1 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF MICHIGAN 3 SOUTHERN DIVISION 4 BARBARA GRUTTER, 5 For herself and all other 6 Similarly situated, 7 Plaintiff. 8 -v- Case Number: 97-CV-75928. 9 LEE BOLLINGER, JEFFREY LEHMAN 10 DENNIS SHIELDS, and REGENTS OF 11 THE UNIVERSITY OF MICHIGAN, 12 Defendants. 13 and 14 KIMBERLY JAMES, et al., 15 Intervening Defendants. 16 ---------------------------------/ VOLUME 1 17 BENCH TRIAL 18 BEFORE THE HONORABLE BERNARD A. FRIEDMAN 19 United States District Judge 20 238 U.S. Courthouse & Federal Building 21 231 Lafayette Boulevard West 22 Detroit, Michigan 23 TUESDAY, JANUARY 16TH, 2001 24 25 2 1 2 APPEARANCES: 3 FOR PLAINTIFF: Kirk O. Kolbo, Esq. 4 R. Lawrence Purdy, Esq. 5 6 FOR DEFENDANTS: John Payton, Esq. 7 Craig Goldblatt, Esq. 8 On behalf of Defendants Bollinger, 9 et. al. 10 11 George B. Washington, Esq. 12 Miranda K. S. Massie, Esq. 13 On behalf of Intervening 14 Defendants. 15 16 COURT REPORTER: Joan L. Morgan, CSR 17 Official Court Reporter 18 19 20 21 22 23 24 25 3 1 2 3 I N D E X 4 WITNESS: PAGE: 5 6 MOTIONS IN LIMINE 4 7 OPENING STATEMENT ON BEHALF OF PLAINTIFF 8 Mr. Kolbo 33 9 OPENING STATEMENT ON BEHALF OF DEFENDANT 10 UNIVERSITY OF MICHIGAN AND INDEPENDENT DEFENDANTS 11 Mr. Payton 38 12 OPENING STATEMENT ON BEHALF 13 OF THE INTERVENORS 14 Ms. Massie 65 15 WITNESSES PRESENTED ON BEHALF OF PLAINTIFF 16 ALLAN STILLWAGON 17 Direct Examination by Mr. Kolbo 81 18 Cross-Examination by Mr payton 114 19 Cross-Examination by Mr. Washington 119 20 ERICA MUNZEL 21 Direct Examination by Mr. Kolbo 126 22 Cross-Examination by Mr. Goldblatt 201 23 Cross-Examination by Mr. Washington 251 24 Redirect Examination by Mr. Kolbo 261 25 Recross-Examination by Mr. Goldblatt 273 4 1 2 3 E X H I B I T S 4 MARKED RECEIVED 5 Exhibit Number 4 133 6 Exhibit Number 15 194 7 Exhibit Number 14 194 8 Exhibits Nos. 180-183 223 9 Exhibit Number 10 272 10 Exhibit Number 11 272 11 Exhibit Number 106 274 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 Detroit, Michigan 2 Tuesday, January 16th, 2001 3 (At or about 9:30 a.m.) 4 -- --- -- 5 THE CLERK: Calling case, Grutter versus Bollinger, 6 et al., case number 97-CV-75928. 7 THE COURT: Good morning. 8 You may be seated. 9 May we have appearances please, starting with the 10 plaintiff. 11 MR. KOLBO: Good morning, your Honor. Kirk Kolbo. 12 I'm here with my colleagues, Mr. Larry Purdy, Kai Richter. 13 And my client, Barbara Grutter, is here as well. 14 THE COURT: Great. It's nice to see you all. 15 MR. PAYTON: John Payton, for the University and the 16 individual defendants. Craig Goldblatt is with me and Phil 17 Kessler is with me. 18 THE COURT: Good morning. How is everybody? 19 MR. KOLBO: Fine. 20 MS. MASSIE: Miranda Massie for the Intervening 21 Defendants. 22 THE COURT: Does anyone else want to put in their 23 appearance? 24 MR. WASHINGTON: George Washington. 25 MS. MASSIE: Excuse me, Judge. With me is Shanta 6 1 Driver, George Washington, Jodi Masley, Winnie Kao. 2 THE COURT: Okay. Thank you. 3 MS. MASSIE: Thank you. 4 THE COURT: Well, I guess it's the day that 5 everybody including myself has been waiting for, and we've put 6 a lot of work into it, everybody. A couple of things that we 7 should start off. Number one is we'll do the motion in 8 limine. 9 I have one of the Intervenors -- the Plaintiff's 10 motion as it relates to the Intervenors' witnesses, I just 11 received it this morning so that one I'm not prepared, and I 12 suspect the Intervenors are not prepared to argue this morning 13 either since they, I suspect, received it also. All the rest, 14 I'm prepared to listen to very short argument, none of which 15 is included on the clock, of course, and go from 16 there. 17 Let me just talk about a couple of things that I'm 18 not sure we've talked about. One is the media. I'm not sure 19 who's here and who's not here, but the record should reflect 20 that I received a call from Jodi Cohen. I don't know if she's 21 here or not here, I don't know. I'm not sure from which 22 newspaper. And I told her I don't talk about cases at all, 23 that -- ever, that ever appear before me now or any other 24 time, but that because of the importance of this case if the 25 media needed something that -- 7 1 an exhibit that they thought was important in terms of 2 studying it so they can understand the case, we would be more 3 than happy to make a copy for them, or something of that nature 4 if there's no objection by the attorneys. It's going to be 5 reported in most -- journalists don't spend a lot of time in 6 court. And I also indicated to her at that time and that's 7 why I'm repeating it today for everybody, I'm sure the 8 attorneys would not mind if there's something that needs 9 clarification, clarifying with them because I have no 10 intentions of doing it, and I can't do it. I don't think it 11 would be fair to either side for me to be involved in that. 12 So, I've just disclosed it on the record because she 13 sent me a fax, and in response to her fax, called her on the 14 phone and essentially told her the same thing that I'm saying 15 now. 16 So whoever is here from the media, if there's 17 something you need copied, either David or Steven, my law 18 clerks, will provide it, or the court deputy will be more than 19 happy to accommodate you. 20 In terms of scheduling, everyone has received a 21 copy of the schedule. In terms of breaks, I usually break 22 around 11:00 o'clock because the truth of the matter is, 23 although I don't think today I have anything, generally I, 24 schedule some miscellaneous matters at 11:00 o'clock while 25 you're on break. That's when we'll be doing our 8 1 miscellaneous matters just to keep certain things going The 2 criminal docket mostly, pleas, sentencings, things of That 3 nature. So we'll be doing those essentially at 11:00 And 4 sometime, we'll be doing those sometime in the Afternoon, but 5 always on a break so we don't have to worry 6 about that. 7 If the lawyers need a break or something of 8 that nature, let me know. I don't drink coffee as often -- 9 I never drink coffee, I don't drink anything usually in the 10 mornings so I don't need a break as often as other people 11 but if you need a break since there's no jury, just let me 12 know. Or if you need a break to confer with a witness, or 13 to make some phone calls, to line up witnesses or to 14 conduct business at your office since you're all here and 15 most of you are here from other states. Even Mr. Kessler, 16 your new office, I've been reading about it in the 17 newspapers -- 18 MR. KESSLER: That is true. Thank you for noticing 19 that. 20 THE COURT: You've got good PR. Whoever is doing 21 it, any newspaper you pick, there's your new office. I'm 22 sure it's going to be beautiful though. 23 So if something comes up, let us know, and we'll go 24 from there. 25 So the first matter we have this morning is the 9 1 motions in limine. The first motion that we have is the 2 expert testimony of Dr. Bok. I think that one has been 3 resolved, if I'm not mistaken. 4 Counsel? 5 MR. PURDY: May it please the Court, counsel, 6 ladies, and gentlemen, your Honor, very briefly, we -- the 7 plaintiffs have filed a motion to limit or exclude the 8 testimony -- the proposed testimony of three experts, and I 9 do believe we have resolved one of them. I think the three 10 experts that were listed were Derek Bok, Kent Syverud, 11 Claude Steele. If I understand the response I got from the 12 defendants I think they're withdrawing Professor Bok unless 13 they feel that if something arises and they need -- during the 14 course of trial that they need to call him -- 15 THE COURT: Is that correct? 16 MR. KESSLER: It's close. What we have also said is 17 that the Court had some questions related to -- 18 THE COURT: I can deal with that -- 19 MR. KESSLER: -- if we were less selective that 20 might solve the problem in another way. And President Bok is, 21 of course, an internationally known expert on these matters. 22 And he will be prepared to come here and offer testimony on 23 that sort of subject -- 24 THE COURT: I don't need it. That's not really part 25 of this case. I asked the question, there's no. 10 1 question, -- 2 MR. KESSLER: That's fine. 3 THE COURT: I don't need it. It's nothing -- 4 good. I would like to hear him. I think -- I've read his 5 resume and I think just even seeing him -- he's a gentleman 6 that's accomplished so much. But as I say, if that was the 7 only reason you were calling him -- I had asked that question 8 at the time, it was more rhetorical, more curious than 9 anything else. 10 MR. PURDY: I appreciate that. I think we've 11 resolved that. 12 THE COURT: Right. Then the next one we have is 13 Kent Syverud. 14 MR. PURDY: Yes, sir. Kent Syverud, he's the Dean 15 at Vanderbilt Law School, your Honor. 16 Plain and simply, if you look at his 17 reports, there all about educational benefits of diversity. 18 And, of course, your Honor, as everyone had made clear no one 19 is contesting that there are educational benefits of 20 diversity. It's simply not an issue in the case. The Court is 21 going to decide whether an educational institution is 22 interested in diversity, they have to have governmental 23 interest as a matter of law. There's no facts that need to be 24 heard there. 25 THE COURT: That's what -- 11 1 MR. PURDY: It's his own impressions. If you look 2 at his report, that's all it is. 3 What they suggest in the response, what the 4 defendants suggest in their response is that they actually 5 want to bring Dean Syverud in to testify about what is 6 meant by "a diverse student body." And I guess, your 7 Honor, the problem we have with that is I don't think that 8 calls for expert testimony. The University clearly contends 9 that they have a diverse student body. They have the 10 figures about what their racial and ethnic mix are -- are 11 going to before the Court. They contend that they have a 12 critical mass. They contend they get the benefits. You don't 13 need an expert to come in and say, well, you know, here's my 14 impression of what's meant by diverse student body. They have 15 it. 16 And the question before the Court, as the Court has 17 laid out in its Order, is what is the extent to which the 18 University uses race which they obviously acknowledge that 19 they do, and whether or not the extent which they do 20 constitutes a double standard. I just don't see where Dean 21 Syverud has anything to add to that. 22 And I might note furthermore that they do have 23 Professor Raudenbush who is going to come in and talk about 24 various purported admissions policies which would create 25 different levels of diversity. And he has a report that he 12 1 will be testifying that basically as I understand, a 2 supplemental report that we received from Dean Syverud last 3 Thursday or Friday, is basically he's going to come in and say 4 I agree with Professor Raduenbush, you use one policy in order 5 to get the diversity that they have, and if you don't do that, 6 you get something else. I just don't think that adds 7 anything, your Honor. 