The Carnegie Foundation for the advancement of

         9         teaching is a nonprofit organization in the United

        10         States, that's the most rigorous in paying attention

        11         to teaching methods and their improvements, and has

        12         been that way for many years.

        13                        It has a project on teaching across

        14         the professions, which at the moment is attempting

        15         to identify the state of the art of teaching in

        16         profession schools, law, medicine, business,

        17         engineering and divinity.

        18                        And their first year of their study

        19         last year was law schools.  And I worked with the

        20         professionals working on that study including Judith

        21         Wagner in helping them identify a cross section of

        22         American law schools to visit for a three day

        23         periods each.

        24                        And they visited Vanderbilt as part

        25         of that, and spent four days evaluating teaching at





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    21




         1         Vanderbilt Law School.

         2   Q.    Is this project a result in a report?

         3   A.    Yes, it is.

         4   Q.    And when is that expected?

         5   A.    It was expected several months ago, it has not come

         6         out yet.  I'm not in charge or responsible for

         7         writing the report.

         8   Q.    So the answer is anytime now?

         9   A.    Yes, any week now.

        10   Q.    Are you involved in something called the Advisory

        11         Board for the Center of Teaching at Vanderbilt?

        12   A.    Yes.

        13   Q.    What is that?

        14   A.    Vanderbilt has an education school, Peabody's

        15         College which is very good and separate from that.

        16         But connected to it is a center for teaching which

        17         focuses across the university on the quality of

        18         teaching in the various schools of the university.

        19                        And it put on programs, professional

        20         development programs for faculty at Vanderbilt and

        21         graduate students.  And it also addresses problems

        22         of substandard performance and evaluation of

        23         teaching.

        24   Q.    Now, you were asked to serve as an expert witness in

        25         this case on behalf of the Michigan Law School, is





                          GRUTTER -vs- BOLLINGER, ET AL


 
                                                                    22




         1         that right?

         2   A.    In 1997, I think, yes.

         3   Q.    And did you prepare expert reports in connection

         4         with your work?

         5   A.    Yes.

         6   Q.    I think you have documents that have been marked

         7         Exhibits 153 through 155 right there in the witness

         8         box, am I right about that?

         9   A.    Yes.

        10   Q.    Tell me what Exhibit 153 is?

        11   A.    It is the expert, the first expert report I wrote.

        12   Q.    And what date does it bear?

        13   A.    December 15, 1998.

        14   Q.    What is Exhibit 154?

        15   A.    It is the first supplemental expert report I wrote.

        16   Q.    What is the date of Exhibit 154?

        17   A.    February 25, 2000.

        18   Q.    And what is Exhibit 155?

        19   A.    It is the second supplemental expert report I wrote.

        20                        MR. KESSLER:  Your Honor, we offer

        21         all three exhibits at this time.

        22                        MR. PURDY:  Your Honor, we would

        23         object on relevance grounds.

        24                        THE COURT:  You've got to speak up,

        25         Mr. Purdy.





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         1                        MR. PURDY:  I apologize.  We will

         2         object on relevance ground for the reasons we set

         3         forth in our earlier motion.  Which we believe are

         4         directed precisely on the issue of diversity, which

         5         is not a factual issue before the court.  We object

         6         on relevance.

         7                        MR. KESSLER:  Well, our position is

         8         just the same, your Honor, as we will develop this

         9         morning.  These reports concern the issue of

        10         critical mass in particular, which has been a

        11         subject of constant inquiry by the Plaintiff

        12         throughout the trial, and an issue of constant

        13         inquiry by the law school.

        14                        THE COURT:  Well, we call the dean,

        15         we had some discussion and the defense had indicated

        16         they were not calling him as expert, or as the

        17         witness in the issue of diversity and that's why

        18         we're here today.

        19                        I'll admit them for the same reason I

        20         have admitted a lot of other things.  First of all,

        21         I have read them all because they have all been

        22         attached to the motions for summary judgment in this

        23         matter, so there's no secret what they have to say.

        24                        The relevance, I think that much of

        25         it is not relevant to the issues that we're trying





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         1         here today.  But it's just as easy to admit them and

         2         give them weight if they need some.

         3                        MR. KESSLER:  Thank you.

         4   BY MR. KESSLER:

         5   Q.    Are you being compensated for your services as an

         6         expert in the case?

         7   A.    I am being reimbursed for my expenses of coming out

         8         here.

         9   Q.    Are you being paid a fee?

        10   A.    No.

        11   Q.    Have you testified as an expert in any other cases?

        12   A.    Yes, I have.

        13   Q.    Just generally, what have you been involved in?

        14   A.    All of them have been insurance cases, mostly

        15         insurance coverage cases.  Particularly concerning

        16         insurance coverage of various tort liabilities.

        17   Q.    And about how many times have you testified as an

        18         expert?

        19   A.    I think I have been deposed eight times to ten times

        20         in fourteen years of teaching.  And I testified in

        21         court three or four times.

        22   Q.    Now, Judge Friedman has made reference to this

        23         previously and again this morning.

        24                        Have you served as a court appointed

        25         expert in the past?





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         1   A.    Yes, I have.

         2   Q.    Tell us what you have done, just in a general way?

         3   A.    In Tennessee I have been appointed as a mediator in

         4         insurance coverage disputes.  In Michigan I have

         5         been appointed, including in this court, to--I'm not

         6         sure if it's as a mediator or court appointed

         7         expert, to attempt to reach settlement of insurance

         8         dispute and reinsurance disputes between insurance

         9         companies and insurers.

        10   Q.    Insurance law is one of your substantive areas of

        11         expertise?

        12   A.    Yes, it is.

        13   Q.    What is the subject of your original expert report

        14         in this case?

        15   A.    It was prepared two years ago and it was on the

        16         effect of having meaningful numbers of minority

        17         students on the quality of the pedagogy in the law

        18         school.

        19   Q.    What was your general conclusion?

        20   A.    As the last paragraph of the report says it was--my

        21         general conclusion is, still is my conclusion is

        22         that a law school without significant representation

        23         of minority students in the student body, will

        24         provide a significantly poorer education than one

        25         that is blessed by such representation.





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         1                        And that in particular lawyers

         2         trained in racially homogeneous law schools will be

         3         ill equipped to serve the functions that the best

         4         lawyers have to serve in society.

         5                        MR. PURDY:  Excuse me, your Honor, I

         6         don't want to stand up and be interrupted, but may I

         7         just have a standing objection to any testimony that

         8         relates to the benefits of diversity.

         9                        Because as we said, we're not

        10         contesting that issue, and I believe what he just

        11         recited is precisely on that subject.

        12                        THE COURT:  You have a standing

        13         objection.  And, Mr. Kessler, I'm going to give you

        14         some leeway because I think it's necessary, but try

        15         to stick to the issues.

        16                        MR. KESSLER:  I appreciate that.

        17         What is going to be developed here is that--

        18                        THE COURT:  That's fine.  I'm going

        19         to give you some leeway.

        20                        MR. KESSLER:  Fine, okay.

        21   BY MR. KESSLER:

        22   Q.    The first supplemental report, what was that about?

        23   A.    That was the one a year ago, it was about--there was

        24         empirical research that occurred subsequent to my

        25         first report on faculty and student views on the





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         1         effect of significant numbers of minority students

         2         in the law school classroom.  And it was how that

         3         new research effected my earlier opinions.

         4   Q.    And how did it effect your earlier opinion?

         5   A.    It confirmed some of them.

         6   Q.    What about the second supplemental report, the one

         7         that you prepared and we filed recently, what was

         8         that about?

