No. 01-1447

___________________________________________

United States Court of Appeals
for the
Sixth Circuit

_________________________

BARBARA GRUTTER,
                Plaintiff-Appellee,
v.

LEE BOLLINGER, et al.,
                Defendants-Appellants,

and

KIMBERLY JAMES, et al.,
                Intervening Defendants.

_________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN (FRIEDMAN, J.)

___________________________________________

FINAL REPLY BRIEF OF DEFENDANTS-APPELLANTS

___________________________________________

PHILIP J. KESSLER, P15921
LEONARD M. NIEHOFF, P36695
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625
JOHN H. PICKERING
JOHN PAYTON
STUART F. DELERY
CRAIG GOLDBLATT
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Counsel for Defendants-Appellants



UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the table of contents in the brief of the
party. See copy of 6th Cir. R. 26.1 on page 2 of this form.)

Barbara Grutter

v.

Lee Bollinger, et al.
and
Kimberly James, et al.

DISCLOSURE OF CORPORATE AFFILIATIONS
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Lee Bollinger, Jeffrey Lehman, and Dennis Shields* (Name of Party)
makes the following disclosure:

  1. Is said party a subsidiary or affiliate of a publicly owned corporation? No

    If the answer is YES, list below the identity of the parent corporation or affiliate and the
    relationship between it and the named party:

  2. Is there a publicly owned corporation, not a party to the appeal, that has a financial
    interest in the outcome? No

    If the answer is YES, list the identity of such corporation and the nature of the financial interest:
__________/s/__________ ____7/27/01____
(Signature of Counsel) (Date)

6CA-1                         (Over)
Page 1

*         The Board of Regents, as a state entity created by the Michigan Constitution, is exempt
            from the requirements of 6 Cir. R. 26.1.


TABLE OF CONTENTS

TABLE OF AUTHORITIES … … … iii

ARGUMENT … … … 1

  1. Plaintiff's brief fails to mention the Harvard
    admissions system approved by a five-Justice
    majority in Bakke … … … 1

  2. The district court's conclusion that diversity
    cannot constitute a compelling interest was a legal
    decision that this Court reviews de novo … … … 2

  3. The district court erred in holding that, under the
    Supreme Court's recent precedents, only a
    "remedial" interest can be compelling … … … 3

  4. Plaintiff s attempt to read any reference to race and
    ethnicity out of Justice Powell's opinion in Bakke
    distorts the true nature of the diversity interest it
    recognized … … … 4

  5. The Law School's committed to enrolling a
    broadly diverse student body, including one that is
    racially and ethnically diverse … … … 8

  6. Achieving the benefits of a diverse student body
    by enrolling a critical mass of underrepresented
    minority students is not the functional equivalent
    of a quota … … … 9

  7. There are no disputed questions of material fact
    concerning the educational benefits of diversity 13

  8. Plaintiff has failed to show that the Law School
    uses race "too much." … … … 17

  9. The Law School's admissions system is consistent
    with the Harvard plan … … … 25

CONCLUSION … … … 30



i


CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

APPENDIX DESIGNATIONS



ii


TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995) … … … 2

Associated General Contractors of Ohio, Inc. v. Drabik,
214 F.3d 730 (6th Cir. 2000), cert. denied, 121 S. Ct. 1089 (2001) … … … 26,27

Brown v. Board of Education,
347 U.S. 483 (1954) … … … 5

City of Richmond v. J.A. Croson, Co.,
488 U.S. 469 (1989) … … … 2,3

Daubert v. Morrell Dow Pharmaceuticals., Inc.,
509 U.S. 579 (1993) … … … 22

Gratz v. Bollinger,
122 F. Supp. 2d 811 (E.D. Mich. 2000) … … … 27

Hunter v. Regents of the University of California,
190 F.3d 1061 (9th Cir. 1999), cert. denied, 121 S. Ct. 186 (2000) … … … 3,4

Johnson v. Economic Development Corp.,
241 F.3d 501 (6th Cir. 2001) … … … 2

Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) … … … 23

Metro Broadcasting v. FCC,
497 U.S. 547 (1990) … … … 6,7

Oliver v. Kalamazoo Board of Education,
706 F.2d 757 (6th Cir. 1983) … … … 4

Regents of the University of California v. Bakke,
438 U.S. 265 (1978) … … … passim

Regents University of Michigan v. Ewing,
474 U.S. 214 (1985) … … … 28

Smith v. University of Washington Law School,
233 F.3d 1188 (9th Cir. 2000), cert. denied, 121 S. Ct. 2192 (2001) … … … 4

Sweatt v. Painter,
339 U.S. 629 (1950) … … … 6,7,8

Sweezy v. New Hampshire,
354 U.S. 234 (1957) … … … 5

United States v. Michigan,
940 F.2d 143, 165 (6th Cir. 1991) … … … 15

United States v. Ovalle,
136 F.3d 1092 (6th.Cir. 1998) … … … 4

Wittmer v. Peters,
87 F.3d 916 (7th Cir. 1996) … … … 4

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) … … … 3

RULES

Fed. R. Civ. P. 56(a) … … … 15

Fed. R. Evid. 702 … … … 24

Fed. R. Evid. 703 … … … 24

MISCELLANEOUS

William G. Bowen & Derek Bok, The Shape of the River: Long-Term
Consequences of Considering Race in College and University Admissions,

(1998) … … … 16


iv


ARGUMENT

In its opening brief, the University of Michigan Law School ("Law School"
showed that the substantial educational benefits of a racially and ethnically diverse
student body form a central component of the education that the Law School
provides. The 1992 Faculty Admissions Policy ("Policy") implemented the goal of
achieving the educational benefits of diversity in a manner fully consistent with
Regents of the University of California v. Bakke, 438 U.S. 265 (1978). In fact, it is
hard to imagine a policy more faithful to Bakke. Plaintiff's opposition brief
distorts both the Law School's Policy and the meaning of Bakke. This Reply
addresses the most egregious of those distortions, demonstrating that Bakke
controls this case and that the Law School's Policy, which seeks crucially
important educational benefits for all students, is clearly constitutional.