8 Finally, Dr. Steele -- 9 THE COURT: Let's talk about them one at a time. 10 MR. PURDY: Sure. 11 THE COURT: Mr. Kessler, are you going to argue 12 it? 13 Can everybody hear in the courtroom? Speak up if 14 you can't. Is the microphone on? 15 Mr. Kessler? 16 MR. KESSLER: Your Honor, Dean Syverud has very 17 important and directly relevant testimony to offer here. 18 He is a nationally acclaimed expert in the education of law 19 students and legal education itself. He was a professor at 20 the University of Michigan Law School from -- 21 THE COURT: I'm well aware of him. I've read his 22 resume and -- again, what can he offer here? Tell me -- I 23 would like to see him. I've talked to him on the phone 24 Many, many times. I've used him as a mediator in cases. 25 I've never met him, but I've talked to him probably -- 13 1 many, many times. 2 MR. KESSLER: The plaintiff herself in papers 3 that were filed -- and I guess the Court just received and 4 I just received last night recognizes the nexus between the 5 questions -- the two questions in particular that the Court -- 6 the first two questions that the Court has set for trial, the 7 extent to which race is taken into account, and whether 8 there's a double standard, and the question of the policy and 9 critical mass. 10 Let me just read from the bottom of page 1 and 2 of 11 their Opposition papers on Mr. Stillwagon that they filed last 12 night. Two of the key questions which will be litigated at 13 trial -- 14 THE COURT: Are you reading from what, one more 15 time? 16 MR. KESSLER: This is the bottom of page 1 and the 17 top of page 2 of Plaintiff's Memorandum of Law in Opposition 18 to the Defendant's Motion in Limine. This concerns the 19 testimony of Mr. Stillwagon. 20 THE COURT: Page what? 21 MR. KESSLER: The bottom of page one -- 22 THE COURT: Okay. 23 MR. KESSLER: Starting with two of the key 24 questions, do you see that? 25 THE COURT: Yes. 14 1 MR. KESSLER: Two of the key questions which will be 2 litigated at trial are, one, the extent to which race is 3 factor in the law school's admissions decisions. And, two, 4 whether the law school's consideration of race in making 5 admissions decisions constitutes a double standard in which 6 minority and non-minority students are treated differently. 7 The Faculty Admissions Policy adopted in 1992 8 sheds some light on these issue. For example, the policy 9 makes explicitly clear that the law school is committed to 10 admitted to "meaningful numbers" or "a critical mass" of 11 African-Americans, Hispanics, Native Americans even if 12 Their graded performance in college and on the LSAT is 13 "relatively far" below that of other applicants, with a 14 transcript cite. 15 Dean Syverud will testify about the meaning of 16 "critical mass." He will testify to what he saw of 17 critical mass at the University of Michigan Law School over 18 a ten-year period. He will testify as to what he has come 19 to understand that to mean as the dean and an ongoing 20 member of the faculty at the Vanderbilt Law School. He 21 will testify as to what he has seen in the converse 22 situation where you have tokenism or no diversity at all. As 23 he has seen for ten years in summer classes that he has taught 24 -- 25 THE COURT: What's the relevance to the issues 15 1 before the Court? 2 MR. KESSLER: The extent to which the law school 3 considers race and takes it into account is driven by its 4 objective of bringing together a critical mass of qualified 5 minority students. 6 To understand and to have the Court have a deep 7 appreciation for what critical mass means in that context is 8 to understand the very parameters of the extent to which race 9 is taken into account. It is the literal parameters around 10 which the answer to the Court's question one arises. 11 And it's very important that you hear that testimony. I would 12 say that especially that in a case of this profound national 13 importance and social importance that can have affect for 14 generations beyond anyone even in this courtroom, to start to 15 artificially limit testimony that bears directly on central 16 questions would really be most inappropriate and completely at 17 odds with Rule 702. 18 And he is also going to testify -- I think Mr. 19 Purdy made reference to this -- he will testify as well 20 that when you look at Professor Raudenbush's meticulous 21 statistical analyzes and he shows us what will happen if we 22 maintain the kind of a policy that we have now in place and 23 have had since 1992, or we abandon it in favor a race neutral 24 policy. 25 Professor Raudenbush tells us the kind of numbers 16 1 of minority students who can be expected to be admitted to 2 the law school. And Dean Syverud will testify that those 3 kinds of very small numbers that Professor Raudenbush 4 projects don't work. They amount to tokenism. And rather than 5 being helpful in producing the kind of important educational 6 benefits that this law school is committed to producing, you 7 will have a counter-productive result. You need to hear that 8 with all due respect. And, frankly, the record needs to 9 reflect it. 10 THE COURT: Any rebuttal? 11 MR. PURDY: Sure. Your Honor, I mean, I accept 12 everything Mr. Kessler says about what the testimony will 13 be. It's interesting if you look at the first two reports 14 of Dean Syverud, one dated back in 1998, and one dated 15 again in the year 2000, the word "critical mass" never 16 appears one time. He never talks about critical mass one 17 time. 18 What they've done, is we've filed our motion. We 19 talked to the defendants last week, and we tried to get a 20 consultation. In fact, we were going to call and what 21 objections we may have had. And we told them after they said 22 they were going to call Kent Syverud, we alerted them, we 23 said, look, he's just a diversity expert. And if you 24 read his report, that's clearly all he talks about. He talks 25 about the educational benefits he sees from a level 17 1 of racial heterogeneity within the classroom and those sorts of 2 things. We understand that. 3 But the question is -- Judge, we have two 4 questions. What is the extent to which this defendant takes 5 race into account in its admissions system. He offers nothing 6 on that. And, secondly, whether it's a double standard. He 7 offers nothing on that. 8 His evidence may be interesting from a diversity 9 standpoint, and someone can clearly -- has strong views about 10 what a level of racial diversity may bring or what the lack of 11 it may not bring to a classroom. But that doesn't have 12 anything to do with what we're here today to talk about. And 13 that's the point, your Honor, we -- the critical mass is -- 14 that's the subject that they want to get into, define the 15 critical mass. 16 And I might point out, critical mass appears in the 17 Admissions Policy. It's a clearly relevant and important 18 Term that the Court is going to hear a lot about, what does 19 "critical mass" mean. And they've listed witness after 20 witness who were involved in developing the policy where 21 that phrase was used. If they want to talk about it -- I mean, 22 if we wanted to go out and have -- bring twenty experts in 23 from around the country and say here's my definition of 24 critical mass, I mean, how would that help the Court. I mean, 25 as the University has used the phrase 18 1 they've got witness after witness that can tell you what it 2 means. And they say they have it. 3 So, your Honor, I just think it's redundant. It 4 doesn't really help the Court at all. And it's brand new. 5 The phrase "critical mass" never appeared in one report until 6 last Thursday. 7 THE COURT: In this matter -- I can't -- we'll go 8 all day, if I let you go back and forth. 9 In this matter, the Court will deny the motion. I 10 will allow the defense to call Dean Syverud, however, with 11 the understanding that I'm not making a ruling as to 12 relevance of his testimony. I've had a chance to read all of 13 his reports, and it appears that all his reports talk about the 14 diversity issue. It talks about when he first became a 15 professor and how he changed his mind, and all that. I don't 16 think that's relevant. And I'll tell you right now and 17 probably -- if there was an objection, would probably exclude 18 it only because that's not the issue before the Court today. 19 However, if the defense believes that there's some relevance 20 in his testimony, critical mass or otherwise, then I think I 21 should not exclude that. Therefore, the Court will allow him 22 to -- 23 MR. KESSLER: Thank you, your Honor. 24 MR. PURDY: Your Honor, that leaves us with Dr. 25 Steele. Dr. Steele is a professor out at Standford. And 19 1 he has developed an interesting theory that relates to what he 2 believes is a reason why there may be some disparities between 3 standardized test scores for certain minorities and others, 4 therefore -- I guess what it amounts to is some reason why if 5 a school wants to make an excuse to employ a double standard, 6 if you will. My understanding is it's the University is they 7 don't have a double standard. And Dr. Steele is going to be 8 talking -- it's just a theory called a "stereotype threat." 9 He believes it may effect -- or artificially depress test 10 scores of certain minorities. 11 I did go through his deposition, and we attached 12 transcripts to our motion, your Honor. He has no knowledge. 13 He will not connect up a single one of Michigan's applicants 14 with the concept of "stereotype threat." He's never done any 15 analysis of whether any of the people who applied may have 16 been effected by stereotype threat or whether any of the 17 students -- any minority students or majority students for 18 that matter, but he stated that stereotype threat can effect 19 everybody. 20 So I don't know what it has, your Honor. It clearly 21 has nothing to do with the two issues that this Court has laid 22 down for trial which is simply the -- 23 THE COURT: How about academic ability, one of the 24 things the defense have indicated in their response is 25 academic ability. Relevant or not relevant? 20 1 MR. PURDY: Academic ability is relevant. I think 2 everyone's academic ability is relevant, your Honor. 3 And the University is certainly free to evaluate different 4 people, different applicants' academic abilities differently 5 depending upon what the entire file looks like. 6 I assume that's true for every applicant, every candidate 7 regardless of race. 8 Dr. Steele focuses specifically on one aspect which 9 is the standardized testing. And he suggests that -- as he 10 says -- in fact, they say in their response, that stereotype 11 threat and other external pressures artificially depress 12 minority student performance on standardized tests. 13 Now, what that suggests to me, your Honor, if the 14 University wants to take the position now that that is an 15 excuse that the University may use by employing a different 16 standard for certain minorities but looking at their test 17 scores, that would be an entirely different case. It's my 18 understanding the University is not prepared to make that 19 concession, that they, in fact, do use a double standard, and 20 do it because of Dr. Steele's theory. 