         9   A.    That was in the last two weeks, and that was you

        10         provided me the Raudenbush study which was much more

        11         specifically concerned with the admissions policies

        12         at the University of Michigan Law School, and the

        13         effect of those policies on racial composition of

        14         the class in various settings.

        15                        And the supplemental report is how

        16         that would have effected or did effect my original

        17         opinions.

        18   Q.    What was the overall conclusion that you reached in

        19         this second supplemental report?

        20   A.    I concluded that the positive effects of a racially

        21         heterogeneous class that I described in any original

        22         report, would be achieved under the existing

        23         admissions policy at the University of Michigan, and

        24         would be unlikely to be achieved under an admissions

        25         policy that did not consider race as a factor in





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         1         admissions.

         2   Q.    Let's talk now about the basis of your overall

         3         opinions.  Tell us what those basis are?

         4   A.    Well, I have taught law for fourteen years every

         5         semester pretty much in various settings.  And when

         6         I say various settings, I mean not just in different

         7         countries or different law schools, but in settings

         8         that are small classes, very large classes, classes

         9         that are racially heterogenous.  Classes that are

        10         not diverse in other senses.

        11                        With no old people, for example, or

        12         older people.  Or classes with all people of one

        13         ethnic background, particularly in Germany.

        14                        And I have talked to many of the law

        15         professors over the years about how the diversity in

        16         the class effects the dynamic in the Socratic

        17         classroom and in the classroom teaching in the skill

        18         setting, particularly negotiation.

        19                        And as I said, I have pretty much

        20         read everything that's been written on law teaching

        21         in the last 50 to a hundred years.

        22                        And so my opinions are based on

        23         everything that I have done and everything that I

        24         have read having to do with the law classroom.

        25   Q.    Are your opinions also based on part in law classes





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         1         that you have observed, but not yourself taught?

         2   A.    Yes.

         3   Q.    How has that come about?

         4   A.    I have watched a lot of law classes taught, most

         5         recently as an accreditor of law schools.  And part

         6         of the accreditation process includes a visit to the

         7         school and an obligation to attend a cross section

         8         of classes being taught in the school.

         9                        And so in the last year I've done the

        10         accreditation visits for the University of Oregon

        11         Law School, and the George Washington University Law

        12         School.  And in each school attended a large number

        13         of classes across the curriculum.

        14   Q.    I have attended a lot of classes that's part of the

        15         peer review or the tenure review process, or renewal

        16         process for faculty at each of the institutions I

        17         have taught at, and including when I was at the

        18         University of Pennsylvania as a visitor.

        19                        And occasionally when I'm giving a

        20         paper or talking in other law schools, I attend

        21         classes as part of that.

        22   Q.    Do you have a reliable estimate of the number of

        23         students that you have taught in the last 14 years?

        24   A.    Yes.

        25   Q.    Tell us what that is?





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         1   A.    I have taught about 2500 students, law students in

         2         the United States.  And another 500 in Germany.

         3   Q.    Now, you indicated that you have been involved in

         4         classes both as a teacher and as an observer that

         5         had various levels of, not only general diversity,

         6         but racial and ethnic diversity, is that right?

         7   A.    Yes.

         8   Q.    You have taught classes where there have been

         9         virtually no minority students?

        10   A.    I've taught students in which there are no minority

        11         students.

        12   Q.    And where there have been very limited numbers of

        13         minority students?

        14   A.    Yes.

        15   Q.    And also where, in your judgment, there have been

        16         meaningful numbers of minority students, is that

        17         right?

        18   A.    Yes.

        19   Q.    And these differing diversity levels have, at least,

        20         in times involved teaching the same subject matter,

        21         is that right?

        22   A.    That's correct.

        23   Q.    What has the subject matter been?

        24   A.    Civil procedure, insurance and negotiation.

        25                        MR. KESSLER:  Your Honor, at this





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         1         time we offer Dean Syverud as an expert on legal

         2         education.

         3                        MR. PURDY:  Your Honor, we have no

         4         objection and do not doubt Dean Syverud's expertise

         5         on legal education.

         6                        But I think just from what we have

         7         heard, again, this is going to a subject that

         8         everything we've heard this morning, going to a

         9         subject that has nothing to do with the issue that's

        10         before this court.

        11                        THE COURT:  It appears that's

        12         correct, Mr. Kessler.  And again, I certainly

        13         believe that he's an expert in that area, but I'm

        14         not sure what relevance that area has.  But I'll

        15         give it a little--

        16                        MR. KESSLER:  (Interposing)  We're

        17         getting right to the heart of it.

        18                        THE COURT:  Get right to the heart of

        19         it.

        20                        MR. KESSLER:  This is background that

        21         I think the Court needed--

        22                        THE COURT:  (Interposing)  Diversity

        23         isn't the issue here.

        24                        MR. KESSLER:  Right.

        25





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         1   BY MR. KESSLER:

         2   Q.    We're going to talk now about critical mass,

         3         Dean Syverud, and in that context I want to read to

         4         you from Exhibit 4.  Exhibit 4 is the 1992 Michigan

         5         Law School policy that is being challenged here.

         6                        At the bottom of page nine of that

         7         policy of Exhibit 4, it reads, "The second sort of

         8         justification for admitting students with indices

         9         relatively far from the upper right-hand corner, is

        10         that this may help achieve that diversity which has

        11         the potential to enrich everyone's education and

        12         thus make a law school stronger than the sum of its

        13         parts.

        14                        In particular we seek to admit

        15         students with distinctive prospectives and

        16         experiences, as well as students who are

        17         particularly likely to assume the kinds of

        18         leadership roles in the bar, and make the kinds of

        19         contributions to society discussed in the

        20         introduction of this report.

        21                        We reiterate, however, that no

        22         student should be admitted unless his or her file as

        23         a whole leads us to expect him or her to do well

        24         enough to graduate without serious academic

        25         problems."





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         1                        And then on page twelve of Exhibit 4

         2         continuing with the quote.  "There is, however, a

         3         commitment to one particular type of diversity that

         4         the law school has long had and which should

         5         continues.

         6                        This is a commitment to racial and

         7         ethnic diversity with special reference to the

         8         inclusion of students from groups which have been

         9         historically discriminated against like African

        10         Americans, Hispanics and Native Americans, who

        11         without this commitment might not be represented in

        12         our student body in meaningful numbers.

        13                        These students are particularly

        14         likely to have experiences and prospectives of

        15         special importance to our mission.

        16                        Over the past two decades, the law

        17         school has made special efforts to increase the

        18         numbers of such students in the school.

        19                        We believe that the racial and ethnic

        20         diversity that has resulted as made the University

        21         of Michigan Law School a better law school than it

        22         could possibly have been otherwise.

        23                        By enrolling a "critical mass" of

        24         minority students, we have ensured their ability to

        25         make unique contributions to the character of the





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         1         law school, the policies embodied in this document

         2         should ensure that those contributions continue in

         3         the future."

         4                        Do you see that language?

         5   A.    Yes.

         6   Q.    Were you on the University of Michigan Law School

         7         faculty when this policy was adopted in 1992?

         8   A.    Yes.

         9   Q.    Did you vote on whether or not the policy should be

        10         adopted?

        11   A.    Yes.

        12   Q.    How did you vote?

        13   A.    I voted for it.

        14   Q.    Did you believe that you understood the policy when

        15         it was adopted in 1992?

        16   A.    Yes.

        17   Q.    What was your general understanding of the term

        18         critical mass as used in the policy?

        19   A.    My general understanding was it meant that there

        20         would be meaningful numbers of minority students,

        21         and particularly African American and Hispanic

        22         students, so as to achieve pedagogical objectives in

        23         the classroom.