      1.       Plaintiff's brief fails to mention the Harvard admissions system
approved by a five-Justice majority in Bakke.
Plaintiff's brief focuses almost
exclusively on what institutions of higher education are prohibited from doing in
considering race and ethnicity in admissions, but the Bakke decision also identifies
policies and practices that they may constitutionally employ. The Harvard plan
was explicitly approved by Justice Powell, as well as Justice Brennan and the
Justices who joined his opinion, as an example of a "properly devised" admissions
program. See Bakke, 438 U.S. at 316-18, 326 n.1. Plaintiff's brief nowhere


1


mentions the Harvard plan. The reason for this omission is clear: neither Plaintiff
nor the district court have identified any material difference between the Law
School's Policy and the Harvard admission's system. The 1992 Policy is entirely
consistent with that plan and therefore must be upheld. (See Br. of Appellant's at
36-43.)

      2.       The district court's conclusion that diversity cannot constitute a
compelling interest was a legal decision that this Court reviews de novo.
Plaintiff
suggests that the district court's conclusion that "diversity is not a compelling state
interest," (R-311, Opinion at 47, JA-142), was a factual finding rather than a legal
conclusion. (See, e.g., Br. of Appellee at 4, 16.) Plaintiff apparently seeks a more
lenient standard of review than the applicable de novo standard. See Johnson v.
Econ. Dev. Corp.,
241 F.3d 501, 509 (6th Cir. 2001).

There can be no confusion about what the district court held. The court did
not conclude that the substantial educational benefits that flow from having a
diverse student body are insufficient to warrant a conclusion that "the interest in
diversity is compelling in the context of a university's admissions program."
Bakke, 438 U.S. at 314. Indeed, the district court concluded that these benefits are
"important and laudable." (R-311, Opinion at 49, JA-144.) However, the court
erroneously believed that its hands were tied -- that, under the Supreme Court's
decisions in Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), and City of


2


Richmond v. J.A. Croson, Co., 488 U.S. 469 (1989), it was precluded from finding
that achieving the educational benefits of diversity is a compelling interest
"because it is not a remedy for past discrimination." (R-311, Opinion at 46-47, JA-
141-42.) Moreover, Plaintiff's counsel repeatedly argued that whether diversity
can be a compelling interest is purely a legal issue. (See, e.g., R-330, SJ Hearing at
12, JA-7099 (arguing that "diversity is not a compelling governmental interest and
that that is true as a matter of law").) 1/

      3.       The district court erred in holding that, under the Supreme Court's
recent precedents, only a "remedial" interest can be compelling.
Plaintiff does not
point to a single post-Bakke decision holding that only remedial justifications for
racial classifications are valid. Plaintiff merely asserts that the "Court has never
found any 'compelling' interest other than a 'remedial' one." (Br. of Appellee at
22.) This assertion, which ignores the Bakke precedent, is wrong. The fact that the
Supreme Court did not conclude that a compelling interest existed on the facts of
cases such as Wygant v. Jackson Board of Education, 476 U.S. 267, 276 (1986),
hardly shows that it has reached a conclusion that only remedial justifications are
compelling. A number of appellate courts have upheld race-conscious

___________________
1/       If the district court intended to decide the compelling interest question on
anything other than a purely legal basis, it would have been error for the court to
rule, as it did, (see, e.g., R-330, SJ Hearing at 93, JA-7180), that the Law School
could not introduce evidence on the educational benefits of diversity at trial.


3


classifications supported by non-remedial justifications. See, e.g., Hunter v.
Regents of the Univ. of Calif.,
190 F.3d 1061 (9th Cir. 1999), cert. denied, 121 S.
Ct. 186 (2000); Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996); see also United
States v. Ovalle,
136 F.3d 1092 (6th Cir. 1998) 2/

Further, Plaintiff's criticism of the cases included in the Law School's
opening brief misses the point. (Br. of Appellee at 21-25.) In discussing cases
such as Metro Broadcasting, the Law School simply established that, contrary to
Plaintiff's suggestions, the Supreme Court has never overruled or even
reconsidered its decision in Bakke, and has repeatedly recognized the continuing
vitality of Justice Powell's controlling opinion. (See Br. of Appellants at 24 (citing
cases).) Other courts have taken the same view, including appellate courts such as
this Court, see, e.g., Oliver v. Kalamazoo Bd. of Educ., 706 F.2d 757 (6th Cir.
1983), and the Ninth Circuit, see Smith v. University of Wash. Law Sch., 233 F.3d
1188 (9th Cir. 2000), cert. denied, 121 S. Ct. 2192 (2001). Plaintiff's counsel
litigated Smith, but that case is not even mentioned in Plaintiff's brief.

      4.       Plaintiff's attempt to read any reference to race and ethnicity out of
Justice Powell's opinion in Bakke distorts the true nature of the diversity interest it

___________________
2/       Here and in our opening brief, we cite this Court's decision in Ovalle as
support for the proposition that non-remedial interests such as achieving diversity
have been deemed compelling. However, the reference to Bakke in the
parenthetical accompanying this case in our original brief, (Br. of Appellants at 26-
27), was a mistake. It should have referred only to diversity.


4


recognized. Presumably to advance the novel argument that "a state's interest in
First Amendment freedoms . . . should have even less weight when compared to
principles of non-discrimination," (Br. of Appellee at 21. (emphasis omitted)),
Plaintiff tries to limit the diversity interest that Justice Powell recognized to issues
of free speech. Yet, Bakke explicitly addressed the permissible uses of race and
ethnicity in admissions.

First Amendment principles figured prominently in Justice Powell's Bakke
opinion. In recognizing the compelling interest in achieving the educational
benefits of diversity, Justice Powell drew on cases recognizing not only the
significance of education to our democracy, see, e.g., Brown v. Board of
Education,
347 U.S. 483, 493 (1954), but also the importance of "[an] atmosphere
of speculation, experiment and creation" in the higher education context, Bakke,
438 U.S. at 313 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957)
(Frankfurter, J., concurring); the "countervailing [First Amendment] interest" that
universities invoke in exercising their academic freedom to select students, id. at
313; and the autonomy afforded educators in making educational judgments, id.
These principles are imbedded in the notion of "academic freedom" and are an
essential part of what makes the interest in diversity compelling.