21 I might also point out Dr. Steele's theory is the 22 best that we can tell from the record was never even 23 considered by the University when they adopted their 24 admissions policy. So it play no role. I mean, it's an 25 interesting theory, and Dr. Steele like a number of the 21 1 witnesses in this case, your Honor, is somebody that we would 2 be fascinated to hear from. But I don't think it has anything 3 to do with the limited issue before the Court. So we would 4 ask that it not be allowed. 5 THE COURT: Mr. Kessler. 6 MR. KESSLER: Your Honor, they have put this ball in 7 play with the double standard argument. They're double 8 standard argument boils down to this: You, law school, have 9 admitted minorities whose average grades, average grades and 10 average LSAT scores are somewhat lower than the average grades 11 and test scores for white students. That is a double 12 standard. 13 Professor Steele is one of several witnesses who will 14 offer a complete negation of that position and show how 15 wrong-headed it is. 16 THE COURT: Except how does it relate to this 17 factual situation and this particular case as oppose to just 18 generally what his opinion may be? 19 MR. KESSLER: One thing he's going to do is 20 testify as to the significance and the significant 21 limitations on LSAT scores. What they mean; what they 22 don't mean; what they help to do; what they don't help to 23 do. This argument of double standard is based on a very 24 slight difference in average LSAT scores. That is one 25 of the two bases of their argument. You'll hear in the 22 1 opening and all the way through the trial that in every 2 procedural respect all of these applications are treated in 3 exactly the same way. The double standard -- 4 THE COURT: Did Dr. Steele study the University of 5 Michigan Law School's situation? Did he -- or is it just 6 general? 7 MR. KESSLER: He did not study the University of 8 Michigan Law School situation. His opinion is that he is 9 an expert on the effect, significance and limitations on the 10 significance of standardized test scores including the LSAT 11 score. It's the LSAT score in general, not the LSAT 12 score at the University of Michigan that is one of the two 13 prongs of the plaintiff's dual standard argument. They say 14 that the LSAT scores on average are somewhat lower for 15 minority students than they are for majority students. 16 Obviously we're entitled to put that in prospective and 17 show that sort difference doesn't mean anything, and doesn't 18 constitute a double standard. And that's quite 19 apart from Dr. Steele's research and experimentation on the 20 stereotype threat which is a long way from just a theory. 21 It's based on years and years of research. And it shows that 22 groups who are subject to stereotypes including but not 23 limited to some of the minorities at issue here will perform 24 in a less successful way on standardized tests particularly 25 if they're driven. About the importance of the 23 1 test. 2 So the more important the test is to them, the more 3 likely it is ironically that they won't do as well on it. 4 That is directly on the point on the dual standard. And we 5 certainly are entitled to make a record of that. 6 And frankly, I think the Court would benefit from 7 hearing it. 8 THE COURT: Rebuttal? 9 MR. PURDY: Your Honor, again, I'm not going to 10 disagree with anything that Mr. Kessler says. Dr. Steele 11 Has developed a theory and frankly it's not after years and 12 years of research. It's something that came up if I'm not 13 mistaken I think the record will reflect it was originally 14 published in 1995, some three years after the admissions 15 policy at issue were developed in this particular case. 16 And I think Mr. Kessler is walking that line that I'm quite 17 intrigued by which is, look, there's a reason why we can do 18 what we do, why we can actually either deemphasize the test 19 for certain people depending upon their race or ethnicity, or 20 why we can use a double standard. I mean, we're excused for 21 doing that because Dr. Steele says these particular scores 22 should be depressed. I guess I just don't -- first, he makes 23 clear he's never -- he doesn't even opine whether a single 24 one of the applicants -- I asked him the question, it's in the 25 record, whether a single one of the applicants 24 1 of the University of Michigan, minority or otherwise, were 2 effected by stereotype threat. There's no analysis that he 3 has. He has no knowledge of the admissions policies. 4 And, your Honor, it's like everything else, I mean we 5 can talk about the about the various reasons for why there may 6 be differences in certain groups of test scores. I don't know 7 what that has to do with the two issues that this Court has 8 set down for trial. 9 THE COURT: Okay. In this matter, again, the Court 10 is not -- you didn't file a response that's why I have not 11 allowed you to speak. 12 MS. MASSIE: I understand that, Judge Friedman. 13 It's just that this -- we're going to be covering the 14 motion that plaintiff has filed on us tomorrow. This 15 exchange goes to the heart of the Intervention phase as 16 well. 17 THE COURT: It may. But, you know, we've got to 18 follow the rules. If you had filed a response or something 19 I would have been more than delighted to have let you argue 20 anything. But each side -- anyhow, in this matter the Court 21 will allow Professor Steele to testify, again, however 22 with the understanding that I'm not ruling by any means that 23 it's relevant and because part of the reason that I set 24 some time limits on it was to give each side as much 25 flexibility as I could and to utilize their 25 1 time in the manner in which they best felt would present their 2 case and perhaps even make a record although I'm not as 3 concerned about making a record, I'm more concerned about 4 dealing with the issues that are before the Court that I have 5 enumerated for the record if that's what your desire to do is 6 fine also. 7 I will allow Professor Steele. 8 MR. PURDY: Thank you. 9 MR. KESSLER: Thank you. 10 THE COURT: We have one other motion and that -- we 11 have other motions. One is the Intervenors which I've 12 indicated we will handle in a bit. And the other one is the 13 defendant's motion as to the plaintiff, Ms. Grutter, 14 testifying. It's my understanding that the plaintiff's have 15 decided at this point not to call Ms. Grutter. Is that 16 everybody's understanding? 17 MR. PURDY: That's correct, your Honor. 18 THE COURT: Okay. Just so the record is clear. 19 And the next one we have is the issue as to Alan 20 Stillwagon. 21 MR. PAYTON: Your Honor, we filed these motions 22 because we thought that neither Mr. Stillwagon nor Ms. 23 Grutter had any relevant testimony, any relevant testimony 24 with the first two questions the Court set for trial the 25 extent to which race is used and whether or not there's a 26 1 double standard. 2 THE COURT: Just, again, at least I forget, and I 3 don't want to forget, is that the plaintiff's motion in 4 relation to the Intervenors' witnesses -- again, I hope 5 everyone will address it at the appropriate time, is very 6 similar to the issues raised as to Plaintiff Grutter. I 7 think. I'm just thinking out loud. I haven't had a chance to 8 really study it, but I read it very, very quickly morning 9 because it just came in this morning. 10 Go on, I'm sorry. 11 MR. PAYTON: I actually haven't read that motion 12 carefully either, but I think they are, in fact, different. 13 THE COURT: They may be. I just don't -- the only 14 reason I said it right now is because I was thinking of it, 15 and I wanted to at least make sure that everybody at least -- 16 we're all in a position to at least address it. 17 MR. PAYTON: Sure. 18 THE COURT: It's not here today. Okay, as to 19 Stillwagon. 20 MR. PAYTON: Mr. Stillwagon. This case is about the 21 current admissions policies and practices of the law school. 22 I don't think there's any question about that. This phase of 23 the case is about only injunctive and declaratory relief. 24 It's what we do right now. 25 Mr. Stillwagon was the Director Admissions from 27 1 1997, to 1990, August of 1990. That's eleven to twenty- years 2 ago. He has had nothing to do with the law school since then, 3 since August of 1990. He's not had any contact with any 4 person in the Admissions Office since that time. 5 In April of 1992, the faculty, the whole faculty, 6 adopted a new admissions policy, a new comprehensive written 7 policy which you've seen and which is going to be obviously a 8 major document in this trial. It was written a faculty 9 admissions committee that worked on it for eight months. 10 Worked very hard to produce the document. 11 A new director of admissions served on that 12 committee, contributed to the discussions and the policy, and 13 was charged with implementing that policy. The parties have 14 stipulated in the Joint Pretrial, they have stipulated that 15 the director of admissions is charged, charged with 16 implementing that 1992 policy. The parties have stipulated 17 that the 1992 policy has remained in effect, unchanged since 18 it was adopted in 1992. I don't think there's any dispute 19 about how it's been operated. 20 Plaintiff concedes in her opposition that Mr. 21 Stillwagon has no knowledge of the system as it has 22 operated since 1992. She argues instead, but plaintiff is not 23 Stillwagon on that subject. That's the only subject of this 24 trial. Our admissions policies; how they'll operated 25 what we do. That's the only subject of the trial. 28 1 Given that we have a comprehensive written 2 admissions policy about which there is no real issue about 3 how it's being operated, that's what the whole trial is 4 about. 5 Now, she makes as her final argument that her case is 6 brief, Mr. Stillwagon's testimony won't be very long, but he's 7 here. All that's true. But his testimony isn't relevant to 8 anything that we're going to be talking about. We have the 9 policy which was adopted two years after he left. It's being 10 implemented by new admissions officers. It's been in effect, 11 unchanged. Admissions counselors and officers are charged 12 with implementing that 1992 policy. That's all this trial 13 ought to be about. 14 THE COURT: Thank you. 15 MR. KOLBO: Your Honor, Kirk Kolbo, for the 16 plaintiff. 17 I can be fairly brief. There's a very simple and 18 basic reason why Mr. Stillwagon's testimony is relevant. The 19 most basic level is to provide the Court some background in 20 this case. 21 The 1992 policy was a new written policy, but in the 22 policy itself, it went on to say, and I'm quoting from the 23 1992 policy. 24 "Our object in this memorandum is as much to 25 Ratify what has been done, to reaffirm our goals 29 1 as it is to announce new policies." 