        24   Q.    Now, I understand, and we're not going to dwell on

        25         this, that initially prior to this policy at least,





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         1         you were skeptical about admissions policies like

         2         Michigan's that considered race.

         3                        Did the inclusion of the reference to

         4         critical mass in the 1992 policy help you change

         5         your view?

         6   A.    Yes.

         7   Q.    Tell us in what way critical mass effected you're

         8         thinking?

         9   A.    I mean I have to say that I didn't understand the

        10         word critical mass to have a huge significance

        11         separate from its reference, the back reference to

        12         meaningful numbers in the paragraph above.

        13                        And it meant to me, and still means

        14         to me, that something different than attempting

        15         through social engineering to change society, which

        16         was not a reason for me to support or believe in

        17         this document.

        18                        It meant, instead, a direct

        19         relationship for me to what happens in the law

        20         school classroom, and whether I can make the law

        21         school classroom work as best as it can.

        22                        And critical mass for me, or

        23         meaningful numbers means that the dynamic in the law

        24         school classroom is different depending on the

        25         degree to which there are meaningful numbers of





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         1         minority students in the classes I teach.

         2   Q.    Do some of the conclusions that you have rendered as

         3         an expert in this case, bear on the critical mass

         4         question?

         5   A.    Some do.

         6   Q.    All right.  Tell us just in a general way what those

         7         conclusions are?

         8   A.    I mean my original report was prepared when--I

         9         gather the issues in this case were different, and I

        10         gather they have been narrowed and I haven't been

        11         following all the legal developments in the case

        12         closely, I apologize.

        13   Q.    Understood.

        14   A.    It's not covered extensively in Nashville, I'm happy

        15         to say.  So, you have told me a little bit in the

        16         last 24 hours about what the issues in the case are

        17         now.

        18                        And again, I would say that the

        19         quoted critical mass phrase in the policy meant

        20         little different to me at the time, than talking

        21         about meaningful numbers of minority students in

        22         various classroom settings that I teach in.

        23                        The critical mass or meaningful

        24         numbers matters to my conclusion in this sense.  I

        25         teach and still teach in a very traditional Socratic





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         1         fashion, which involves I take the seating chart in

         2         the class, I throw paper clips on it in front of the

         3         students and I call on the students that the paper

         4         clips fall on.

         5                        And I engage in a series of questions

         6         and answers with the student, four to five students

         7         most classes, based on the material assigned for

         8         that day.

         9                        And my purpose in doing that is to

        10         get a dialogue going in which the students question

        11         deeply their assumptions and provoke other students

        12         to see how many different angles there are in any

        13         question that we address.

        14                        And the critical mass or meaningful

        15         numbers issue is relevant to my conclusions, because

        16         in my experience that dynamic is different within

        17         the class among the students and between me and the

        18         students, when the class is homogeneous.

        19                        When the class has a token minority

        20         student or a token black student or to token

        21         Hispanic student, and when there are enough minority

        22         students, enough black students and enough Hispanic

        23         students that there is a diversity of views and

        24         experiences among the minority students, and among

        25         the Hispanic and black students.





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         1                        So, that everybody in the class

         2         starts looking at people as individuals in their

         3         views and experiences, instead of as races.

         4   Q.    Now, we're offering you today in large part to help

         5         us all understand the concept of critical mass, and

         6         yet I note that none of your reports uses that term,

         7         why not?

         8   A.    I read this policy again for the first time in two

         9         years yesterday.

        10   Q.    The law school policy?

        11   A.    The law school policy.  And I hadn't until yesterday

        12         viewed critical mass as having some meaning

        13         independent of what I have just described.

        14                        As meaningful numbers of minority

        15         students in the actual classroom settings that you

        16         teach in.

        17   Q.    Were you writing about the concept of critical mass

        18         in your reports?

        19   A.    In the sense I have described today as which--I mean

        20         in the sense I have describe it in, are there enough

        21         minority students in my class that they become

        22         individuals rather than representatives of races in

        23         the dialogue among students and with me.

        24   Q.    In your experience as an expert in legal education

        25         in the various settings that you have described, do





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         1         you think that you can quantify in a specific way

         2         what critical mass is?

         3   A.    No.

         4   Q.    Why not?

         5   A.    When you say critical mass or meaningful numbers of

         6         minority students, what the meaningful part is to me

         7         is, are there enough students say, for example,

         8         African American students in a class such that each

         9         of them, in fact, is and, in fact, acts freely to

        10         express a diversity of views.

        11                        And to respond openly to the

        12         questions I give, which are quite tense and

        13         provocative at times.

        14                        And that number isn't the same number

        15         or percentage in every class that I teach, it

        16         depends in part on the individuals.

        17                        I have a class where an

        18         individual--where it's enough to have one student,

        19         because that one student is an extraordinary person,

        20         but not many.

        21   Q.    If you can't quantify the term critical mass in a

        22         reliable way, how do you know it when you have it?

        23   A.    I know when a class is working very well and when

        24         it's flat from a lot of experience.  And in my

        25         experience law professors talk about precisely that,





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         1         year to year and class to class as things go on.

         2                        I know I have a critical mass of

         3         students when in the dialogue I have with students

         4         and they have with each other in the course of civil

         5         procedure or negotiation or whatever I'm teaching,

         6         over the course of the semester regardless of what

         7         the issue is, people are speaking and reacting as

         8         individuals.  And often in very unexpected ways.

         9                        And it's just my experience that in a

        10         class with one or two African American students,

        11         that usually does not happen.

        12                        Instead usually, and again, it's my

        13         experience, usually the African American students

        14         are silent.  Not that they never say anything when I

        15         call on them, but they on numerous issues it's hard

        16         because they don't want to be a spokes person for

        17         their race.  And in particular in some of the issues

        18         I teach.

        19   Q.    If I'm understanding you correctly, you define

        20         critical mass by the presence of certain dynamics

        21         that you have seen as a law school professor, is

        22         that fair?

        23   A.    Yes.

        24   Q.    Let's see if we can understand a little more clearly

        25         what those dynamics are.  You talk about students





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         1         feeling, at least, able to express themselves as

         2         individuals, is that right?

         3   A.    Yes.

         4   Q.    Where critical mass is not present and there are

         5         minorities present in the class, what tends to

         6         happen if they're not silent?

         7   A.    Well, one or two things happens.  One thing that

         8         happens occasionally is that an African American or

         9         a Hispanic student will express views on issues

        10         raised by the facts of the cases that I'm teaching

        11         that tend to be politically correct, expected views.

        12                        And it doesn't accomplish--when I'm

        13         teaching particularly first year students, what I'm

        14         trying to teach them is that they don't know what

        15         people think in advance without asking and

        16         listening.

        17                        Because law students are terrible

        18         listeners and they are very bad at projecting onto

        19         someone views and experiences and knowledge without

        20         first finding out.

        21                        And I'm trying to teach particularly

        22         litigators to listen first.  And so it's a problem

        23         when I want to provoke through my questioning,

        24         students to see how every issue I'm teaching has

        25         different points of view, and there are very strong





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         1         arguments and currently often unexpected arguments.

         2                        And that people from different

         3         backgrounds will come to the same fact settings and

         4         have very unexpectedly different points of view on

         5         it.  And so that requires quite a bit of probing and

         6         pushing of individual students.

         7                        If I have a token African American

         8         student who is by the dynamic of the classroom

         9         articulating what is perceived as what that person

        10         is supposed to say on a particular issue, it doesn't

        11         help with that lesson.