However, Justice's Powell's opinion in Bakke did not, as Plaintiff would
have this Court believe, rest upon narrow First Amendment principles


5


disconnected from the uniquely powerful role race plays in our country. Though
his thinking was informed by the First Amendment, Justice Powell described the
interest he found compelling as "obtaining the educational benefits that flow from
an ethnically diverse student body." Bakke, 438 U.S. at 306. He quoted the
Supreme Court's decision in Sweatt v. Painter, 339 U.S. 629, 634 (1950), which
held that "[t]he law school, the proving ground for legal learning and practice,
cannot be effective in isolation from the individuals and institutions with which the
law interacts." He also quoted Dr. William Bowen's article entitled "Admissions
and the Relevance of Race," which emphasized the importance of diversity
because "a great deal of learning occurs informally . . . through interactions among
students of . . . different races." Bakke, 438 U.S. at 313 n.48. Justice Powell
recognized that, given the salience of race in America, considerations of race and
ethnicity lie at the core of the compelling interest "in achieving the educational
diversity valued by the First Amendment." 3/ Id.

___________________
3/       Plaintiff incorrectly contends that Justice Powell's opinion lacked any
empirical basis. Justice Powell emphasized that his views regarding diversity
reflected a broad consensus among educators. Bakke, 438 U.S. at 312. As the
district court recognized in its opinion in this case, (R-311, Opinion at 40, JA-135),
Justice Powell relied on the experience and scholarship of educators from such
leading institutions as Princeton and Harvard. See Bakke, 438 U.S. at 313. In
announcing the judgment from the bench, Justice Powell noted that Bakke had
generated scores of amicus briefs, providing the Court with a great deal of relevant
information. See http://oyez.nwu.edu/dynaram.cgi?case_id=324&resource=
opinion.smilcases.


6


This is not to say, of course, that either Justice Powell's opinion or the Law
School's Policy sees race as a proxy for viewpoint. Cf. Metro Broadcasting, Inc. v.
FCC,
497 U.S. 547, 603-04 (1990) (O'Connor, J., dissenting) (expressing concern
that non-remedial rationales for race-conscious programs could risk fostering
stereotypes by treating race as a proxy for viewpoint). Many students are likely to
have experiences because of their race that may have an impact on their views and
perspectives. (R-333, Lempert TR123-24, JA-7520-21.) Given the racial
separation in our society, learning also occurs when a minority student does not
express a view that might be expected, when students see that members of one
racial or ethnic group often have differing views, or when students discover that
individuals of different racial groups may have similar attitudes on an issue. (See
R-219, SJ Exhibits, Gurin Rep. at 6, JA-2321.)

Plaintiff alleges that the Law School seeks in the First Amendment a license
to discriminate on the basis of race and ethnicity. This is untrue. In fact, the Law
School has explicitly stated that Justice Powell's decision in Bakke does not give
institutions of higher education such permission. (See Br. of Appellants at 42.)
Indeed, Justice Powell, in relying on Sweatt v. Painter, could not have meant that
the First Amendment sanctions such conduct because the Sweatt Court squarely
rejected the University's argument that it should be able to exclude all African
Americans from admission to the University of Texas School of Law. See 339


7


U.S. at 629. However, where the consideration of race and ethnicity is justified by
the compelling interest in a diverse student body, and where an institution of
higher education complies with Bakke's limitations, it is clear that an institution is
entitled to a "presumption of legality and legitimate educational purpose." Bakke,
438 U.S. at 319 n.53.

      5.       The Law School is committed to enrolling a broadly diverse student
body, including one that is racially and ethnically diverse.
Having tried to strip
race and ethnicity out of Bakke, Plaintiff seeks to read out of the Law School's
Policy all references to diversity other than those relating to racial and ethnic
diversity. Plaintiff maintains that the fact that "the Law School also considers
factors and admits students for reasons unrelated to achieving critical mass" is
irrelevant. (See Br. of Appellee at 31.) To Plaintiff, Bakke is not about race, and
the Law School's Policy is only about race. Plaintiff is as wrong about the Law
School's Policy as she is about Bakke.

As we described in our opening brief, (Br. of Appellants at 6-10), the Law
School's Policy seeks a student body that is broadly diverse. The Law School has
made a judgment that such diversity enhances the education it provides and
therefore considers many factors in the admissions process to ensure that it is able
to enroll a diverse student body. (Id. at. 5-13; R-346, Exhibit 4, Policy, JA-4234-
4242.) Racial and ethnic diversity are a "single but important element" of this


8


overall diversity. Bakke, 438 U.S. at 315. Plaintiff's claim that the Law School
seeks "simple" racial diversity "for its own sake" is just incorrect.

Given the significance of race and ethnicity in America, the Law School
seeks more than token numbers of underrepresented minority students in its student
body so that students of all races are, able to see the differences within racial and
ethnic groups, and are likely to have opportunities to see the similarities between
such groups. (R-333, Lempert TR125-26, JA-7522-23; R-335, Syverud TR42-43,
JA-7703-04.) Underrepresented minority students report feeling isolated when
there are only token numbers, such that they are not able to contribute freely as
individuals and, instead, feel that they must serve as representatives for their
groups. (Id., Lempert TR119-20, 125, JA-7516-17, 7522; R-335, Lehman TR134-
35, JA-7746-47; id., Syverud TR37-38, JA-7698-99.) The need for a "critical
mass" to avoid these barriers to learning is not challenged here. The only issue is
whether the Law School has gone about pursuing a "critical mass" in a manner
consistent with Bakke.

      6.       Achieving the benefits of a diverse student body by enrolling a critical
mass of underrepresented minority students is not the functional equivalent of a
quota.
Under Bakke, an impermissible racial quota is a fixed, numerical target or
goal that excludes applicants from competition with all other students on the basis
of race. Justice Powell emphasized that insulation from competition was a key


9


difference between impermissible and permissible programs: "In such an
[appropriate] admissions program, race or ethnic background may be deemed a
'plus' in a particular applicant's file, yet it does not insulate the individual from
comparison with all other candidates for the available seats." See 438 U.S. at 317
(emphasis added). He also described the "constitutional distinction between [the
Davis] preference program and one that assures a measure of competition among
all applicants." Id. at 319 n.53 (emphasis added).

The fact that an institution pays some attention to the numbers in admitting
students does not mean that it employs the functional equivalent of a quota.
Indeed, Justice Powell rejected the very argument that Plaintiff makes here -- that
"an admissions program which considers race as only one factor is simply a subtle
and more sophisticated -- but no less effective -- means of according, racial
preference than the Davis program." Id. at 318. Bakke contemplates that
institutions of higher education will be somewhat attentive to the numbers in
seeking to achieve, "meaningful numbers" or, in the Law School's terms, a
"critical mass" of underrepresented minority students. 4/ Indeed, Justice Powell
held that a public university may pay "some attention to distribution among many
types and categories of students" and operate its admissions system with an

___________________
4/       Like Plaintiff's own witness, (see Heriot Dep. at 195-96), the Law School
understands "critical mass" to be equivalent with the term "meaningful numbers"
Justice Powell used in his opinion.