2 I think this Court is entitled to hear what about 3 the old policy that's still in the new policy. How did the 4 old policy operated in such a way that one can understand in 5 what respects the new policy is very similar to it. 6 There's another reason, your Honor, where I think 7 there's some relevance to hearing this. There's a document, I 8 think it's Trial Exhibit 61, that states the 1992 policy was 9 basically to address a new articulation as to what had 10 happened before. If it's just a new articulation, your Honor, 11 that's very useful, it seems to me to have the Court 12 understand how the old policy which in may respects was 13 similar was articulating. One of the things the Court will 14 discover through documents and as well through Mr. Stillwagon 15 is the law school operated with what is called a Special 16 Admissions Program. 17 We think one of the things the evidence will show 18 in this case is that the law school still operates in 19 effect and in substance a special admissions program with 20 respect minority students. It would be helpful to the 21 Court, and that's what we're talking about there, at the most 22 basic level, there's some helpfulness to understanding what 23 the old system was like so it can be compared to the new 24 system in particular with respect to the fact that many 25 areas the new system, as I say, ratifies policies of the 30 1 old system. 2 It's going to be short testimony, your Honor. I 3 think it will provide the Court some useful background. We 4 took a number of depositions in this case in which we 5 learned that virtually all of the current law schools 6 officials pled pretty much ignorance about how the system 7 worked prior to 1992 during Mr. Stillwagon's tenure. They 8 simply plead sort of amnesia on that. So we think it's 9 helpful for the Court to understand what Mr. Stillwagon was 10 doing, how he was operating under the mandate of the policies 11 that were in effect at that time, and to compare them to the 12 evolution of the policy that occurred in 1992. We think it's 13 very relevant in that point, your Honor. 14 THE COURT: Thank you. 15 MR. PAYTON: I find this almost amazing. Mr. 16 Kolbo admits up here that, in fact, none of the current 17 people had any responsibility for operating the admissions 18 program since 1992, and he's deposed them all. He doesn't 19 seem to know anything about how it was operated in the 20 1980s. That seems to me conclusive that what was happening in 21 the 1980s is not relevant to how they were operating the 22 system. 23 Now, we can do a historical sort, you know, sort 24 of retrospective on of what's been going in the 1980s, and how 25 things happened in the 1980s, but if the people who 31 1 operated the policy since 1992 don't have any contact with that 2 or even know what happened, what does it matter at all, at 3 all. 4 THE COURT: Again, without ruling on its 5 relevance, the Court will allow Allan Stillwagon to 6 testify. Again, relevance is not one of the reasons that 7 I'm making that ruling. I think that, again, it's important 8 for each side to put on their case the way they feel it 9 should be put on without wasting time of either side and the 10 Court. Therefore, the Court will allow that. As I 11 indicated before, the plaintiff's motion in limine as. 12 To the Intervenors' witnesses I will -- we'll talk about it 13 You know, at the end of the day, see how much time each 14 side needs in order to respond according since I don't 15 think it's going to come up for awhile, and we can go from 16 there. 17 Any other preliminary matters before we proceed? 18 Okay -- yes, Mr. Payton? 19 MR. PAYTON: This is just housekeeping. What do you 20 plan on the way of lunch? Is there a regular time? 21 THE COURT: Good question. I usually like to 22 break for lunch -- what I'd like to do to be honest with 23 everybody, if we have a witness, and -- I don't like to 24 break inbetween, you know -- I like to break at a good 25 point so we can do it. Usually I take a lunch between 32 1 12:30, 1:00, 1:15, in that area. But if we're in the 2 middle of a witness, and we can get that witness out by 3 working another fifteen, twenty minutes, you know, not have 4 to bring that witness back -- 5 MR. PAYTON: An hour? 6 THE COURT: An hour is fine. Is that okay 7 with -- 8 MR. KOLBO: That's fine, your Honor. 9 MS. MASSIE: Fine with us. 10 THE COURT: Okay. If turns out you need a little 11 bit more time because unfortunately Downtown Detroit doesn't 12 have a whole lot of eating spots, let us know, but let's plan 13 on an hour for lunch. 14 Okay, we're going to go on the clock. As I indicated 15 one other time, I'm certainly welcome to hear some Opening 16 Statements. I know a lot about the case. I've read a lot of 17 the information in terms of the Motion for Summary Judgment 18 and so forth. So you may proceed. 19 Just so you know about the time -- and as I 20 indicated, there's going to be a sheet up here every day. 21 David and Stephen will be keeping time. We've got three 22 time watches. The time will be any time that's used -- 23 other than objections unless the objection -- if it's too 24 hard to stop and go on with the objection, with the 25 understanding that I wanted to do it just to keep things in 33 1 perspective. I mean, if someone needs an extra hour or 2 two, or something, I'm not going to tell you, you can't do 3 it. But it's just so we have some way of keeping it together. 4 But on the same token if someone needs another twenty hours, 5 you're probably not going to get it, but I'm not going 6 to say, you know, for a couple of hours that you can't -- if 7 you have some things that you have to -- that are 8 important to you, that you have to put in, I certainly 9 understand. 10 The record should reflect that we talked about -- the 11 time I gave you was really based upon the estimates you gave 12 me in terms of how long you thought the case should take and 13 so forth. 14 With that said -- oh, the other thing, there's 15 going to be some sheets up here. We're just going to do a 16 cumulative total every day. You are more than welcome 17 to take a look at the sheets. We're just going to keep them 18 right here. There's no secret. My law clerks are going to 19 keep the time. We have a backup timing, Jeremy Segal, he's 20 an undergrad student at the University of Michigan. They have 21 a program up there where we take an undergrad student every 22 year through one of the professors. So he spends a 23 semester with us. And he's going to be kind of a backup 24 timing. And we also have student from Wayne University who's 25 an undergrad student that wanted to -- just kind of 34 1 back us up in case we forget to turn the clock. The student 2 from Wayne isn't here today, but he'll be here tomorrow. He 3 will be probably every other day with Jeremy or something of 4 that nature. Just so everybody who he is. 5 Okay. You may proceed. 6 OPENING STATEMENT 7 MR. KOLBO: Thank you, your Honor. 8 Again, Kirk Kolbo, on behalf of the plaintiff. 9 I know, your Honor, that you are very familiar 10 with the facts of this case, and I'm going to be very 11 brief. 12 We have a simple case. I simply want to give the 13 Court sort of an idea of what we're going to be doing and what 14 our time frame is. We expect to put our case in, in one or 15 two days, perhaps three days at the most. And I just want to 16 tell the Court a little bit about what that's going to look 17 like. 18 In a technical sense, your Honor, I think our 19 burden actually has already been met in this case in so far 20 as the Court is not going to be trying the question of 21 whether or not race was used as a factor in the admissions 22 process. I think technically probably once that point had 23 been conceded, the burden shifted to the defendants to 24 establish a compelling governmental interest which, of course, 25 the Court has taken under advisement as a matter of 35 1 law in terms of whether diversity is that interest. And, 2 secondly, their burden is to demonstrate that if they have 3 established a compelling governmental interest that the means 4 that they use, the manner, the extent to which they take race 5 into account in the admissions process is a narrowly tailored 6 one. And I understand that basically is the fact, that legal 7 question, is what's going to be tried here in the next several 8 weeks. 9 Although we're not technically perhaps required to 10 put on evidence at this point in view of that burden and the 11 burden shifting, we do think it's appropriate as the 12 plaintiffs in this case to let the Court hear and to have the 13 plaintiffs go forward with some of the evidence on the manner 14 and the extent to which race is used in the process. 15 We're going to do it basically, your Honor, 16 through three witnesses, and then a variety of documentary 17 evidence as well as some deposition designations in the 18 case, your Honor. We're going to start out as the Court 19 has already heard the motions in limine with some background 20 testimony. And I except that background testimony to be 21 provided by Mr. Allan Stillwagon who was involved in the 22 Admissions Office, was the principal Admissions Officer, 23 responsible for carrying out the admissions policy of the 24 Law school from about 1979, until about -- I think the 25 last year, the last academic year for 36 1 2 Which he made admissions decisions was 1990. 3 I expect that Mr. Stillwagon will provide testimony 4 In some detail but in particular with respect to how 5 the law school operated what it called very candidly at the 6 time and accurately a special admissions program that operated 7 for minority students, for certain designated minority groups. 8 And that program I believe he will explain again in much 9 detail than I'm going to elaborate on here, provided that 10 through a series of faculty resolutions and mandates 11 throughout the 1970s, I think principally the faculty mandated 12 that the admissions office was responsible for making 13 admission decisions in a manner that would lead probably to 14 the enrollment of approximately ten to twelve percent 15 unrepresented minority students from the designated minority 16 groups. And that the special admissions program was to be 17 used if that enrollment level couldn't be reached through the 18 regular admissions process. And effectively, I think what 19 Mr. Stillwagon's testimony will demonstrate and we think a 20 number of the documents that we will be offering as well will 21 demonstrate that the special admissions program was, in 22 effect, basically a manner of considering academic credentials 23 of minority students, of these designated minority students 24 under a very different and lower standard that was generally 25 applicable in the regular admissions process. That will be 37 1 kind of a background, your Honor, for what I believe is pretty 2 much undisputed about the way the admissions process worked at 3 least up until the time that Mr. Stillwagon departed again, 4 that last academic year was for 1990. 