        12                        I'd like to get a diversity of views,

        13         naturally by randomly calling on people among all

        14         the students in the class, so that the lesson is

        15         thought that people are individuals.

        16                        And the token minority student

        17         problem for reasons I confess I don't fully

        18         understand, doesn't produce that.

        19   Q.    How does the presence of critical mass or its

        20         absence in the presence of tokenism impact the

        21         majority students in the class, that is the

        22         Caucasian students?

        23   A.    Well, as I said in my report, I think they get a

        24         much poorer education as a result.

        25   Q.    Why?





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         1   A.    Because they often--I mean my majority students,

         2         when white students have a vast range of

         3         experiences.  And when I call on my white students,

         4         that lesson is often inevitable that they'll get

         5         over the course of a semester's experience with the

         6         white students.

         7                        Because my white students are always

         8         diversed, there's many of them and they have many

         9         experiences.  And I have interesting and tough cases

        10         that I'm teaching on, so the lesson is obvious to

        11         them not to make assumptions they know everything

        12         about every white student in the class by the fact

        13         that they're white.

        14                        They don't learn that lesson

        15         necessarily about other minority students, if there

        16         isn't a range of minority students present.

        17   Q.    In your experience, is there's a relationship in the

        18         classroom between having a critical mass of minority

        19         students, and superficial thinking on the students

        20         part, I mean?

        21   A.    On some questions, yes.

        22   Q.    Explain that?

        23   A.    Well, there are issues having to done with race in

        24         all of my courses, they're usually more subtle and

        25         most colleagues I talk with think or express.





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         1                        They come up with unexpected ways in

         2         all the courses I teach, and race is an issue in

         3         American law and kind of suffuses lots of things, to

         4         much I think.  But it's there and I have to teach it

         5         the way it is.

         6                        It is still to teach cases where race

         7         is an issue in the case, which it often is,

         8         including in insurance law.  And have everybody

         9         talking about the issue as if they're Margaret Meade

        10         studying the Samoans.

        11                        I don't know how else to describe

        12         than that.  Everybody is trying to project onto this

        13         other group of people who aren't there.

        14   Q.    In a way that has an unreality to it, is that what

        15         you're suggesting?

        16   A.    Yes.

        17   Q.    Is there a reason, you made reference a number of

        18         times to the Socratic method and your use of the

        19         Socratic method in classes.

        20                        Is there a reason why having a

        21         critical mass is especially significant in

        22         connection with the Socratic method?

        23   A.    Yes.

        24   Q.    Explain that, if you would?

        25   A.    I mean there's a lot of lawyers present, the point





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         1         of the Socratic method is that the students learn as

         2         much from each other as they do from the teacher.

         3                        And from the dialectic of watching

         4         how the students respond to questions and

         5         interacting--they learn from each other answers as

         6         much as from the questions the professor ask, or

         7         lectures from the professor.

         8                        And so the strength of the Socratic

         9         method in part trends on active preparation and

        10         engagement involvement in the students in the class.

        11                        And the quality of their answers is

        12         often a function of the range of knowledge and

        13         experience and background that the students bring to

        14         bear in answering those questions.

        15                        And one relevant set of experiences

        16         is related to race.  It's not the only relevant set

        17         of experiences that I value in a Socratic classroom,

        18         but it is one.

        19   Q.    You have been discussing critical mass in the

        20         context of particular dynamics that you see in the

        21         classroom, and you don't see those dynamics when

        22         it's not there.

        23                        Can you give us just one example of

        24         what you have seen that would be a very positive

        25         indicator that critical mass is present, versus what





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         1         you would have seen had it been absent?

         2   A.    Yes.  And we discussed this yesterday.  I taught

         3         insurance law most years at Michigan, and for many

         4         years I taught insurance law, including a couple of

         5         years, to extremely homogeneous classes racially.

         6                        And taught in particular an issue in

         7         law and economics that concerns whether a tort law

         8         should provide damages for pain and suffering in the

         9         context of the death of a child when the parents are

        10         suing.

        11                        And there's a decent literature on

        12         that question from economists in law and economics

        13         that not only suggest that that should not be the

        14         case, because parents don't choose of their own

        15         volition to go out and by life insurance on their

        16         children.

        17                        In hence, since in private markets

        18         they don't choose to do that.  It would be odd for

        19         the legal system to provide it mandatorily in a pain

        20         and suffering context.

        21                        And I taught that literature as part

        22         of a discussion day in insurance law for several

        23         years.

        24                        And then one year I taught the same

        25         body of reading, and I had an African American woman





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         1         in my class, and that was a year that I had a what

         2         we've been calling a critical mass of African

         3         American students in my class, five I think.

         4                        But I had an African American student

         5         interrupt me during class and say, I don't

         6         understand, people do buy life insurance on their

         7         children.

         8                        And I had a dialogue with that

         9         student about her experience with child life

        10         insurance, which I embarrassingly confessed I did

        11         not know existed at that point.

        12                        And it turned out, and I discovered

        13         through subsequent work in talking with other

        14         professors and with sociologists, that, in fact, the

        15         majority of children in the United States are

        16         covered by child life insurance policies.

        17                        But child life insurance is something

        18         pretty much, and at that point, entirely obviously

        19         unknown to affluent parents.

        20                        And it's heavily phenomenon currently

        21         among African American parents and it is heavily

        22         bought.

        23                        And, of course, you know, then I

        24         embarrassingly researched it and discovered it went

        25         back a hundred years and is a central feature of the





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         1         Tree Grows in Brooklyn and various other contexts.

         2                        But I didn't know that.  I had no

         3         experience with it.  Child life insurance was

         4         something I didn't think existed because law

         5         economic scholarships said it didn't exist.

         6                        And it led me subsequently to change

         7         my teaching materials to include writing on child

         8         life insurance, and changed kind of how I looked at

         9         life insurance in the classroom.

        10                        THE COURT:  And you changed that only

        11         because you had African American students in your

        12         class?

        13   A.    It's hard to say.  I mean it is an African American

        14         student that bought it up.

        15                        THE COURT:  That raised it.

        16   A.    So it's hard to say if that would have happened

        17         otherwise.  I don't know.

        18   BY MR. KESSLER:

        19   Q.    But as a follow-up to the Court's question, do you

        20         believe that based on your experience this African

        21         American student would have felt comfortable

        22         interrupting you and raising this point, that in

        23         turn, promoted the discussion and the other changes

        24         that you have described?

        25                        MR. PURDY:  Your Honor, I have to





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         1         object.

         2                        THE COURT:  Sustained.

         3   BY MR. KESSLER:

         4   Q.    Can't a good law professor make up for the lack of

         5         racial diversity in a classroom where there isn't a

         6         critical mass present?

         7   A.    I think a good law professor could try, and I have

         8         in various settings.  And I haven't succeeded.

         9   Q.    Have you discussed this point with your colleagues?

        10   A.    Yes.

        11   Q.    And what is your view based on those discussions, is

        12         this just a problem that you have, or is this a

        13         general problem?

        14   A.    Well, it's not a general problem at the moment,

        15         because most law schools right now have what we

        16         describe as a critical mass of minority students.

        17                        The context I discussed today is

        18         particularly discussing with the people I teach with

        19         in Germany, where the classes I teach are extremely

        20         homogeneous, very bright students, all German

        21         obviously and all of German nationality.

        22                        And it is a problem, because teaching

        23         American case law to Germans, a lot of it is

        24         incomprehensible.  Not because the doctrine is

        25         incomprehensible, but because the underlined facts





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         1         and issues are different.