10


"awareness of the necessity of including more than a token number of black
students," so long as it does not set a "minimum number" of minorities for
admission. Id. at 316-17 (quotation and citation omitted). Significantly, the
Harvard admissions policy recognized that minority students who are present in the
student body in only token levels "could not begin to bring to their classmates and
to each other the variety of points of view, backgrounds and experiences" of
minorities in the United States. Id. at 323. The plan therefore concluded "that
there is some relationship between the numbers and achieving the benefits to be
derived from a diverse. student body, and between numbers and providing a
reasonable environment for those students admitted." Id. In approving the
Harvard plan, the Bakke Court thus made clear that this attention to the numbers is
not the functional equivalent of a quota.

The Law School attends to the numbers in seeking to enroll a critical mass
of underrepresented minority students, but not because it seeks to enroll a
particular number of such students in a given year, as the Davis admissions
program did. It has no fixed goal or target. (R-331, Munzel TR 160-66, 224-25,
JA-7251-57, 7312-13; R-333, Lempert TR124-25, JA-7521-22; R-335, Lehman
TR137-38, JA-7749-50.) Indeed, because its interests in diversity are always
balanced against other academic interests, (id., Munzel TR160-63, JA-7251-54; R-
333, Lempert TR124-25, JA-7521-22), the Law School might fail to admit a


11


critical mass of underrepresented minority students if the applicant pool that year
were such that other applicants with a more impressive overall combination of
qualifications were present. (R-333, Lempert TR154-66, JA-7550-62; R-335,
Lehman TR174-75, 178-79, 183-84, 194, JA7761-62, 7764-65, 7767-68, 7773.) In
any event, if "critical mass" has been achieved, the Law School would stop its
conscious consideration of race and ethnicity. (Id., Lempert TR127, JA-7524; R-
335, Lehman TR144-45, JA-7755-56.)

Plaintiff's contention that the Law School uses a numerical target for
underrepresented minority students that is similar to the goal it uses for the
enrollment of Michigan residents is incorrect. Both the Dean and the Director of
Admissions testified that, although the Dean sets a goal for enrollment of Michigan
residents each year, no similar target is set for the enrollment of underrepresented
minority students. (R-331, Munzel TR224-25, JA-7312-13; R-333, Lempert
TR184-88, JA-7275-79; R-335, Lehman TR137-38, 183, JA-7749-50, 7767; R-
334, Shields TR184-85, JA-7666-67.) Similarly, Plaintiff is wrong in asserting
that the Committee that drafted the 1992 Policy identified a target range that is
used in making admissions decisions. Professor Richard Lempert, the Chairman of
the Committee that drafted the Policy, testified that he included a numerical range
in an early draft of the Policy as a way of describing, as a historical matter only,

the enrollment levels through which the Law School, in his view, had previously
12


been able to enroll a critical mass. (R-333, Lempert TR149-50, JA-7545-46.) This
range was not included in subsequent drafts of the Policy. 5/ (Id., JA-7545-46.)

      7.       There are no disputed questions of material fact concerning the
educational benefits of diversity.
The Law School has presented solid expert
evidence regarding the substantial benefits that flow from a student body that is
racially and ethnically diverse. This evidence includes numerous reports and
testimony from experts in the fields of education, social psychology, sociology,
and history. (See R-219, SJ Exhibits, Expert Reports, JA-2240-2709.) It also
includes testimony from Law School educators, who confirmed, based on their
experience, the benefits of a racially and ethnically diverse student body. (See Br.
of Appellants at 13.)

Given this broad consensus, it is not surprising that Plaintiff conceded at trial
that "no one is contesting that there, are educational benefits of diversity. It's
simply not an issue in the case." (R-331, Plaintiff s Counsel TR10, JA-7192.) The

___________________
5/       Plaintiff wrongly suggests that the Policy lacks "candor" because this, range
was omitted. The Committee that drafted the Policy agreed that the version of the
Policy adopted by the faculty is consistent with applicable law and best describes
how the Committee intended the Policy to operate. (See, e.g., R-333, Lempert
TR149-51, JA-7545-47.)


13


district court likewise agreed these benefits were both "important and laudable."
(R-311, Opinion at 49, JA-144.) In this Court, however, Plaintiff attempts to
backpedal from that concession, suggesting for the first time that racial and ethnic
diversity on campus is not important, and may even be "harmful." (See Br. of
Appellee at 26.)

            a.       Plaintiff's new criticisms of Dr. Gurin' s work are meritless.
The Law School has presented substantial evidence from qualified experts, such as
Dr. Patricia Gurin, demonstrating the educational benefits that flow from a racially
and ethnically diverse student body. In contrast, Plaintiff has introduced no
contrary evidence. The two witnesses Plaintiff identified to rebut the
overwhelming evidence concerning the benefits of diversity -- Professors Charles
Geshekter and Gail Heriot -- were not qualified to do so. Professor Geshekter is a
professor of history with no substantive experience in this area. (See R-230,
Affidavit and Exhibits, Ex. C, Expert Report Geshekter, JA-2929.) Similarly,
Professor Heriot is a professor of law, who has never studied, surveyed,
researched, or written on the educational benefits of diversity. (See R-297, Mem.
of Law in Supp. of Def.'s Mot. in Limine to Preclude Plf.'s Witness Gail Heriot
from Offering Expert Op. Test. at 4, JA-3606.) Indeed, when Plaintiff indicated
she would call Professor Heriot as a witness, the Law School challenged her
qualifications. (See id, JA-3606.) The district court was prepared to rule on the


14


Law School's objections when Plaintiff withdrew Professor Heriot from the
witness list.

Plaintiff now suggests that an amicus brief submitted by the National
Association of Scholars ("NAS"), which criticizes Dr. Gurin's research, creates
factual issues. Yet, criticism by an amicus (whose assertions the Law School had
no opportunity to challenge in discovery) cannot create a genuine issue of fact
where none exists on the record. See Fed. R. Civ. P. 56(a) (stating that the
"adverse party" may defeat summary judgment by submitting specific
counterevidence); see also United States v. Mich., 940 F.2d 143, 165 (6th Cir.
1991) (distinguishing role of amicus from role of litigating party).