5 Then, your Honor, our second witness is 6 going to be the current director of the admissions office 7 for the law school. Her name is Ms. Erica Munzel. I believe 8 her testimony will be -- and I'm not going to go into any 9 detail here, your Honor, because we'll get this in the 10 course of the trial -- but Ms. Munzel I believe has been 11 in the admissions office since approximately January or so of 12 1993. She was associate director, basically number two in 13 charge next to Dennis Shields until approximately I believe 14 it was early of 1998 sometime. And since 1998, she has been 15 either the acting director of admissions or the director of 16 admissions for the law school. So that she is the one. 17 That is knowledgeable about how admissions have worked in the 18 law school for the last couple of years before that, at least 19 back in 1993. And she is the individual that is knowledgeable 20 about how the admissions policies work to date in light of the 21 new policy. So we're going to have some testimony from her on 22 that subject. 23 24 Finally, your Honor, our last witness will be our 25 expert witness in this case, Dr. Kinley Larntz. He is 38 1 professor emeritus at the University of Minnesota where he 2 has taught, I believe approximately thirty years. He is 3 the former chairman of the University of Minnesota's 4 Department of Applied Statistics. And I'm not go into any 5 detail here, your Honor, with respect to Dr. Larntz' expected 6 testimony. 7 There were, as the Court is familiar, we filed about 8 five -- four or five of his reports as part of the Summary 9 Judgment record. Much of his testimony, in fact, really all 10 of his testimony, the substance of it, will be based on large 11 part upon those expert reports. We put together a 12 presentation for the Court, sort of a summary presentation 13 because the report themselves are very extensive and it would 14 take days to have a witness take us through it. So we put 15 together an abbreviated sort of summary presentation that Mr. 16 Larntz, Dr. Larntz will present to the Court as part of his 17 testimony. 18 And basically what Dr. Larntz did, your Honor, as a 19 statistician, he worked with -- he was given access to the law 20 school's database. They maintain a data base each year that 21 contains a variety of information and characteristics on 22 applicants, residencies, grades, test scores, gender, a 23 variety of things. And he was able to do a variety of 24 comparative physical analyzes with that database basically for 25 a six-year period, your Honor. From 1995, which is the first 39 1 year to which this class has been certified right up until the 2 most current class, the first-year class that was enrolled in 3 the year 2000. 4 And what we expect that Dr. Larntz' testimony will 5 show is that race is not just used as a -- I guess a plus 6 factor that might sometimes tip the scale in close cases, but, 7 in fact, it was more in the nature of a super factor that has 8 enormous consequences, particularly at middle ranges or a 9 combination of LSAT scores and undergraduate grade point 10 averages. 11 use a lot of sort of comp English when I talk about 12 size, your Honor, of the preference we believe is pretty 13 clearly given at the law school for race. But what we asked 14 Dr. Larntz to do is try to put that in a little more 15 scientific and quantitative form, and that's what we expect 16 his testimony will do. 17 And, finally, your Honor, we also intend to put 18 our case in through a number of exhibits, deposition 19 designations and so forth. At the end, we expect your 20 Honor, to be able to demonstrate not simply by the 21 preponderance of the evidence that race is used in an 22 improper manner here, but we think we can establish that 23 decisively through the evidence and the witnesses that you 24 will hear in the next two weeks. 25 THE COURT: Thank you. 40 1 MR. KOLBO: Thank you, your Honor. 2 THE COURT: I appreciate it. 3 OPENING STATEMENT 4 MR. PAYTON: Good morning, your Honor. 5 Mr. Kolbo is correct that it is probably realistic to 6 look at this case as having the burden that primarily falls on 7 us since we have an affirmative defense. And I think I'm 8 going to try to be brief, but I'll be a little bit longer than 9 Mr. Kolbo, but not that long. 10 This case -- we're going to use a few of the 11 exhibits just in the course of this matter here. This 12 case, unlike some others, about the use of race as a 13 factor, along with many other factors in the admissions 14 process. Is greatly helped by the fact that we have a 15 comprehensive written admissions policy that governs all 16 admissions. 17 The three witnesses that Mr. Kolbo indicated he's 18 going to call, Mr. Stillwagon, as you will see as I think 19 everyone has conceded, the plaintiffs as well, doesn't know 20 anything about that policy. It was developed after he 21 left. 22 Mr. Larntz, the plaintiff's statistical expert also 23 does not know that policy. He has constructed a model that 24 generates the number that Mr. Kolbo was referring to 25 and his model does not reflect our process. And I don't 41 1 even think he claims it reflects how we make our admissions 2 decisions. 3 Now, Ms. Munzel, another of his witnesses, is our 4 current Director of Admissions, and she certainly knows how 5 the policy works. And she will testify that race is merely 6 one of many factors that are taken into account on a 7 file-by-file basis to achieve one aspect of our comprehensive 8 admissions policy that values diversity. She will make it 9 point blank that there is no dual system. 10 Mr. Kolbo left the impression that the odds of a 11 minority student getting, versus a majority student getting 12 into the University of Michigan were much higher. He said 13 that race is -- and I use every day language a super factor of 14 enormous consequences. 15 Let me give the Court the numbers that I believe 16 matter. And that will be presented to the Court as 17 undisputed, that is, the data is the data. 18 For 1997, that's the year that Ms. Grutter 19 applied, three hundred African-American students applied to 20 The University of Michigan Law School, three hundred. Of 21 those three hundred, two thirds were rejected. And only 22 one hundred three were offered admissions. That's 34.3 23 Percent were offered admission. Twenty-seven came. 24 Twenty-seven out of a class of three hundred and sixty-two, 25 7.5 percent. Same year, 1997, one thousand nine hundred 42 1 eighty-two white students applied to the University of 2 Michigan Law School. Of those one thousand nine hundred and 3 eighty-two, seven hundred and eighty-three were offered 4 admission, 39.4 percent. A higher percentage of offers than 5 for the African Americans. 6 Put it the other way, the law school rejected a 7 larger percentage of the African American applications, than 8 the percentage of the White applications. Two hundred and 9 thirty-three of the white offerees came. Out of the class, 10 same class, three hundred and sixty-two, that's 64.4 percent. 11 About nine times the number of white students came than 12 African Americans. 13 I would say that by any measure, any measure at 14 all, the numbers of minority students that we have the 15 University of Michigan Law School, have been modest, 16 twenty-seven African Americans in Ms. Grutter's year of 17 1997. 18 Professor Steven Raudenbush, our expert on 19 statistical analysis, has reviewed all of this data. And 20 his analysis shows that even if there was no minority 21 students at all, that is, if we simply eliminated the 22 under-represented minority students from the applicant 23 pool, just took them out, that the resulting increase in the 24 rate of admittance for the black students would be marginal. 25 It would be an increase of six percent. It would go from 43 1 thirty-eight to forty-four percent in 1997, Ms. Grutter's 2 year. That's if all the minority students were simply 3 excluded. 4 And what's driving this is the fact that there aren't but so 5 many under-represented minority applications or students in 6 the first place. And, therefore, their presence or not can 7 only have a marginal impact on the overwhelming remaining 8 applicants and students. 9 People show that Mr. Larntz' analysis of this entire 10 issue is, in fact, fundamentally flawed. 11 This trial is limited to the three issues that the 12 Court has set forth. But it's really important that 13 these issues be viewed and appreciated in the larger 14 context in which they arise. To fully understand -- to 15 take the Court's first question, the extent to which race 16 is a factor in the admissions process, it's crucial to 17 know why we use race at all. In fact, the plaintiff's one 18 witness, Gail Heriot, will say that. We'll introduce 19 portions of her deposition testimony in which she stated 20 that an admissions policy like the Harvard policy that's 21 attached to the Bakke opinion, or like the policy right 22 here before the Court, the extent to which race is considered 23 in the admissions process is in large part a function of 24 what you mean by a critical mass. That's why Mr. Syverud's 25 testimony is going to be important. That's 44 1 why a lot of witnesses are going to talk about what critical 2 mass is. 3 The educational benefits only come about if there is 4 critical mass. And we take race into account only to that 5 extent. 6 Now, there's no mystery or subterfuge here. We set 7 forth a comprehensive written admissions policy in 1992, in a 8 document drafted by a faculty committee that was established 9 by the dean and adopted by the full faculty of the law school 10 as the policy of the law school. 11 As I said in talking about Mr. Stillwagon, the 12 stipulated facts are that the director admissions is charged 13 with implementing that policy. The policy I think is Exhibit 14 4. You've seen it? 15 THE COURT: I've seen it. Is it Trial Exhibit 4. 16 MR. PAYTON: I believe we tried to keep the same 17 numbers. 18 THE COURT: I've seen it many, many times. 19 MR. PAYTON: This is it. And we're going to hear 20 from a number of witnesses about this policy. We're going 21 to hear from Lee Bollinger, the dean, that in the fall of 22 1991, appointed the Faculty Admissions Committee and 23 charged them with looking into all of this. And the 24 Committee drafted the policy. And Dean Bollinger presided 25 over its adoption by the full faculty in April of 1992. And 45 1 Mr. Bollinger is currently president of the University of 2 Michigan. 3 We'll hear from Jeff Lehman who was a faculty member 4 of the Faculty Admissions Committee that drafted the policy in 5 1991-1992, and he's the current dean of the law school. We'll 6 hear from Dennis Shields, who is one of the individual 7 defendants in this case who was then newly recruited to be the 8 Director of Admissions in the summer of 1991, and whose 9 initial emergent into Michigan law school was serviced on this 10 committee with the faculty charged with coming up with a new 11 policy. He contributed to the policy; functioned with the 12 committee; met the faculty; and helped design the program that 13 he was then charged with implementing. We'll hear from 14 Richard Lempert who was the professor who chaired that 15 committee in 1991. 16 The policy is a comprehensive policy about all 17 admissions. It makes it clear that the law school desires a 18 class of excellent students that have varying backgrounds and 19 experiences; recognizes that students learn a great deal from 20 each other. 