         2                        And I have tried to recreate the

         3         dynamic of a diverse Socratic classroom for those

         4         students, by myself asserting the views that I think

         5         a diverse group of, say, African American students

         6         would assert, or a diverse group of older students.

         7                        Because many of the students in

         8         Germany tend to be in the same age group.  And it

         9         just doesn't work well.  The professor is lecturing

        10         instead of the students--drawing it out of the

        11         students own experiences.

        12   Q.    You have said both in your report and today, that

        13         you really can't achieve this array of viewpoints

        14         and deep thinking that you have talked about without

        15         having racial diversity to a meaningful degree, or a

        16         critical mass in the classroom.

        17                        Isn't that just a way of saying that

        18         race is a proxy for viewpoint?

        19   A.    That's what I would have thought when I started

        20         teaching, and that's what I found and really did

        21         find affirmative action policies troubling and

        22         patronizing to some degree.

        23                        And as I have suggested by my

        24         testimony, considering race in admissions in order

        25         to get a particular viewpoint--a particular





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         1         designated approved viewpoint into the classroom is

         2         what worried me about race and admissions.

         3                        And continues to, in my view, be an

         4         inappropriately wrong basis for this kind of policy.

         5         I don't view it that way now after teaching for

         6         fourteen years, and I guess it's based on my

         7         experience in the classroom that I don't view it

         8         as--that's not how I view it.

         9                        I view it as basis for in some way

        10         doing the opposite, which is educating future

        11         lawyers that there is not a racial point of view

        12         that they can assume one has because of ones race.

        13                        And so that it is the case that many

        14         of my African American students have what people

        15         would presume would be their views on some issues in

        16         law ahead of time, but it's also the case that I get

        17         very unexpected points of view and incredible class

        18         discussion and analysis that follows from it.  And

        19         that's why I value it.

        20   Q.    I want to change gears here, we're coming down the

        21         home stretch, your Honor.

        22                        THE COURT:  All right.

        23   BY MR. KESSLER:

        24   Q.    You have read the recent supplemental report by

        25         Professor Raudenbush, that's Exhibit 150, you made





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         1         reference to it before.  I want to ask you a couple

         2         of questions that are based on Professor

         3         Raudenbush's report and his conclusions.

         4                        He concluded, among other things in

         5         his report, that Michigan law schools minority

         6         enrollment would only be about four percent if

         7         Michigan adopted a race neutral policy, as compared

         8         with roughly 15 percent under the current policy,

         9         you recall that?

        10   A.    Yes.

        11   Q.    He also concluded that a first year law section at

        12         Michigan, which you probably recall involves about

        13         85 students, would only have a 67 percent

        14         probability of enrolling three or more minority

        15         students as compared with a hundred percent

        16         probability of that happening under the current

        17         policy, do you recall that?

        18   A.    I recall that with reference to African American

        19         students.

        20   Q.    Okay.  And I want to give you just a couple of more

        21         statistics from his report.  He also concluded that

        22         a first year half section, which is about 42

        23         students, would only have a 24 percent probability

        24         of them gaining three or four minority students

        25         under a race neutral policy, compared with a 96





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         1         percent probability of that happening under the

         2         current policy.

         3   A.    Yes.

         4   Q.    He also concluded--well, let me ask you one

         5         question.

         6                        Does the presence of just three

         7         minority students in a class of either 85 or 42,

         8         does that represent fairly modest numbers?

         9   A.    I'm sorry.  When you minority students, you're

        10         referring to African Americans, Hispanics?

        11   Q.    Underrepresented minorities, African Americans,

        12         Hispanics, Native Americans and so on?

        13   A.    And can you repeat the question?

        14   Q.    The question is whether having three minorities

        15         overall in classes of either 85 or 42, are those

        16         relatively modest numbers of minorities?

        17   A.    Well, their modest in the sense of achieving the

        18         pedagogical side that I talked about in my report,

        19         yes.

        20   Q.    Let me give you just a couple of more conclusions

        21         that Professor Raudenbush drew.

        22                        He also concluded that the

        23         probability of enrolling three African Americans or

        24         three Hispanics, so it's either or, in the 85, the

        25         large student section, a hundred percent under the





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         1         existing policy, but only 49 percent under a race

         2         neutral policy.

         3                        And lastly, he did make other

         4         conclusions, but I'm not going to go through all of

         5         them just in the interest of time.

         6                        He concluded that the probability of

         7         enrolling three African Americans or three Hispanics

         8         in the half section, the 42 student section, is 89

         9         percent under the current policy, but only 13

        10         percent under a race neutral policy.

        11                        And my question to you is, based on

        12         those conclusions that Professor Raudenbush drew and

        13         assuming that they are correct, does that indicate

        14         to you that a race neutral policy at the University

        15         of Michigan Law School wouldn't produce a critical

        16         mass of minority students?

        17   A.    It indicates to me that it would not.

        18   Q.    Based on Professor Raudenbush's analysis, and again,

        19         assuming that it is valid and correct.  Do you

        20         believe that the University of Michigan Law School

        21         has considered race only to the extent necessary to

        22         achieve a critical mass of minority students?

        23                        MR. PURDY:  Object on foundation.

        24                        THE COURT:  Sustained.

        25





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         1   BY MR. KESSLER:

         2   Q.    Would you encourage a student--my last question.

         3         Would you encourage a student who is interested in

         4         attending law school, to pursue legal education in a

         5         school that was not committed to diversity in

         6         general, and did not enroll a critical mass of

         7         minority students?

         8   A.    I would and, indeed, frequently counsel students on

         9         precisely that issue.  And I advise them not to go

        10         to schools unless they have a meaningful number of

        11         minority students in the classroom settings.

        12                        And I do that for the reasons given

        13         in the report.  I am skeptical they will get the

        14         best education that they can get if they don't have

        15         that advantage.

        16                        MR. KESSLER:  Thank you, Dean

        17         Syverud, I have nothing further.

        18                        MS. MASSIE:  Nothing for the

        19         Intervenors.

        20                        THE COURT:  Mr. Purdy.

        21                       CROSS-EXAMINATION

        22   BY MR. PURDY:

        23   Q.    Good morning, Dean Syverud.

        24   A.    Good morning.

        25   Q.    My name is Larry Purdy and I represent the





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         1         Plaintiff, we met this morning for the first time

         2         before court opened, you recall?

         3   A.    I recall.

         4   Q.    Okay.  You mentioned that you have consulted with

         5         the University of Oregon Law School, is that

         6         correct?

         7   A.    No, I was on the accreditation team for the American

         8         Bar Association that was reaccrediting the

         9         University of Oregon Law School.

        10   Q.    You think the University of Oregon Law School offers

        11         an outstanding legal education to its students?

        12   A.    I think it is a good legal education for its

        13         students.

        14   Q.    Do you consider the Oregon Law School to have a

        15         critical mass of underrepresented minority students

        16         in the student body?

        17   A.    I do not.

        18   Q.    Nevertheless, you consider that it offers a good

        19         education to the law students that attend?

        20   A.    I do.

        21   Q.    The University of South Dakota, what was your

        22         affiliation with the University of South Dakota?

        23   A.    I was asked by the Dean to speak to the faculty and

        24         students there.

        25   Q.    Do you consider the University of South Dakota to do





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         1         a good job of offering a legal education to the

         2         students that attend that law school?

         3   A.    I do.

         4   Q.    If a student from South Dakota said, Dean Syverud,

         5         should I attend the University of South Dakota Law

         6         School, would you tell him or her not to go there

         7         because in your view the racial mix might not be up

         8         to what you would expect?