Moreover, these criticisms of Dr. Gurin's work -- which have themselves
been challenged as methodologically flawed, (see, e.g., Amicus Br. of American
Council on Education at 24; Amicus Br. of the Stanford Institute for Higher
Education Research, in Gratz v. Bollinger, Nos. 01-1333, 01-1416, 01-1418, at 15-
22) -- are meritless. Dr. Gurin's methodological approach was appropriate and
consistent with the work of many other researchers on higher education. (See
Patricia Gurin, Response to the Critique by the National Association of Scholars at
http://www.umich.edu/~urel/admissions/new/gurin.html ("Gurin Response");
Amicus Br. of the Stanford Institute for Higher Education Research at 17; see also
Amicus Br. of American Council on Education at 24; Amicus Br. of the Civil


15


Rights Project at 11). The NAS critique sets up a straw man -- i.e., that only
evidence showing that the percentage of minority students on campus directly
affects student outcomes matters -- and then suggests that Dr. Gurin found no such
direct effects. Both points are wrong. Despite what Plaintiff suggests, Dr. Gurin's
study does include some direct outcomes related to the presence of minority
students. (E.g., R-219, SJ Exhibits, Gurin Rep. at Figure 2 and Appendix B, JA-
2350, 2399-421.) In addition, it is well-established in social psychology that the
racial diversity of a campus operates through the experiences that students have on
campus, both in the classroom and in informal interactions with peers. Having
sufficient numbers of minority students is necessary, but not sufficient, to achieve
the educational benefits of diversity. (Id. at 22-23, JA-2337-38.) This make sense,
and is also confirmed by Dr. Gurin's work and that of many other researchers
described in the report. (Id. at 9-21 and Appendix C, JA-2324-36, 2429-51.)

            b.       Plaintiff's criticisms of Professor Derek Bok's expert report are
also meritless.
Plaintiff attacks Professor Bok's report because it draws on the
book The Shape of the River. Long-Term Consequences of Considering Race in
College and University Admissions
(1998), which Professor Bok co-authored with
Dr. William Bowen and which, in Plaintiff s view, consists of "little more than the
authors' opinions on the value of diversity." (Br. of Appellee at 27 (emphasis
added).) This contention is incorrect. As Plaintiff has, previously noted, Shape of


16


the River contains a great deal of data, including four voluminous appendices
concerning the admissions programs of 28 major universities. Bowen and Bok,
supra, at 291-92. It presents "objective data on the benefits of diversity," (Br. of
Appellee at 27), and contains reliable evidence regarding the impact of race
conscious admissions programs on minorities.

            c.       The Law School's unrebutted expert case enjoys broad support.
Experienced educators, researchers in the field of higher education, and institutions
of higher education agree that the Law School's expert case clearly establishes the
substantial educational benefits of racial and ethnic diversity. They agree that
racially and ethnically diverse law schools and classes provide a better legal
education to all law students and produce better lawyers. (See, e.g., R-346, . Ex.
153, Syverud Rep., JA-5617-37; R-219, SJ Exhibits, Gurin Rep., JA-2316-499; id.,
SJ Exhibits, Bok Rep., JA-2240-67; id., SJ Exhibits, Webster Rep., JA-2620-32;
see also Amicus Br. of American Council on Education; Amicus Br. of the Civil
Rights Project; Amicus Br. of the Stanford Institute for Higher Education
Research; Amicus Br. of Law School Deans.)

      8.       Plaintiff has failed to show that the Law School uses race "too much."
Plaintiff seeks to redefine what it means to "weigh" race "fairly" by arguing that
the Law School's admissions program uses race "too much." This argument is
legally and factually wrong.


17


Bakke defines what it means, as a legal matter, to weigh race fairly in the
admissions context: a university must employ the "competitive consideration of
race and ethnic origin." 438 U-S, at 320. This Court should therefore reject
Plaintiff's invitation to adopt a new standard. Under Justice Powell's opinion, a
"properly devised" admissions system considers race and ethnicity as one of many
factors in choosing among "otherwise qualified" applicants in order to achieve the
benefits of diversity, id. at 307; it does not insulate applicants from competition by
employing racial quotas or separating applicants on the basis of race, id. at 315-18.

In any event, Plaintiff s statistical argument that the Law School somehow
uses race "too much" in admissions collapses under scrutiny.

            a.       Small differences between the average grades and test scores of
minority and majority admitted students are not proof of a "double standard."

Even Plaintiff has acknowledged that all students admitted to the Law School are
fully qualified. (See R-345, Plf's Closing TR7, 27, JA-8785, 8805.) The small
differences in average scores for majority and minority students -- i.e. the
difference between an A- and a B+ -- do not show that admitted minority students,
based on all relevant qualifications, are less qualified than their majority
counterparts, much less that the Law School has a double standard. Moreover,
because of the distribution of individuals within the applicant pool, the same


18


differences would have been evident if Plaintiff had focused on a factor such as
leadership or work experience. (R-333, Lempert TR131-35, JA-7528-32.)

            b.       Plaintiff misunderstands the Law School's point on the extent to
which race is considered in admissions.
The Law School has never disputed that
race is a factor in admissions -- and that it makes the difference for some
applicants.
That is what it means for race to be a factor; if it could not make a
difference, it would make no sense for it to be considered. The role that race and
ethnicity play in the Law School's admissions process varies from application to
application. (See Br. of Appellant at 38-39.) In the aggregate, however, race is
considered only in connection with seeking a "critical mass" to achieve the
educational benefits of diversity, weighing the interest in obtaining the benefits of
diversity against other educational objectives. (R-333, Lempert TR127, JA-7524;
R-335, Lehman TR144-45, JA-77557-56.)