21 So the question is: How do you select the students 22 to achieve those things? The policy states that the most 23 general measure predicting academic success is a composite -- 24 and this is on page 3 of the policy -- is a composite - I'm 25 giving just a short little quote here, 46 1 "An applicant's LSAT score and undergraduate 2 gradepoint average." 3 It notes that these measures are far from perfect, 4 certainly not complete. And, in fact, it notes at the bottom 5 of page 3, that. 6 "At Michigan the index for three of the four most. 7 recently admitted classes, the grades and test 8 scores explain on average 27% of the variance in 9 the first-year graded performance." 10 That means that nearly three-fourths of the 11 difference in those grades, cannot be explained by the 12 grades or the test scores. But, you know, the general 13 matter, higher is better. But the policy makes it quite clear 14 and explicit that -- and this is on the next page, page 4, 15 quote, 16 "Even the highest possible score ought not 17 guarantee admission." 18 And it goes on, the next page, quote, 19 "A low score ought not automatically deny a 20 candidate admission." 21 We don't admit LSAT scores. And we don't admit 22 GPA's. We admit whole students, whole persons. And there is 23 a whole lot of other information and practices that are 24 important in making a decision and judgment upon any 25 applicant: Recommendation, essays, curriculum, undergraduate 47 1 institutions, trend in grades, experience, et cetera. As the 2 policy says, considerable discretion is exercised in the 3 admissions process, and it ought to be. 4 Here's the point: Once the director of admissions 5 concludes that an applicant would succeed academically at 6 the law school and is, therefore, qualified, every such 7 applicant has a chance of being admitted. At that point 8 it is up to the applicant to make the case that this 9 discretion that the policy sanctioned should be exercised in 10 his or her favor. 11 This evaluation is the essential point of the 12 file-by-file review that the Admissions Office follows 13 regularly and without exception. 14 Now, everything I've just said about the admissions 15 process and the admission policy applies to all applicants, 16 minority, non-minority, everybody. I have described the 17 general policy. 18 The policy often notes that there are two 19 principal reasons why applicants may qualify for 20 admission despite having scored not at the very top of the 21 range. First, there are applicants as the policy said for 22 whom we have good reason to be skeptical of their scores. 23 The policy gives an example, Student X -- the policy refers. 24 To the student as Student X. That's a student that had good 25 grades but not nearly as good LSAT. And on closer review 48 1 of the record, it turned out that that same student had 2 very, very good grades in college, but the same not so good 3 LSAT scores, had out performed the test. And that's one of 4 the reasons you allow exceptions. You can take that into 5 account. 6 This first category, again, applies to all 7 students. And I will note that the example of Student X 8 is. In fact, a real student who was just summed up in there 9 and made anonymous, a real student, and it was a white 10 student. But it could have been any student who benefited 11 from that. 12 The second reason why an applicant may qualify for 13 admission if the score is not at the very top of the range is 14 that the policy says that -- it's nine of ten of the policy 15 is, 16 "This may help achieve that diversity that has 17 The potential to enrich everyone's education and 18 Thus make a law school class stronger than the sum 19 of its parts. In particular we seek to admit 20 students with distinctive perspectives and 21 experiences." 22 Now, the policy makes clear and the witnesses will 23 explain that this is diversity in the broadest sense of the 24 word, students with distinctive experiences and perspectives 25 as well as students that make special contributions to our 49 1 profession and our society. 2 Again, the policy gives examples. A student 3 originally from Bangladesh who had absolutely outstanding 4 recommendations, and very impressive experiences, but only 5 moderate achievement. A single mother who had very impressive 6 personal experiences, but who had very good academic 7 achievement but modest scores. 8 The policy also lists other possible achievements 9 that could be noted, taken into account by future admissions 10 committees, future directors of admissions. Ph.D. in physics. 11 It mentioned an Olympic Gold Medal, a Vietnamese boat person. 12 It wasn't suppose to be a rigid fixed category. Simply life 13 experiences, perspectives that could bring some real 14 contribution to the diversity and the livelihood and vitality 15 of the law school class. 16 That's the question that gets asked all the time, 17 will they make the law school a more lively and vibrant place 18 in which to study law for all applicants including the -- the 19 policy makes it absolutely clear that they must demonstrate 20 sufficient academic strength to be able to thrive at the law 21 school. 22 And then on page 12, the policy references the law 23 school, " 24 "Commitment to racial and ethnic diversity 25 With special reference to the inclusion of students 50 1 from groups that have historically been 2 discriminated against including African- 3 Americans, Hispanics, and Native Americans, who 4 without this commitment might not be represented 5 in our student body in meaningful numbers. These 6 students are particularly likely to have 7 experiences and perspectives of special 8 importance to our mission." 9 This commitment, the witnesses will explain is part 10 and parcel of the law school's boarder interest in creating a 11 lively and diverse student body "by enrolling" - -this is 12 where it references critical mass, 13 "By enrolling a critical mass of minority 14 students we have ensured their ability to make 15 unique contributions to the character of the law 16 school." 17 Racial and ethnic diversity is a part of the value 18 the law school places on general diversity. 19 The policy was drafted to make these points clear and 20 very unambiguous. I should note and I think the Court noted 21 at the beginning that the Court has under submission the 22 evidence that we presented in connection with our motion for 23 summary judgment regarding the significance of the educational 24 benefits that come from having a racially diverse student 25 body. And Mr. Purdy this morning said that no one has taken 51 1 issue with the fact that there are educational benefits that 2 come from having a racially and ethnically diverse student 3 body. That it benefits the education of all students, 4 minority, non-minority. 5 And as an educational matter this is especially 6 important because of the fact that -- and unfortunately 7 we continue to be plagued by a segregated society. And I 8 would also add it has special significance for the legal 9 profession. 10 That's the admissions policy, your Honor. You'll 11 hear the testimony from the drafters, the two deans under 12 which it has operated and the two director of admissions that 13 have operated it. So given that context what is the extent 14 to which race is a factor in the law school's admissions 15 decision? The answer can't be quantified. It's one race. 16 It's one of many factors that are considered. It's simply 17 a part of the effort to have a diverse student body. And 18 it's taken into account to achieve that necessary critical 19 Mass. 20 I don't think there's going to be an argument that 21 you have to have a critical mass. The extent to which it is a 22 factor has to do with the minority applicants. Each file, 23 each file is individually read. The extent to which race is 24 taken into account will effect -- may effect a decision, but 25 it will effect in ways that vary from file-to-file, from 52 1 applicant-to-applicant because you read each file, 2 cover-to-cover. Race is not given, however, so much weight 3 that it prevents each applicant regardless of race from 4 competing with all other applicants to gain admissions to a 5 law school. 6 To the contrary. As to the admissions data that I 7 referred to earlier, the 1997 data shows the law school 8 rejects many minority applicants, two thirds of the 9 African-Americans that year. And this is not an isolated 10 year. That's a pattern across all the years. 11 Again, in 1997, it rejected a larger percentage of 12 the African-American applicants and the White applicants. 13 No one, no one could fairly examine that data and conclude that 14 race was an excessively weighed factor much less a trump card. 15 It's certainly not a super factor. It certainly does not have 16 the form of significance. But the question becomes: Isn't 17 there some way to quantify this use of race? 18 As Mr. Kolbo has indicated his expert, Kinley Larntz, 19 has purported to do. Actually there isn't. Mr. Larntz' 20 analysis is flawed. And our expert, Professor Raudenbush, 21 will show that. Moreover, not only his is method flawed, the 22 way he has implemented his own method is flawed. And thus he 23 has misleading, and I'll say fantastic, what he's going to 24 call odd ratios. 25 There is another point: The plaintiff's effort to 53 1 reduce our admissions process, the entire process to two 2 numbers, LSAT and grades, plus race is fundamentally at odds 3 with how we make any admissions decision. The plaintiff has 4 completely ignored how the decisions are actually made and has 5 substituted an artificially three-factor analysis: grades, 6 LSAT, race. And as long as misleading that this is, I just 7 want to take a look at it on its own terms which I think are 8 incorrect, but on its own terms. 9 Now, we produced in discovery the database that Mr. 10 Kolbo talked about that has a lot of data, but it's limited 11 data, but it has a lot of data that describes students, where 12 they're from, where they went to college, what they LSAT score 13 was, what their grades were, et cetera. And that's the data 14 that Mr. Larntz, plaintiff's expert used to come up with what 15 he's going to present to the Court. 16 We produced a chart that graphically illustrates that 17 same data. A number of witnesses will testify about the 18 charts we produced. I just want to show them to you. It 19 began in 1997. Here's what I want to show. It is a chart 20 that shows the admitted majority students. 21 THE COURT: What exhibit number is it, just for the 22 record, do you know? 23 MR. PAYTON: It's coming. 24 THE COURT: That's okay. 25 MR. PAYTON: I'm going to walk up and talk loud 54 1 enough for everybody. Can you see that? Can you look at your 2 Exhibit 180? 3 THE COURT: Sure. It's here. I'd like to have it. 4 It will take me a minute to get it in the right order. 5 MR. PAYTON: It's Volume 13, and it's Exhibit 180. 6 THE COURT: You may proceed. 7 MR. PAYTON: And what we have is we have a graph, a 8 chart. On the left side it shows the range of LSAT scores, 9 twenty, all the way up to one eighty. And on the bottom it 10 shows the ranges of GPA's. It's just a graph. And this plots 11 every single one of the majority admitted students for 1997. 