         9   A.    I would ask that student about that student's career

        10         goals, and my advice would depend on those.  My

        11         family is from South Dakota, and South Dakota is not

        12         a racially diverse place.

        13                        It's kind of like Scandinavian,

        14         German with the exception of parts of Sioux Falls.

        15         And I would and actually was asked by students when

        16         I was at South Dakota about this issue, because it's

        17         a quite homogeneous law school in the racial sense.

        18         Not in the experiential background of the students.

        19                        And if a student, a potential law

        20         student wanted to practice law in settings around

        21         the United States where there is a great deal of

        22         racial diversity, or practice law internationally, I

        23         would not advise that student to go to the

        24         University of South Dakota Law School, for the

        25         reasons you gave, among others.





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         1   Q.    Let me so we all understand.  If you have a student

         2         in South Dakota and they wanted to attend the

         3         University of South Dakota Law School, but had an

         4         aspiration of practicing law, say, on the east coast

         5         or the west coast, it would be your advice that they

         6         not attend that law school which you have already

         7         told us you believe gives a good education, a good

         8         legal education, correct?

         9   A.    I testified it's a good legal education, yes.

        10   Q.    But because of your view of the lack of critical

        11         mass, because I assume we can all agree, there is a

        12         lack of critical mass in minority students in South

        13         Dakota?

        14   A.    Yes, there are a decent number of Native American

        15         students at the University of South Dakota Law

        16         School, because of the Native American population in

        17         South Dakota.  There is a very small percentage of

        18         African Americans or Hispanic students.

        19   Q.    As a matter of fact, Native American students can

        20         add a tremendous amount of diversity to a law

        21         school, can they not?

        22   A.    Yes, they can.

        23   Q.    How many Native Americans students attend Vanderbilt

        24         Law School?

        25   A.    Almost none.  But your question was would I advise





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         1         the person to go to the University of South Dakota

         2         Law School, and I answer is between equally situated

         3         law schools, and there would be choices for such a

         4         student.

         5                        Including schools like William

         6         Mitchell in Minneapolis or other schools in the

         7         region, that are more racially diversed in the

         8         senses that we've described.

         9                        And I seriously would advise that

        10         student to look very closely at those alternatives.

        11         Not if that person wants to practice on the coast,

        12         but if that person has a goal of practicing in

        13         Minneapolis.  And I did so advise a student.

        14   Q.    My ala mater would be pleased to hear that.

        15   A.    I'm sorry, I didn't know that.

        16   Q.    That's all right, I'm sure they'll be proud to hear

        17         that you would advise students to go there.

        18   A.    Okay.

        19   Q.    I want to go back because there are many state

        20         residents in South Dakota who, for a variety of

        21         reasons, socioeconomic reasons, family reasons,

        22         would prefer or may, indeed, be required to attend

        23         law school in South Dakota, would you agree?

        24   A.    Yes.

        25   Q.    And are you suggesting, however, that a student who





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         1         attends law school in South Dakota is going to be

         2         somehow unprepared to go out and practice law on the

         3         east coast or the west coast, or in Minneapolis, or

         4         Detroit or Chicago, simply because of the racial mix

         5         that may be present in his or her law school class?

         6   A.    No, I'm not suggesting that.

         7   Q.    You had a fascinating question earlier about

         8         learning something about the extent to which parents

         9         may buy life insurance for children, do you recall

        10         that?

        11   A.    Yes, I do.

        12   Q.    Dean Syverud, isn't it true that had that issue been

        13         brought to your issue by a white student or an Asian

        14         student, it still would have been a surprise to you?

        15   A.    Yes.  It just wasn't, so.

        16   Q.    But the color, or the ethnicity of the student who

        17         brought that to your attention, had nothing to do

        18         with what you learned from that advice, correct?

        19   A.    That is correct.  And it has been my experience over

        20         time that the experiential base of students is

        21         diverse among all students, not just in racial

        22         minorities.

        23                        But it has been my experience that a

        24         critical mass of minority students does bring an

        25         experiential base that tends not to come out





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         1         otherwise.

         2   Q.    You have raised the example of sometimes where there

         3         might be, say, just one and let's use for example an

         4         African American student in the class.

         5                        That if asked a question, it was your

         6         view or your feeling that a black or, say, Hispanic

         7         would, and I believe I wrote this down and I

         8         apologize if I didn't get it correctly.

         9                        That they had race views that tend to

        10         be the politically correct or the expected views, do

        11         you recall that testimony?

        12   A.    I recall testifying that the more common response is

        13         silence or not kind of probing examination of

        14         individual views.  And if not that, then the next

        15         most common response in a token situation, is the

        16         politically correct view.

        17   Q.    Do you assume that there are expected views from

        18         black students or Hispanic students?

        19   A.    That's a good question.  I guess from my experience

        20         of teaching and particularly talking with students

        21         inside and outside class, I have become increasingly

        22         convinced that many white students have projected

        23         expected views that minority students will have

        24         uncertain questions, yes.

        25   Q.    Are you generalizing now as to white students, in





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         1         other words, you assume that most white students

         2         expect a particular view from a minority?

         3   A.    I'm not assuming anything, I'm basing it on

         4         conversations with my white students.

         5   Q.    But there are white students, I'm sure, who don't

         6         share that view?

         7   A.    Yes, that's very correct.

         8   Q.    And wouldn't it be true that if we didn't walk into

         9         a classroom with an expected view from anyone based

        10         on their race, we wouldn't even have this issue,

        11         wouldn't that be true?

        12   A.    If no one would walk into the room, no student or

        13         teacher went in expecting what the views and

        14         experiences of the people in the class would be, I

        15         agree we wouldn't have this issue.

        16   Q.    In other words--I apologize, I didn't mean to talk

        17         over you.

        18   A.    That's okay.

        19   Q.    In other words, would you agree with this, Dean

        20         Syverud, if we respected one other as individuals

        21         and not as representatives of our race, there would

        22         be no expected view, correct?

        23   A.    Yes, and that's exactly one of the primary goals I'm

        24         trying to get to in my teaching.  Your question

        25         presumes that kind of the mental attitude of the





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         1         professor going in, can kind of produce that

         2         atmosphere in the classroom.

         3                        And that's the way I started

         4         teaching, that's the presumption I started teaching

         5         with.  And I guess I have a different presumption

         6         now from a lot of experienced teaching.

         7                        That it isn't just me--it isn't

         8         just--it isn't something the professor automatically

         9         causes to happen by attitude of the teacher in the

        10         classroom.

        11                        It requires a dialogue among the

        12         students over a period of time that doesn't consist

        13         of kind of self righteous lecturing of that point of

        14         view by the professor, but as it emerge from

        15         understanding of hearing everybody talk about their

        16         points of view during the course of the semester.

        17                        And that's hard to make happen in a

        18         classroom that doesn't have significant numbers of

        19         minority students.

        20   Q.    You make it sound, and please correct me if I'm

        21         wrong.  But you make it sound as if the vast

        22         majority of law students that come into our very

        23         fine law schools today, have these assumptions about

        24         other people that somehow race or ethnicity dictates

        25         their views, is that your assumption?





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         1   A.    I guess I'm saying something different, which is

         2         that for reasons I don't understand the degree to

         3         which people prior to law school, law students I

         4         have will come in, listen to each other before

         5         talking and projecting assumptions about views is a

         6         problem.  It really is a problem.

         7                        A degree to which by the time

         8         students get to law school, they have categorized

         9         people.  It has increasingly bothered me.

        10                        I guess that's a criticism of the

        11         educational system up to law school.  And I guess

        12         that could be viewed as me being patronizing of my

        13         students.