Plaintiff accuses the Law School of engaging in "comical sophistry" for
seeking to draw a distinction between the mere fact that it considers race and
ethnicity in making admissions decisions and the extent to which those factors are
employed in decision making. (Br. of Appellee at 41 n.13.) The distinction,
however, is one made by Justice Powell. His opinion in Bakke makes clear that an
admissions program may consider race and ethnicity as a "plus" factor, so long as,
it is "flexible enough to consider all pertinent elements of diversity in light of


19


the particular qualifications of each applicant, and to place them on the same footing
for consideration, although not necessarily according them the same weight." 438
U.S. at 317. Plaintiff s statistics expert, Dr. Larntz, proved what the Law School
has acknowledged all along -- that race is a factor in admissions but he could not
tell how much weight the admissions professionals gave to applicants' race or
ethnicity. (R-334, Raudenbush TR90-91, JA-7627-28; R-332, Larntz TR1881-82
JA-7469-70.; R-342, Larntz TR65-66, JA-8598-99.) 6/

            c.       Plaintiff's emphasis on the so-called "grids" is misplaced.
Plaintiff's brief reproduces a selected portion of the grids for two years, covering
only students with greater than a B average and better-than-average test scores.
Plaintiff says that this selection paints a "devastating picture" proving that race is
"enormously important" in admissions. (Br. of Appellee at 37.) In fact, the
chances of admission for majority and minority students are quite similar. On
Plaintiff's own chart for 1997, 45% of "selected minorities were admitted as
compared to 41% of white applicants. For 2000, 50% of "selected minority"
applicants were admitted versus 42% of white applicants. (Br. of Appellee at 12-

___________________
6/       The Law School has not argued that race plays only the role of a "feather" in
admissions. Rather, the point is that Dr. Larntz's analyses are unable to tell the
extent to which race is considered in the admissions process -- it could be the
equivalent of a brick or of a feather, and Dr. Larntz's results would be the same in
either case. (See Br. of Appellants at 39 n.27.)


20


13.) Plaintiff's own numbers refute the suggestion that race is a "super factor" in
admissions. 7/

Moreover, in focusing solely on small cells of students defined to have the
same grades and test scores., Dr. Larntz skewed the results of his analysis. As we
explained in our opening brief, Dr. Larntz wrongly assumed that the "grids"
reflected how the Law School makes admissions decisions. (R-311, Opinion at 23-
24, JA-118-19; see also R-332, Larntz TR130, JA-7449; R-342, Larntz TR89-91,
JA-8606-08.) Dr. Larntz ignored admissions factors that the Law School does not
quantify (such as leadership ability and enthusiasm of recommenders) and thus
guaranteed that any differences in admission results would be attributed entirely to
race. (R-334, Raudenbush TR87-90, JA-7624-27; R-332, Larntz TR131-32, JA-
7450-5 1.) Had Dr. Larntz drawn his grids differently, he would have gotten
different results. (R-332, Larntz TR172-75, JA-7461-64.) Furthermore, because
Dr. Larntz's analysis was based on small cells in a grid, a change in the decision
for a single minority applicant in a cell can produce vastly different odds ratios.
(R-342, Larntz TR73-74, JA-8600-01.) In fact, Dr. Larntz's reliance on the grids
produced wildly unstable odds ratios across the years, demonstrating that the

___________________
7/       These differences would be even smaller had Plaintiff included the data for
applicants identified as "other Hispanics," who are considered underrepresented
minority students under the 1992 Policy. (See R-346, Exhibit 4, Policy at 12, JA-
4241.)


21


model he employed was seriously flawed. (R-334, Raudenbush TRl04-05, JA-
7634-35; R-343, Raudenbush TR21, JA-8623.)

            d.       Dr. Larntz deliberately excluded relevant information from his
analysis.
Plaintiff tries to minimize the scope of the methodological error Dr.
Larntz committed in including only data where applicants were treated differently
-- i.e., "comparative data" under Dr. Larntz's definition -- and excluding from his
analysis all data showing that students were treated the same. Plaintiff asserts that
this "was just one part of Dr. Larntz's analyses." (Br. of Appellee at 42.)
However, that intentional omission had a tremendous impact on the odds ratio
analysis on which Plaintiff relies. 8/ Because he was purporting to show the extent
to which applicants were treated differently on the basis of race, data showing that
applicants of different races were, in fact, treated exactly the same was quite
relevant. Its exclusion from Dr. Larntz's analysis obviously compromised the
reliability of his analysis. And the district court erred in relying on it. See Daubert

___________________
8/       Plaintiff argues that approximately 84% to 88% of the applicants with
"comparative information" were included in Dr. Larntz's analyses. (Br. of
Appellee at 42.) But Dr. Larntz excluded data that was important to the analysis he
purported to conduct. In 1995, for example, Dr. Larntz's analysis excluded almost
40% of underrepresented minority applicants, the group he claimed to be studying.
(See R-342, Larntz TR84-86, JA-8603-05; R-346, Exhibit 225, JA-6190,8982.)
This is just one way in which Dr. Larntz's exclusion calls his analyses into
question. (R-334, Raudenbush TR71-76, JA-7612-17; see also R-304, Defs.' Post-
Trial Memorandum Respecting Proposed Findings of Fact and Conclusions of Law
at 20-26, JA-4036-42.)


22


v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (discussing standards for
evaluating expert testimony); see also Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999) (same). 9/

            e.       Dr. Larntz's "selection index" graphs are seriously flawed.
Plaintiff's brief includes a copy of this graph that Dr. Larntz prepared and which
purports to show "comparative probabilities of admission for [African Americans]
compared to Caucasia[n] Americans." (Br. of Appellee at 14.) But this graph,
and. others like it that Dr. Larntz prepared, are useless. They (1) are based on a
measure -- the selection index score -- that the admissions officers have never used
in evaluating applications, (R-331, Munzel TR210-11, JA-7301-02; R-334, Shields
TR178-79, JA-7660-61); (2) use the "maximum likelihood estimate for the
probability function of admission[s]" derived from an "isotonic regression model"
-- i.e. a prediction rather than observed data, (R-332, Larntz TR197-98, JA-747I-
72); and (3) have curves that have artificially been "constrained" to be "non-
decreasing" -- meaning that, even when the data showed a drop in the probability
of admission, Dr. Larntz ignored that. data and extended the curve upwards to the
next higher probability, (R-332, Larntz TR200-02, JA-7473-75).

___________________
9/       Despite Plaintiff's suggestion, (Br. of Appellee at 40 n.11), the Law School
argued in its post-trial brief that Dr. Larntz's work did not comply with the
standards of Rules 702 and 703 of the. Federal Rules of Evidence. (See R-304,
Defs.' Post-Trial Memorandum Respecting Proposed Findings of Fact and
Conclusions of Law at 20 n.7, JA-4036.)


23


            f.       In addition to pointing out the flaws in Dr. Larntz's approach,
the Law School's statistics expert conducted an analysis to show the causal impact
of the Law School's consideration of race.
Dr. Stephen Raudenbush showed that if
the Law School changed to a policy that did not consider race, majority students
would see only a very small increase in their chances of admission, while the
probability of admission for minority, students would be cut dramatically. This is
due to the small number of underrepresented minority students who apply and are
admitted, and the fact that many students (of all races) fall in the "middle range" of
qualified applicants.