12 And they're bunched in the upper right-hand corner just as Mr. 13 Kolbo indicated the policy says we try to get people who are 14 bunched up there, okay? So that's every admitted majority 15 student, okay. 16 Now, I'd to put up the same chart for the admitted 17 under-represented minority students. 18 THE COURT: What number is that? 19 MR. PAYTON: One eighty-one. 20 THE COURT: Okay. 21 MR. PAYTON: And this has the exact same scale. And 22 it shows every single one of the admitted under-represented 23 minority students. Again, bunched in the upper right-hand 24 corner. And these are transparencies so I'm going to overlay 25 them, and then synchronize the scale so they're on the exact 55 1 same scale and you can see that now what we see is a glob of 2 all of the students. This is now all of the students. And 3 you can see the overlay. If you could pull it apart so that 4 the judge could see just what the overlay looks like. Put it 5 back up there. You will see that there is considerable 6 overlap between the admitted majority students and the 7 admitted under-represented minority students. 8 Now, we can do the same thing for the students who, 9 in fact, were rejected in 1997. So if we put up the majority 10 students who didn't get in. And, this is very single one on 11 the exact same chart. And we just put on top of that the 12 overlay of the rejected minority students. I'm going to put 13 it right on top. And, again, you see there's considerable 14 overlap in the rejected students. 15 Now, what we see from this is really quite dramatic, 16 that what you would have expected to see given the way the 17 plaintiffs have presented this evidence is two completely 18 different universes of applications, okay, and that the 19 enormous gap, the terrible gap that he referred to in the 20 summary judgment was a super factor, the enormous consequences 21 that he referred to this morning, you would expect to see 22 completely different universes of the plots, but you don't. 23 In fact, you see that they look like one of the same thing, 24 just two little parts. And you can see that clearly there is 25 some difference, but it's clearly a difference that is much, 56 1 much smaller than the rhetoric has indicated. 2 That's the actual data. We just plotted it, okay? 3 We didn't do anything else with it but plot it up there so 4 that it can be seen because the visual is really quite 5 dramatic. It also shows and I think this is also important 6 that every one of these students looks really strong on just 7 these two measures. They're all up there in the upper 8 right-hand corner. 9 Now, we don't deny that we use race. We don't deny 10 that we take race into account. We don't deny that it's a 11 factor that can make a difference. If it wouldn't make a 12 difference, it wouldn't be a real factor. But as these charts 13 reveal, we use race quite judicially. 14 Now, I now want to look at how the decisions are 15 actually made because this is about an artificial world. That 16 doesn't reflect how we make decisions. When I said we don't 17 admit LSAT scores, we don't admit LSAT scores. We don't admit 18 GPA's. We look at whole people. And this will become really 19 clear in the testimony of Ms. Munzel, Mr. Shields, the two 20 directors of admissions. There's simply no mechanical process 21 of selecting students for admissions. Every file is read. 22 Every relevant factor is considered, and individual judgments 23 are made. 24 You're going to hear testimony about how the 25 admissions process operates. I'm going to describe it 57 1 briefly. 2 An application comes in. The application is put into 3 a file folder. Some information, most of the information 4 that's in this database, name, address, test scores, grades, 5 whether the applicant's a Michigan resident, race, gender, 6 undergraduate institution, that kind of information is loaded 7 into a database. When letters of recommendation and the 8 transcripts are received the file is ready, is complete, it's 9 ready to be reviewed. 10 Then usually the director of admissions, but every 11 now and then someone, but usually the director admissions then 12 reads the file folder. They start by looking at the objective 13 factors, some of the factors, the grades and the test scores. 14 The first impression of an applicant. And we're going to see 15 an actual -- and we're going to redact the name of the actual 16 student, but we're going to go through an actual file folder 17 so you can see exactly how this works and appreciate how the 18 process works, that there's a report in there that's prepared 19 by a centralized organization, Law Services, and it assembles 20 various information. And the report will give you a sense not 21 only of what the grades and the test scores are, but will put 22 it in the context of every other student from that student's 23 college who has also applied to law school. So you can see 24 just how that student did in comparison with all the other 25 students that are coming from a college and are trying to get 58 1 into law school. 2 Let me just also mention something to just sort of 3 set it aside because there's been something that's misleading 4 here. There has been some mention, at times a lot mention of 5 what's called the law school index score. And that is a score 6 that reflects the relationship between the LSAT, undergraduate 7 grades, and first year law school grades. Now, there is such 8 an index formula and there is an index score. However, we 9 don't use it to make decisions at all about admitting or not 10 admitting a student. We don't use it at all for that purpose. 11 It's not even in any student's file. It's not there. When we 12 go through a file you'll see there's no place where there is 13 an index score. 14 The index score is instead used simply to figure out 15 the order in which you want to read files. It's just a way of 16 sorting files you want to read. But let's go back to the 17 file. 18 For every single applicant, they go in and read the 19 rest of the file, no matter how high or low the LSAT scores or 20 the grades are. They turn to the undergraduate transcript. 21 They figure out what they can from the applicant, from all of 22 that. Where did the applicant go to college? What kind of 23 classes did the applicant take? Was thee a trend in the 24 grades? Was the transcript padded with easy courses? Did the 25 applicant compare himself or herself for the study of law? 59 1 They turn to the applicant's essays. What makes this person 2 tick. What have they done. What does this person have to say 3 about why they're applying to law school. Is there anything in 4 their background or experiences that make them unusual or 5 interesting that leads you to think that they will make 6 special contributions to their fellow students and their law 7 school class? Do they have something interesting to say? Are 8 their essays well written? Can they describe something about 9 their activities, interests, or background which actually is 10 of note. And then they'll look at the letters of 11 recommendation. Do the applicant's college professors speak 12 of the applicant? Do their supervisors or their colleagues 13 work? Is this someone who would contribute to the class? Is 14 it likely that this person would contribute to the education 15 of their fellow students? Is there something in their 16 background that the recommender can tell us. 17 And, yes, one of the things that they also look at 18 and consider is the applicant's race. Will they contribute to 19 a racial or ethnic diversity at the law school? And part of 20 this is about the concept of critical mass, no doubt about 21 that. It's not as if, however, there's a particular number of 22 law students that is critical mass. But one of the purposes 23 of the admissions process is to make sure that there are more 24 than a token number of minority students because in order to 25 get the benefits of diversity, you can't create a sense of 60 1 isolation among the minority students as you do when you just 2 have token numbers. Otherwise, you will not get the benefits 3 that you're seeking. 4 It's not a matter of a concept you can put a specific 5 number on. But I think everyone understands what the concept 6 is about. 7 Quote -- this is from Bakke, 8 "When the committee on admissions reviews the 9 large middle group of applicants who are 10 admissible and deem capable of doing good work in 11 their courses, the race of an applicant may tip 12 the balance in his favor just as geographic origin 13 or life spent on a farm may tip the balance in 14 other student's favor." 15 That's Justice Powell in Bakke. And that's just what 16 our policy's contemplates and just what we do. 17 "So long as the university proceeds on 18 an individualized case-by-case basis, there 19 is no warrant for judicial interference in the 20 academic process." 21 That's Justice Powell in Bakke again. 22 As to the issue of whether the law school's use of 23 race constitutes a double standard, I think that question can 24 be very easily resolved. The elements of the earlier and 25 discarded special admissions program that Mr. Kolbo talked 61 1 about, a special admissions program, they simply don't exist 2 any more at all. The evidence will show conclusively that 3 there are no separate consideration of minority or 4 non-minority applicants. That there's no separate data base. 5 That there are no separate readers of certain files. That 6 there are no separate anything. There is one system. And all 7 of the applicants are considered by using the same policy. 8 In fact, other than the fact that the law school does 9 pay attention, some attention to number, by trying to enroll a 10 critical mass of minority students, other than that there's 11 absolutely no difference in the manner that race is considered 12 and the manner that say, good essays, or colorful letters of 13 recommendation are considered. 14 Does the law school have a double standard for 15 students with good letters of recommendation? Of course not. 16 Does it have one standard for students who have leadership 17 potential and a different and lower standard for students who 18 do not? Of course not. 19 What the evidence will show is that these are factors 20 that are taken into account in trying to understand the whole 21 person who is trying to gain admission to the law school. We 22 consider whether the applicant has strong letters of 23 recommendation. We consider the applicant's leadership 24 abilities. We consider whatever is presented that gives us 25 insight into the applicant's ability to succeed and to 62 1 contribute to the law school. And we consider race as part of 2 that process. 3 The term "double standard" is just a label that's put 4 on by those who think we shouldn't use race as a factor at 5 all. 6 Now, yesterday, I think we all reflected on the life 7 and inspiration of the Reverend Martin Luther King, Jr. It 8 was a time to reflect on progress as well as how much there 9 yet remains to be done. It remains to be done to bring us 10 together as a society and to achieve understanding throughout 11 society. 