        14                        It's just my experience though that

        15         many students assume they know what people think of

        16         issues before they ask.

        17                        And assume that the experiences of

        18         individuals is similar to their own until--it's part

        19         of the socialization process.

        20                        And there is a socialization process

        21         in law school of wanting to seem professional like

        22         everybody else.  That it requires some effort on my

        23         part to break down.

        24   Q.    Do you make any assumptions, Dean Syverud, as to the

        25         extent of which your law students either when you





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         1         were at Michigan, or now that you're at Vanderbilt,

         2         had interracial relationships before they ever got

         3         to law school, do you make any assumptions about

         4         that?

         5   A.    I don't make assumptions except for what information

         6         we gleam from the admissions applicants and the

         7         materials about the students.

         8   Q.    I'm sorry, go ahead, I apologize.

         9   A.    So, there is some, you know, there's some data in

        10         the admissions files and the essays and other things

        11         that students write.

        12                        And usually I do look at that

        13         material before I teach, particularly, a first year

        14         class.  So I get some information about the

        15         backgrounds, including experience across races in my

        16         students.

        17   Q.    But is there anything in an applications file that

        18         suggest that students either at Michigan or those at

        19         Vanderbilt, have come into the school without any

        20         interracial relationships or dealings before they

        21         got there?

        22   A.    Actually the individual admissions files don't show

        23         that detail of experience.  I mean I take my first

        24         year students out to lunch in groups and talk about

        25         their experiences and their backgrounds, where





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         1         they're from.

         2                        And in Vanderbilt many of them are

         3         from small towns in the south, where there's

         4         substantial interracial experiences by the nature of

         5         the community.  So I guess it varies by the

         6         individual.

         7                        There are students have no experience

         8         at all.  There are students who are brought up in

         9         racially diverse settings because the churches are

        10         very segregated, or the schools are very segregated

        11         and they have not had much experience.

        12                        And there's students who have

        13         unbelievably diverse interracial experiences.

        14   Q.    And that varies across racial lines, wouldn't that

        15         be true, of both blacks students, for example, and

        16         white students?

        17   A.    Yes, it sure does.

        18   Q.    In your testimony you made a statement, you said

        19         that you never had any trouble with your white

        20         students in terms of seeing over the course of a

        21         year a vast majority of experiences, you recall that

        22         testimony?

        23   A.    Yes, I said that I have never had any trouble with

        24         white students projecting onto another white student

        25         assumptions of their views of almost all issues





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         1         because of their race.

         2                        And that's primarily been every class

         3         I've taught there's been such an incredible

         4         diversity of background and experience among the

         5         white students that become very obvious very quickly

         6         in the semester.

         7   Q.    Sure.  In other words, every individual is different

         8         and there's a broad range of diversity and a broad

         9         range of experiences that are present in both the

        10         Law School of Michigan, as well as at Vanderbilt?

        11   A.    Yes.  But the difference is that that becomes

        12         obvious among the white students early in the

        13         semester everytime.  It becomes obvious everytime,

        14         because there's always a critical mass of white

        15         students in every class I've taught.

        16                        And so very quickly after I've called

        17         on four or five of them, it's obvious they all don't

        18         have the same views and they all don't agree.  And

        19         therefore, they are comfortable expressing different

        20         views and disagreeing with each other very quickly.

        21   Q.    You've made an assumption, and again correct me if

        22         I'm wrong.  I believe you've made the assumption

        23         that the black students, for example, who come into

        24         your classroom are less comfortable expressing their

        25         viewpoints at Vanderbilt Law School, is that





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         1         correct?

         2   A.    It's been my experience that for some black students

         3         that is the case, yes.

         4   Q.    But not for all, correct?

         5   A.    Very correct.

         6   Q.    And there are white students who are uncomfortable

         7         expressing their views, are there not?

         8   A.    Yes.  And that's kind of why I call on them the way

         9         I call on them.  Which is at random dropping paper

        10         clips on to the seating chart.  So the uncomfortable

        11         ones have to talk too.

        12   Q.    So I'm sure they're always worried when you start

        13         throwing the paper clips?

        14   A.    They are very worried, yes.

        15   Q.    You made a very interesting comment, I want to make

        16         sure I got it down.  I believe in your testimony

        17         earlier this morning you said that it can be enough

        18         to have one member of a particular minority in a

        19         classroom, correct?

        20   A.    Yes.

        21   Q.    And that just simply depends on that individually,

        22         his or her personality, correct?

        23   A.    It's really tough, because it's hard for--it's hard

        24         in the sense for one African American student to

        25         demonstrate to in various ways a diversity of views





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         1         among African American students.  Because by

         2         definition, that's a unique individual.

         3                        But what one outspoken and unique

         4         individual can do is shake up expectations and start

         5         getting everybody in the class to view that person

         6         as a unique individual.

         7   Q.    Dean Syverud, I believe in one of your reports you

         8         have talked about the law school education

         9         being--and I'll just paraphrase.  It being

        10         immeasurably poor, or if there's not meaningful

        11         numbers, or significant numbers of blacks, Hispanic,

        12         Asian Americans and white students, I believe that

        13         was what you said, you recall that?

        14   A.    Yes.  I have to look at the report, but I remember

        15         that sentence in the report.

        16   Q.    Sure.  And if you were lacking, if a law school were

        17         lacking in any one of those particular groups, in

        18         other words, lacked a critical mass, do you believe

        19         that that law school would be offering an inferior

        20         education, a legal education to its students?

        21   A.    As compared to schools that didn't lack that

        22         critical mass, yes.

        23   Q.    I earlier asked you about Vanderbilt's enrollment of

        24         Native Americans.  And, in fact, do you know if

        25         there is even one Native American at Vanderbilt Law





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         1         School currently?

         2   A.    Yes, there is currently.  I mean we had,

         3         historically we had a huge, believe it or not,

         4         Cherokee population before World War II.

         5                        But currently it's quite common for

         6         an entering class not to have a single Native

         7         American student.  There is one in this year's

         8         entering class, I believe.

         9   Q.    You consider that a critical mass?

        10   A.    No, I don't.

        11   Q.    How about, let's just use last year's entering class

        12         at Vanderbilt.  Were there any Hispanic students?

        13   A.    You mean the class that entered in 1999, there was

        14         not a single Hispanic student, correct.

        15   Q.    Did you tell your students that entered in that

        16         class that their education was going to be inferior

        17         because of the absence of Hispanic students?

        18   A.    I talked to students about the issue and explained

        19         why I was very concerned about it, yes.

        20   Q.    But the truth is the class had no Hispanics in it?

        21   A.    That's correct.

        22   Q.    Do you recall the percentage of the class that was

        23         made up by African American students?

        24   A.    In the entering class in 1999?

        25   Q.    Yes, sir.





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         1   A.    I don't recall the exact percentage, no.

         2   Q.    If I told you it was around seven percent, would

         3         that be consistent with your understanding of that

         4         class?

         5   A.    I would think it would be slightly larger than that.

         6   Q.    Outside of African American students, there were no

         7         Native Americans in last year's entering class,

         8         correct?

         9   A.    That's correct.

        10   Q.    No Hispanics was in that class, correct?

        11   A.    I believe that's correct, yes.

        12   Q.    And so the total underrepresented minority

        13         population in last year's entering class would have

        14         been--and I just want you to assume, and you correct

        15         me if I'm wrong.

        16                        But I want you to assume it was about

        17         seven percent.

        18   A.    Okay.

        19   Q.    And that would be the total underrepresented

        20         minority population at Vanderbilt in last year's

        21         entering class?