Dr. Raudenbush testified without challenge that these results do not say
anything about the extent to which the Law School takes race into account in
admissions, given three factors: (1) many more students apply to the Law School
than can be accepted; (2) grades and test scores played an important role in the
simulated admissions decisions in this analysis because there was little other
quantitative data; and (3) there were small differences in the mean grade point
averages and test scores for minority and majority students, which (as explained
above) do not demonstrate different levels of qualification. (R-341, Raudenbush
TR45-46,156-58, JA-7595-96, 7652.) Given these dynamics, "differences between
two groups[,] minority and majority[,] in those [grades] and test scores . . . -- even
if those differences aren't very large -- can translate into big differences in the


24


probability of admission under the new policy." (Id. at TR157, JA-7652.)
Significantly, he was clear that "[t]hat doesn't depend on how heavily the
admissions officer[s] weigh race." (Id. at TR46, JA-7596.) Plaintiff has no
response to Dr. Raudenbush's detailed explanation.

      9.       The Law School's admissions system is consistent with the Harvard
plan.
10/ All the narrow tailoring rationales advanced by the district court and by
Plaintiff are wrong.

            a.       The Law School's definition of "critical mass" is entitled to
deference.
Witnesses provided detailed testimony . about what critical mass means
in the Law School context.. (See, e.g., R-331, Munzel TR158-60, JA-7249-51; R-
333, Lempert TR124-25, JA-7521-22; R-335, Lehman TR135-37, JA-7747-49.)
Plaintiff's contention that the Law School is somehow required to do more than
this is inconsistent with Bakke. The Law School has made an educational
judgment about what is required to meet its educational mission and that judgment,
barring the Law School's failure to comply with Bakke, must be respected.

            b.       The Law School does not have a racial quota. Plaintiff argues
that, in addition to having the "functional equivalent of a quota," the Law School

___________________
10/       Plaintiff tries to manufacture "disputed" facts as support for her incorrect
view that the "clearly erroneous" standard applies here. However, the parties
dispute the meaning to be drawn from the facts, rather than the facts themselves.
Accordingly, the de novo standard applies. (See Br. of Appellants at 33 (citing
cases).)


25


employs an actual quota. (See Br. of Appellee at 45.) Plaintiff essentially
contends that, in adopting the 1992 Policy, the Law School incorporated
(presumably in bad faith) the content of prior Law School policies setting
enrollment goals for underrepresented minorities. (See id. at 30-31.) Nothing in
the record supports this far-fetched conclusion. At trial, the Law School's
witnesses testified that the 1992 Policy eliminated the Law School's previous
policies and ratified only the Law School's commitment to ensuring racial and
ethnic diversity. (R-333, Lempert TR92-93, 106, JA-7491-92, 7504; id., Bollinger
TR55-56, JA-7481-82.) The evidence on this point is unrefuted. 11/ For reasons
that the Law School has already addressed, the fact that the percentage of enrolled
students at the Law School has fluctuated between 10-17% since the Policy's
adoption can hardly constitute evidence of a fixed racial quota.

            c. The record provides adequate information about the durational
limits on the Law School's consideration of race and ethnicity. Plaintiff's
suggestion to the contrary, the law requires only that a race-conscious program be
"sensitiv[e] to the possibility that [it] might someday have satisfied its purposes."

___________________
11/       No witness supports Plaintiff's argument. Allan Stillwagon, the former Law
School Director of Admissions on whose testimony Plaintiff primarily relies for
this argument, did not confirm Plaintiff's theory that the 1992 Policy incorporated
the Law School's prior admissions practices and procedures. Indeed, Mr.
Stillwagon testified that he had no formal knowledge of the 1992 Policy. (R-331,
Stillwagon TR118, JA-7212.)


26


Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 737 (6th Cir.
2000), cert. denied 121 S. Ct. 1089 (2001). The Law School has more than met
this requirement. That the Law School's interest in achieving the educational
benefits of diversity is "permanent and ongoing," Gratz v. Bollinger, 122 F. Supp.
2d 811, 823-24 (E.D. Mich. 2000), is irrelevant. While the Law School hopes
always to be able to enroll a racially and ethnically diverse student body, it may
only consider "diversity-relevant characteristics" under its Policy where the
educational benefit of such characteristics has not been "diminished or
exhausted."' (R-346, Ex. 4, Policy at 13, JA-4242.)

            d.       There are no limits on the racial and ethnic diversity that may
exist under the Law School's Policy.
The Law School considers the extent to
which all applicants will contribute to the diversity of the Law School. Its Policy
specifically mentions African Americans, Hispanics, and Native Americans
because these groups -- unlike groups such as Asian Americans -- might not be
represented at the Law School in "meaningful numbers" without a "commitment to
racial and ethnic diversity." (id.6, Ex. 4, Policy at 12, JA-4241.) This is
permissible under Bakke. See 438 U.S. at 323. That the Law School's Policy does
not mention every ethnic or racial group whose members could possibly enroll at
the Law School does not invalidate the Law School's educational judgment. See


27


Regents Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985) (holding judgments of
educators are entitled to deference). 12/

            e.       Under Bakke, the Law School does not have to choose between
diversity and defining its academic community.
Plaintiff distorts the evidence
regarding the devastating impact that the shift to race-neutral admissions policies
has had on public institutions of higher education in California and Texas, and
contends that this Court should put the Law School to a Hobson's choice: choose
between the compelling interest in the educational benefits of diversity and the
freedom to determine the role that factors such as grades and test scores should
play in your admissions process. Under Bakke, however, the Law School cannot
be forced to make this choice. As the Law School discussed at length in its
opening brief, the argument that an institution must first seek to achieve racial and
ethnic diversity by becoming less selective was considered and rejected in Bakke.
(See Br. of Appellants at 55.)

            f.       The Law School's Policy does not impose an undue burden on
third parties.
The Law School's admissions system does not employ racial quotas

___________________
12/       Contrary to Plaintiff's assertion, the Policy does not continue the pre-1992
practice of distinguishing between Puerto Ricans born on the mainland and those
born in Puerto Rico. The Law School stopped drawing such a distinction in 1992,
with the adoption of its Policy. The Law School published a brochure that
mistakenly suggested that such a distinction continued, but that error was
corrected.