12 "It is not too much to say" noted Justice Powell in 13 Bakke "that the nation's future depends on leaders trained 14 through wide exposure, to the ideas of students as diverse as 15 this nation of many peoples." 16 Justice Powell then noted that the benefits of a 17 racially and ethnically diverse student body is a matter as he 18 said, "even at the graduate level" where "our tradition and 19 experience lends support to the view that the contribution of 20 diversity is substantial." And he concluded by quoting these 21 two sentences by Swett versus Painter, the 1949 case in which 22 the Supreme Court found "segregated and legal education 23 unconstitutional, 24 "The law school, the proving ground for legal 25 learning and practice cannot not be effective in 63 1 isolation from the individuals and institutions 2 with which the law interacts. Few students and 3 anyone who has practiced law would choose to study 4 in an academic vacuum removed from the interplay of 5 ideas and the exchange of views with which the law 6 is concerned." 7 Your Honor, the relevant evidence that will be 8 presented at this trial will establish that the University of 9 Michigan law school uses race in an appropriate way to achieve 10 a diverse student body with a critical mass of minority 11 students. It will show that the process reviews each 12 application individually, one by one, using the same 13 consideration and that that is exactly what Justice Powell 14 commended in Bakke. 15 THE COURT: Thank you. 16 Ms. Massie? 17 MS. MASSIE: Judge, can we take a short break, 18 please? 19 THE COURT: Sure. Why don't we take our morning 20 break right now and we'll be all set. We'll take about 21 fifteen minutes. 22 (Court recessed, 10:20 a.m.) -- -- -- 23 24 25 64 1 (Whereupon a recess is had.) 2 THE COURT: Okay. You may be seated. Thank you. 3 Okay. I can't say that we will always be as prompt as we are 4 today, but we took everything off our docket today so 5 that we would be able to accommodate everybody here. 6 Sometimes when we say fifteen minutes, what the Court calls 7 a fifteen-minute recess, I get in the back and there's a 8 million orders to sign and a million phone calls. My kids 9 were calling, something's wrong or car doesn't start or 10 something like that. So usually fifteen-minute recess 11 takes a little bit longer, but today we're going to try to 12 be as punctual as we can, but I don't want you to believe 13 that that's going to happen all the time, because it just 14 doesn't. And next week, one of these weeks coming up, I 15 don't think it's next week, I may be presiding, which I 16 will need to handle miscellaneous matters, too, so with 17 that said, the Intervener's interested in doing an opening 18 statement. 19 MS. MASSIE: Thank you, Judge, we are. Judge 20 Friedman, this will be a trial about the most fundamental 21 concerns this nation has always faced and faces now. Our 22 history has taken shape in a field defined by two magnetic 23 poles; on one hand the pole is segregation and the 24 maintenance of inequality, and on the other hand, are truer 25 and better impulse towards racial equality and integration. 65 1 That tension has defined many sectors of our common light, 2 but no such sector has been as much defined by that 3 tension, and has been as in turn as defining of that 4 tension as education. This case began as an attack on the 5 measure of progress that we've achieved. But it gives us 6 the opportunity, ironically, to achieve far more. The 7 Plaintiff's proofs are, in fact, the Intervener's proofs. 8 Only one of our witnesses, a statistician named 9 Kinley Larntz about whom you've heard a little bit will 10 have anything to say that bears on her basic claim. That 11 claim is that aggregate differences by race and test scores 12 and grades prove discrimination against white law school 13 applicants. 14 In true, as our witnesses for the intervention 15 will show, that prove exactly the opposite. They prove 16 that continuing and persuasive existence of discrimination 17 and bias against Black and other minority applicants, not 18 discrimination against white law school applicants. 19 Affirmative action will convince you is the 20 only way to offset that bias against minority applicants. 21 In fact, it is only possible to read Kinley Larntz work as 22 evidence of discrimination against white people by sealing 23 it up in a factual vacuum chamber and therefore by 24 implicitly accepting the idea that test scores and grades 25 are fair and race neutral measures of merit, which is to 66 1 say, in turn, the view that Black, Latino and Native 2 American law students are inherently and biologically 3 inferior. 4 The factual erring of all three of the issues 5 that you have set for trial in this case will definitively 6 refute that racist and pernicious view. They'll provide a 7 context for understanding why the academic criteria are not 8 race neutral, and why at this moment in our common lives 9 together they could not be. They'll show that affirmative 10 action lessens the extent to which race is a factor in 11 admissions in real terms, and that affirmative action is 12 absolutely necessary as a first step toward fairness in the 13 application process. And they'll show that race is not 14 just a box that you check on an application form so that a 15 statistician can later make distinctions in his data about 16 it as the Plaintiff would have it, but a whole set of 17 contemporary and historical experiences in which inequality 18 and unfairness only ever run one way against black people 19 and other minorities in this society, not ever, not ever 20 yet in our history against white people. 21 So in the end while Kinley Larntz' work is, we 22 agree, marred by exaggeration and mythological problems, 23 its basic point that the criteria differences exist is 24 correct. That points the beginning, not the end of the 25 inquiry. We'll show why these differences exist, why 67 1 they're a function of racism; and thus, why the 2 consideration of race and admissions is an absolute 3 necessity. 4 The discrimination against minorities and 5 unearned advantages for white applicants which structure 6 educational opportunity in the broadest sense, including 7 the opportunity to perform at the highest level and which 8 are tempered by affirmative action have several sources. 9 Like we need to begin with broad questions of social and 10 educational inequality and with the connections between 11 race and class, but race is a force in American life, 12 independent of class, and particularly so in education. 13 All of our witnesses will help show how these 14 dynamics are operationalized, are put into effect in higher 15 education admissions, and how they provide a necessary 16 context for evaluating the impact of any admissions 17 program, before you even get to its intent. What's its 18 impact, what are its effects? 19 Gary Orfeld is one of the foremost experts. In 20 fact, it's hard to think of anyone who could really compete 21 with him for this title on school integration in this 22 nation. And he's occupied that position for decades. He's 23 from Chicago. He now teaches at the Harvard School of 24 Education and he's testified in countless cases involving 25 integration and education at all levels, often as a 68 1 court-appointed witness. 2 Gary Orfeld will testify about how racial and 3 equality and segregation are growing in our country right 4 now, not -- excuse me, not diminishing, but growing. He'll 5 talk about the social costs that are associated with that. 6 Together with another of our experts, Eugene 7 Garcia, who's the Dean of the Education School at the 8 University of California at Berkeley. Gary Orfeld will 9 show that affirmative action in higher ed is a necessary 10 part of increasing equality throughout the educational 11 system, including in K through twelve; that is to say, 12 diminishing the current, extraordinarily cruel and 13 destructive role of race and races in education, including 14 all the way up on through professional school and through 15 the application process that leads to it. 16 Orfeld and Garcia will show that only 17 affirmative action can help us move forward. They -- only 18 affirmative action can help us move away from a system in 19 which opportunities are sharply constrained and defined by 20 race and racism. Affirmative action, in other words, 21 diminishes the role of race in education and in, excuse me, 22 in admissions. There's no substitute for it. 23 K through twelve improvements depend upon it 24 absolutely. And we can see how necessary it is for 25 achieving a measure of integration in higher ed by looking 69 1 at the demographic figures from the University of Michigan 2 Law School before this school adopted affirmative action. 3 It was a segregated school. It wasn't 4 segregated by law but it was segregated, in fact. And in 5 law schools in California and Texas where affirmative 6 action has been eliminated, the schools have returned to 7 segregation. 8 Orfeld and Garcia will be testifying principally, 9 though not exclusively, about race and education with 10 respect to Black and Latino young people. We also have a 11 witness on our may-call list, Faith Smith, who's an expert 12 on Native American educational affairs and she'll be 13 testifying, if time permits, about the dire consequences of 14 eliminating affirmative action on the Native American 15 community and on Native American young people in terms of 16 their ability to get any kind of a higher education. And 17 that's because of the continuing dramatic effect of race 18 and racism, of social inequality by Native Americans in 19 this country. 20 She'll convince you, Judge Friedman, that when the 21 University of Michigan Law School takes the race of the 22 rare Native American applicants who's overcome severe 23 burdens, to the extent that she or he is even in a position 24 of being able to consider applying to a law school, much 25 less a law school such as the University of Michigan. The 70 1 law school by taking her race into account is mitigating, 2 is mitigating race discrimination, not adding to it. 3 John Hope Franklin will provide historical context 4 for the program in place at the law school. He'll testify 5 that steps toward integrating education have always meant 6 the reduction of the role of race as a factor in the 7 starkly unequal distribution of educational resources. 8 John Hope Franklin has lived through much of the 9 history that he will describe. And he's one of the world's 10 most honored historians as well as being the Chair of the 11 President's Initiative on Race. 12 There are two very highly regarded scholars on our 13 may-call list, both of whom were originally listed by the 14 university in this case? Thomas Sugrue, who's a 15 sociologist and historian. And Eric Foner, a historian, if 16 called, make clear respectively the contemporary and 17 historical significance of race in American life, its 18 singulari