        22   A.    Correct.  I will take that assumption as correct.

        23   Q.    Okay.  Would that constitute a critical mass of

        24         underrepresented minority students, in your view?

        25   A.    I think it would represent a critical mass of





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         1         African American students.  And I say that primarily

         2         because I taught civil procedure to half of those

         3         students last year, and had in my civil procedure

         4         class at least five or six African American

         5         students, and the dynamic I described occurred.

         6                        That is, over the course of the

         7         semester the students became individuals with the

         8         kind of caustic views across races, across black and

         9         white races.

        10                        Nashville, Tennessee is not a state

        11         that--it's a southern state where the significant

        12         minority population is African American.

        13                        But I would say it had a critical

        14         mass of African American students, because the

        15         pedagogical goals that I described happened in my

        16         class with African American students.

        17   Q.    Of course, the University of Michigan's admissions

        18         policy talks about a critical mass of

        19         underrepresented minority students, correct?

        20   A.    I believe so, yes.

        21   Q.    And that included the Hispanics, African Americans

        22         and Native Americans?

        23   A.    Yes.  I believe it did, yes.

        24   Q.    If Vanderbilt last year rather then have a seven

        25         percent African American students, it had no African





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         1         American students but seven percent Hispanic

         2         students, would you still have the same view of the

         3         class?

         4   A.    Again it would depend on what happened in the class

         5         I taught.  I mean when I say meaningful numbers of

         6         minority students, it's not a particular minimum

         7         standard quantifiable goal.  It's what happens in

         8         class with those particular students as to whether

         9         it works.

        10                        I wouldn't be concerned in the same

        11         way in that hypothetical as I was, in fact,

        12         concerned about the Hispanic enrollments if I had no

        13         African Americans in the classroom.

        14   Q.    Dean Syverud, we have talked a lot about critical

        15         mass and you have been lucky, because you haven't

        16         had to be here the last week or so because that

        17         subject has come up a lot.  And we try to get a

        18         number on it and I don't think we're going to be

        19         successful, at least, here in this courtroom.

        20                        But if I were to ask you would five

        21         percent underrepresented minority enrollment

        22         constitute a critical mass, do you have an opinion

        23         one way or the other?

        24   A.    I guess from what I said, you can probably guess at

        25         what my opinion is, but I will say.





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         1   Q.    Sure.

         2   A.    It would depend on the effect in the classroom.  I

         3         would say that five percent African American

         4         enrollment to the extent it produced significant

         5         numbers of African American students in the relevant

         6         classroom settings, would produce a critical mass.

         7         So it would depend on what classroom settings the

         8         school employs.

         9   Q.    And, of course, whether or not that particular

        10         percentage might constitute critical mass is going

        11         to depend uniquely on the individuals, correct?

        12   A.    That's my view, yes.

        13                        THE COURT:  And the professor's?

        14   A.    Yes.

        15                        MR. PURDY:  I'm sorry?

        16                        THE COURT:  I said and the professor,

        17         depending on what the teaching method is and so

        18         forth.

        19   A.    Yes, I agree.

        20   BY MR. PURDY:

        21   Q.    That prompts another question.  Do you believe, as

        22         of last year, do you believe that the Vanderbilt law

        23         faculty had critical mass of minority members?

        24   A.    I'm sorry?  You want to talk about diversity in the

        25         law faculty?





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         1   Q.    No, I just want to ask one question, and I

         2         apologize.  And I will limit it to this.

         3   A.    Sure.

         4   Q.    Beginning in 1999, the 1999 calendar year, academic

         5         year 99/2000, was it your view that the Vanderbilt

         6         faculty had a critical mass of minority members?

         7   A.    Well, I guess I can't just translate this

         8         significant numbers question that we've been

         9         discussing for students onto faculty, it's a

        10         different question.

        11                        I guess the dynamics of faculty

        12         interaction with each other and with the students is

        13         a little different then the dynamic of one professor

        14         teaching a class.  So I never thought about critical

        15         mass of faculty.

        16   Q.    Okay.

        17   A.    And I didn't understand that that was-

        18   Q.    (Interposing)  It's not an issue, I just asked the

        19         question and let me just be clear.

        20   A.    Yes.

        21   Q.    Critical mass that you have been talking about for

        22         students, might be something entirely different if

        23         we're talking about faculty?

        24   A.    Yes.  It is the case that as of last year there was

        25         one tenured African American faculty member at





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         1         Vanderbilt, there are four now.

         2                        It is the case that there is only two

         3         Asian American faculty members at Vanderbilt, and no

         4         Hispanic of Native American faculty.

         5                        I guess I haven't--I guess the kind

         6         of clastic views on what critical mass what--on

         7         affirmative action issues with regard to faculty

         8         recruitment.

         9                        And I've been testifying here about

        10         pedagogy in the classroom, and I actually think it's

        11         a different question about professors.

        12                        Most professor teach as individuals,

        13         and so the notion that there is a critical mass of

        14         your one person when you're teaching.

        15   Q.    Can we assume then, and I'll move on.  Can we assume

        16         that your views about the use of race and selected

        17         faculty may be different from those of selected

        18         students?

        19   A.    Yes, you can.

        20   Q.    Dean Syverud, let me give you, and it's not a

        21         hypothetical, but I'm going to give you a law school

        22         with 16 percent African American students.  So I

        23         want you to assume this, but I will represent you is

        24         the case.

        25                        Sixteen percent African American





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         1         students, over five percent Hispanic students, over

         2         one percent Native American students, almost five

         3         percent Asian American students, two person foreign

         4         students, and approximately 69 percent Caucasian

         5         students.

         6                        Would that just hearing those

         7         numbers, does that sound to you like a student body

         8         where there's a critical mass?

         9   A.    Again, my context is that it depends on the

        10         particular classroom and professor.  But I would

        11         think it would be more likely that in various

        12         classroom settings with drawing from that

        13         population, there would be meaningful numbers of

        14         minority students in the original classes.

        15   Q.    And I'll represent to you that that's about 22

        16         percent, 22.4 percent of underrepresented minority

        17         students.

        18                        Would that make that law school, in

        19         your view, an inherently better school than say,

        20         Vanderbilt, which has no Hispanic students, no

        21         Native Americans students entered in your last year

        22         entering class?

        23   A.    I think it would make various teaching settings more

        24         likely to produce the pedagogical goals that I have

        25         described.  And that would make it a better law





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         1         school in that respect, yes.

         2   Q.    I'll represent to you, and again I will stand

         3         corrected if I'm in error.  But I believe those are

         4         the numbers from Thomas Cooley Law School here in

         5         Michigan.  Are you familiar with Thomas Cooley?

         6   A.    I sure am.

         7   Q.    And it's a fine law school, is it not?

         8   A.    I think it's a very good law school.

         9   Q.    And, in fact, Michigan every year, at least, not if

        10         every year, but at least frequently gets transfer

        11         students from first year students who completed

        12         their studies at Thomas Cooley and then they come to

        13         Michigan Law School, correct?

        14   A.    I haven't looked at Michigan's transfer since I left

        15         in '97.  But certainly while I was associate dean

        16         there, it was one or more transfer students from

        17         Cooley.

        18   Q.    But because of the racial mix that I have just

        19         described to you, do you believe that Thomas Cooley

        20         offers a better legal education to its students

        21         because of its abundant racial heterogeneity than

        22         does Michigan?

        23   A.    I guess I believe that what I have testified to is

        24         that at a certain point, there's meaningful numbers

        25         of African American students and other groups of





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         1         students in particular classroom settings.

         2                        And therefore, the result it's

         3         possible and likely that s