28


or targets, considers each applicant on an individual basis, (R-331, Munzel TR160-
61, JA-7251-52; R-335, Lehman TR183-84, JA-7767-68), and requires that all
applicants be fully qualified, (R-333, Lempert TR113-15, 160-61, JA-7510-12,
7556-57; see also R-346, Ex. 4, Policy at 2, JA-4231). Under such a system, an
applicant "will not have been foreclosed from all consideration for that seat simply
because he was not the right color or had the wrong surname. It would mean only
that his combined qualifications, which may have included similar nonobjective
factors, did not outweigh those of the other applicant. His qualifications would
have been weighed fairly and competitively, and he would have no basis to
complain of unequal treatment under the Fourteenth Amendment." Bakke, 438
U.S. 318. Accordingly, the Law School's admissions system cannot be said to
impose an undue burden on third parties.


29


CONCLUSION

For the foregoing reasons, the district court's injunction should be reversed
and the case remanded to the district court with instructions to enter judgment in
favor of the Law School.

  Respectfully submitted,

___________________________
Philip J. Kessler
Leonard M. Niehoff
BUTZEL LONG
350 South Main Street
Suite 300
Ann Arbor, MI 48104
(734) 213-3625
John H. Pickering
John Payton
Stuart Delery
Craig Goldblatt
Robin A. Lenhardt
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000
Dated: July 27, 2001

30


CERTIFICATE OF COMPLIANCE

Pursuant to FRAP 32(a)(7) and 6 Cir. 32(a), the undersigned certifies that
this brief complies with the type-volume limitations of FRAP 32(a)(7)(C).
  1. Exclusive of the portions of the brief exempted by 6 Cir. 32(a)(7)(B)(iii), the
    brief contains 13, 904 words.
  2. The brief has been prepared in proportionately spaced typeface using
    Microsoft Word Version 2000 in Times New Roman 14 point type.
  3. If the Court so requests, the undersigned will provide an electronic version
    of the brief and/or a copy of the work or line printout.
  4. The undersigned understands that a material misrepresentation in completing
    this certificate, or circumvention of the type-volume limits in 6 Cir. 32(a)(7)
    may result in the Court's striking the brief and imposing sanctions against
    the person signing the brief.

 

_________________________
John Payton



CERTIFICATE OF SERVICE

I hereby certify that, on this 27th day of July, 2001, pursuant to FRAP 25
and 6 Cir. R. 31, I caused an original and six copies of the foregoing Brief to be filed, by
Federal Express, with:

Mr. Bryant Crutcher, Office of the Clerk
U.S. Court of Appeals for the Sixth Circuit,
Potter Stewart U.S. Courthouse
100 E. Fifth Street
Cincinnati, OH 45202-3988

I further certify that, on the same day and pursuant to the same provisions, I
caused a copy of the above brief to be served, by Fax and Federal Express, on:

David F. Herr, Esq.
Kirk O. Kolbo, Esq.
Maslon, Edelman,
Borman & Brand
300 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402
Kerry L. Morgan, Esq.
Pentiuk, Couvreur & Kobiljak
Suite 230, Superior Place
20300 Superior Street
Taylor, MI 48180
Michael E. Rosman, Esq.
Hans F. Bader, Esq.
Center for Individual Rights
1233 20th Street, N.W.
Washington, D.C. 20036
George B. Washington, Esq.
Eileen R. Scheff, Esq.
Miranda K.S. Massie, Esq.
3800 Cadillac Tower
Detroit, MI 48226

 

_____________________________
Robin A. Lenhardt
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000



APPELLANTS' DESIGNATION OF APPENDIX CONTENTS

Appellants, pursuant to 6 Cir. R. 28(d) and 30(b), hereby designate the
following filings in the district court record as items to be included in the joint
appendix.

Description of Entry Date Filed or
Admitted in
District Court
Record Entry
Number
Defendants' Memorandum of Law in
Support of Motion for Summary Judgment
5/3/99 97
Motion (and brief) by Assoc. of American
Law Schools, et al., for Leave to File Brief
Amici Curiae
5/3/99 101
Amicus Curiae Brief by American Council
on Education
5/25/99 116
Amicus Curiae Brief of the United States 5/25/99 117
Summary Judgment Exhibits

Appendix, Vol. I

Appendix, Vol. II
10/10/00 219
Defendants' Opposition to Plaintiff's
Motion to Strike Any Testimony or Expert
Opinions (Including of Derek Bok) Based
on a Consideration of the College and
Beyond Database
1/8/01 271
Exhibits in Support of Defendant's
Opposition to Plaintiff's Motion to Strike
Any Testimony or Expert Opinions
(Including of Derek Bok) Based on a
Consideration of the College and Beyond
Database
1/8/01 272
Memorandum of Law in Opposition to
Plaintiff's Motion in Limine to Exclude
Defendants' Experts Derek Bok, Claude
M. Steele, and Kent D. Syverud from
Testifying at Trial
1/12/01 277
Supplement to Joint Final Pre-Trial Order 1/17/01 285
Defendants' Motion in Limine to Exclude
Testimony of Plaintiff's Witness Gail
Heriot (with brief)
2/9/01 297
Memorandum by Defendants Regarding
Rule 32 Objections to Deposition
Designations and Evidentiary Objections
to Proposed Trial Exhibits
2/14/00 299
Defendants' Objections to Certain
Deposition Designations
2/21/01 303
List of Selected Exhibits

Exhibit 129 (Materials Related to 1999
ABA Self-Study and Questionnaire)

Exhibit 178 (Orfield Diversity Survey)


6/15/01


6/15/01


346


346

Description of Proceeding or Testimony Date Filed or
Admitted in
District Court
Transcript Page
Numbers
Transcript -- Summary Judgment Hearing 12/22/00 12
Selected Transcripts -- Trial (held 1/16/10
thru 2/16/01 before Judge Friedman U.S.
District Court for the Eastern District of
Michigan
   
Plaintiff's Counsel 1/16/01 Vol. I, 10
Testimony of Bollinger 1/18/01 Vol. III, 55-56,
184-85
Testimony of Larntz 1/17/01 Vol. II, 197-98,
200-02
Testimony of Lempert 1//18/01 Vol. III, 132-34,
154-57, 159, 162
Testimony of Raudenbush 1/19/01 Vol. IV, 71
Testimony of Shields 1/19/01 Vol. IV, 137-38
Testimony of Stillwagon 1/16/01 Vol. I, 118
Transcript Corrections 6/20/01  


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