BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 1 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF MICHIGAN 3 SOUTHERN DIVISION 4 5 BARBARA GRUTTER, 6 For herself and all others 7 Similarly situated -- 8 Plaintiff. 9 -v- Case Number: 97-CV-75928. 10 LEE BOLLINGER, JEFFREY LEHMAN, 11 DENNIS SHIELDS, and REGENTS OF 12 THE UNIVERSITY OF MICHIGAN, 13 Defendants, 14 And 15 KIMBERLY JAMES, et al.. 16 Intervening Defendants. 17 ---------------------------------/ VOLUME 3 18 BENCH TRIAL 19 BEFORE THE HONORABLE BERNARD A. FRIEDMAN 20 United States District Judge 21 238 U.S. Courthouse & Federal Building 22 231 Lafayette Boulevard West 23 Detroit, Michigan. 24 THURSDAY, JANUARY 18TH, 2001 25 BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 2 1 APPEARANCES: 2 3 FOR PLAINTIFF: Kirk O. Kolbo, Esq. 4 R. Lawrence Purdy, Esq. 5 6 FOR DEFENDANTS: John Payton, Esq. 7 Craig Goldblatt, Esq. 8 On behalf of Defendants Bollinger; 9 . Et. al. 10 11 George B. Washington, Esq. 12 Miranda K. S. Massie, Esq. 13 On behalf of Intervening Defendants. 14 15 COURT REPORTER: Joan L. Morgan, CSR. 16 Official Court Reporter. 17 18 19 20 21 22 23 24 25 BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 3 1 I N D E X 2 3 WITNESS: PAGE: 4 5 KINLEY LARNTZ 6 Cross-Examination by Ms. Massie 4 7 8 MOTION FOR PARTIAL JUDGMENT 9 By Mr. Payton 41 10 11 LEE BOLLINGER 12 Direct Examination by Mr. Payton 51 13 Cross-Examination by Mr. Kolbo 69 14 15 RICHARD LEMPERT 16 Direct Examination by Mr. Goldbatt 88 17 Cross-Examination by Mr. Purdy 159 18 19 20 21 E X H I B I T S 22 23 MARKED RECEIVED. 24 Trial Exhibit Number 34 142 25 Trial Exhibit 32 159 BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 4 1 Detroit, Michigan 2 Thursday, January 18th, 2001 3 (At or about 8:30 a.m.) 4 -- --- -- 5 THE COURT: Good morning. 6 MR. PAYTON: Good morning, your Honor. 7 MR. KOLBO: Good morning. 8 MS. MASSIE: Good morning. 9 THE COURT: Okay. 10 You may Cross-Examine the witness. 11 K I N L E Y L A R N T Z , P h. D. , 12 Having been previously called as a witness herein, and after 13 having been first duly sworn to tell the truth, the whole 14 truth and nothing but the truth was examined and testified as 15 follows: 16 CROSS-EXAMINATION 17 BY MS. MASSIE: 18 Q Good morning, Dr. Larntz. 19 A Good morning. 20 Q We had a chance to meet yesterday. My name is Miranda 21 Massie, and I represent the student Intervenors in this as I 22 think you already know. 23 A I understand. 24 Q I'm going to try hard not to reproduce too much of what 25 happened yesterday, but I'm sure there will be a little of BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 5 1 overlap and I'll ask you to bear with me. I'm going to try to 2 keep it to a minimum. 3 A Thank you. 4 Q As I understand it, your premise in conducting your 5 analysis was to look at the role of race in admissions 6 controlling for credentials. 7 A Yes. 8 Q Is that true? 9 A Yes, with specific graduals of LSAT and GPA, yes. 10 Q In all of your analyzes the box plots, the grafts, the 11 different odds ratios were based on undergrad grade and LSAT; 12 is that right? 13 A I mean those were the basic data we controlled for, and 14 certainly the box plot and the displays were of those variables 15 specifically. Some of the analysis involves other variables. 16 Those are always there. 17 Q Michigan residency was one of the other variables -- 18 A Michigan residency, gender, fee waiver. 19 Q But the basic analysis involved the undergrad grades and 20 LSAT. 21 A That's correct. 22 Q Your analysis showed that LSAT difference by racial 23 groups were greater than GPA differences; is that right? 24 A I think if you specifically look at the box plot there's 25 more separation in the box plot for the LSAT than for GPA, BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 6 1 that's true. 2 Q And when you say there's more separation in the box plot 3 is it not fair to say in lay terms that there's a bigger group 4 difference? Is that not -- 5 A I was trying to say that's exactly -- there is. There's 6 a bigger group difference. 7 Q I'd like to look if I could mobilize George at Slide 28. 8 What I'm going to ask you to do, Dr. Larntz, is to compare 9 Slide 27 and Slide 28 from your presentation so we can see how 10 the distribution of LSAT scores and grades by race is 11 different. 12 THE COURT: Twenty-seven? 13 BY MS. MASSIE: 14 Q Are you able to read that, sir? Did I give -- 15 A I can't read it, no. 16 THE COURT: I think there's a -- 17 BY MS. MASSIE: 18 Q Do you have Slide 27? 19 A Slide 27, I have it, yes. 20 Q Okay. As you look at the two columns that have been 21 highlighted it's true that there are more applicants who are 22 black and more applicants who are white toward the top of those 23 GPA scales; is that correct? 24 A Yes, that's correct. 25 Q If you could take a quick look at Slide 28. I apologize. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 7 1 I have to ask you to go back and forth a couple of times. 2 There's a different pattern of distribution there; isn't there, 3 in that the black students are more heavily concentrated in the 4 lower end of the LSAT score when you keep their grades 5 constant. 6 A Yes, that appears to be the case. 7 Q So in this range of GPA which was calculated by the law 8 school Admissions counsel at 3.25 to 3.49 the white students 9 are much heavily concentrated in the highest ranges of LSAT 10 score, and the black students are much more concentrated in the 11 lower ranges of LSAT score. 12 A That's certainly true. 13 Q In looking back now if you'll indulge me at slide 27, 14 again, that's not true when you control for LSAT here, I 15 think we're looking at 161 to 163 on the LSAT the distribution 16 of grades is roughly similar. I'm not asking you to make 17 detailed statistical judgment here, but it's 18 roughly similar. 19 A Correct. I agree, there's certainly much less separation 20 in the grade distribution given the specific LSAT score, that's 21 true. 22 Q And, in fact, regardless of the specific LSAT score and 23 the aggregate whether you judge that by the median or the 24 distribution the grades are a lot closer. There's still 25 differences, but they're much closer than the LSAT scores; BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 8 1 right? 2 A Well, they're closer -- I mean, much closer is a relative 3 term. I'm not sure how to describe it. But they're certainly 4 closer. 5 Q Fair enough. 6 By the way, Dr. Larntz, the Asian Pacific Americans, 7 the Asian American applicants had lower median LSAT scores and 8 undergraduate grades; isn't that true? 9 A The applicants or the accepted applicants? 10 Q The applicants. 11 A The applicants, I'd have to go back and look at the 12 specific -- lower than -- what group? 13 Q Than the white applicants. 14 A Than white applicants? You're talking about the LSAT 15 score? 16 Q I'm talking about both undergraduate grade and LSAT 17 scores. 18 A I think there was -- my recollection, I can go back and 19 look at the table is they were slightly lower, yes. 20 Q And you mentioned yesterday you looked at some of the 21 application files. 22 A A few, yes. 23 Q Who were the students, not by name which I understand you 24 didn't know, but were they rejected white students or were they 25 accepted minority students? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 9 1 A I think I looked at -- you know, we're not talking about 2 hundreds, we're talking about a small handful of both. I mean, 3 I looked -- I certainly -- and it's been some time, I haven't 4 looked at them very recently. But I did look at some 5 application files of rejected. And I don't remember if they 6 were white or Asian students, applicates, and accepted minority 7 applicants, yes. 8 Q And why did you look at those? 9 A Why did I look at those? 10 Q Yes. 11 A To get an idea of what the files looked like. I think it 12 was useful to look at what the raw data are that the law school 13 summarized -- where it came from. 14 Q But looking at the files didn't change your statistical 15 analysis at all. 16 A Well, most of my analysis was done by the time those 17 files were available to look at. 18 So I didn't find information in those files that I 19 could use quantitatively to change my -- that would change my 20 analysis, that's correct. 21 Q Did you find information that raised any questions for 22 you about your analysis? 23 A Raised questions? 24 Q Yes. 25 A No. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 10 1 Q And that's because your analysis is focused on the 2 question of the role of race, controlling for numerical 3 credentials; right? 4 A That's exactly what we're doing, yes. 5 Q And that's why looking at the files didn't change your 6 view? 7 A I mean, if there had been quantitative information that I 8 could found in the files, a variable that I would then have in 9 the data base then I could have used that. I didn't find such 10 a quantitative information that would be available to me across 11 all applicants. 12 Q Okay. The group differences in both grades and LSAT 13 scores that were part of your findings, are greater among the 14 applicants as a whole than they are among the accepted 15 applicants; isn't that true? 16 A I believe that's true, yes. 17 Q So in other words, the admissions process at the law 18 school reduces the size of the gap in both LSAT scores and 19 grades by race. 20 A That's true, yes. 21 Q And results if you look at the selected admitted 22 under-represented minority students, the Black, Latinos, the 23 Asian American students, it results in the selection of a group 24 of minority students who have relatively higher grades, higher 25 grades relative to white students. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 11 1 A I don't understand the comparison you're asking me to 2 do. 3 Q The pool of people who -- the pool that consists of all 4 of those who apply -- 5 A Yes. 6 Q -- is reduced through the application process -- 7 A I understand that. 8 Q I'm not -- definitely suggesting that you don't. I'm not 9 sure that I'm being clear. And a bunch of people are 10 rejected. 11 A Quite a few. 12 Q And what you end up with in -- if you're comparing the 13 group by race in terms of numerical credentials is less of a 14 spread, less of a gap. 15 A There's still a gap, but the gap isn't as large as the 16 applicants who presented themselves to the law school for 17 admission, that's true. The accepted applicants have a 18 somewhat smaller gap in numerical terms compared to the group 19 of applicants presented as a whole. Okay, but I think I've 20 answered, and that's true. 21 Q So the admission process results in a selection of 22 minority students who relatively speaking have higher numerical 23 credentials than the applicant pool. 24 A I guess I've never made the comparison to the entire -- 25 if I understand what you're asking me to do, are the minority BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 12 1 students who are accepted higher than the entire applicant pool 2 as a whole. 3 Q I'm sorry, then that's definitely not what I'm saying. 4 A Okay. 5 Q The gap is reduced. 6 A It would -- well, I guess I should let you ask the 7 question. 8 Q The gap is reduced. 9 A Yes. 10 Q You haven't previously testified as an expert or worked 11 as a consultant as I understand it on admissions in higher 12 ed. 13 A That's correct. 14 Q Or on any question involving race and higher 15 education. 16 A Race and higher education? 17 Q Yes. 18 A I'm trying to recall the issues. I have testified in 19 cases involving higher education hiring. And I -- no, I don't 20 believe then -- I'm sorry, I'm just trying to recall. 21 I believe that particular case involved gender 22 equity and did not involve -- it did not involve race issue. 23 So, I have not. Sorry. 24 Q And you don't have any expertise on standardized testing 25 issues. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 13 1 A Expertise on standardized testing issues in what 2 sense? 3 Q You haven't made a study of standardized testing. 4 A I've never made a study myself of standardized testing, 5 that's true. 6 Q Do you consider yourself to have any expertise in the 7 area of bias, racial bias in standardized testing? 8 A That's not an area I've studied. 9 Q Do you consider yourself to have any expertise in the 10 area of educational sociology? 11 A Educational sociology -- 12 Q Well -- 13 A I assume -- well, let me just say it since I probably 14 don't understand what the term means, I probably don't have any 15 expertise. 16 Q Do you have any expertise in your view on the role of 17 hostile environment or racism on academic performance? 18 A I have certainly read materials on that, but that's not 19 my -- I've read it as a lay person, not as -- have no level of 20 expertise in that. 21 Q So you're not an expert on that? 22 A I'm not an expert on that, that's true. 23 Q And in analyzing the data for this case, you didn't rely 24 on anybody else's expertise in those areas; true? 25 A I'll just say, yes, since I didn't rely on anybody BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 14 1 else. 2 Q And you weren't asked to. 3 A Look at -- 4 Q The attorneys didn't ask you to rely on anybody else's 5 expertise or to carry out any studies of your own on testing or 6 grades and the environmental impact? 7 A No. 8 Q I know you know where I'm going, but -- 9 A I'm not -- 10 Q People talk over each other all the time. 11 A I'm sorry. 12 Q It's hard when you look at the transcript later. 13 The role of the environment -- the 14 environmental impact impacted by racism on grades or tests or 15 anything like that, you weren't asked to look at any of that; 16 is that true? 17 A That's true. 18 Q I'm going to ask you this way of conceptualizing the 19 cause of the odds ratios, the magnitude of the odds ratios 20 that you calculated seems true to you, and that is this: 21 That there are essentially three necessary components to the 22 magnitude of those ratios. And tell me if this is wrong after 23 I list them. First, there's the important of the LSAT and the 24 GPA in determining admissions decisions. Second, there's the 25 uneven distribution by a race of applicants within the grid BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 15 1 that has LSAT scores on one axis and GPA on the other. And 2 then, third, there's allowance that you talked about 3 yesterday which is to say the decision to admit some 4 relatively substantial number of black and other minority 5 students. So in other words the three components: 6 First, importance of LSAT and GPA. Second, uneven 7 distribution on the numerical within the grid that 8 summarizes the numerical criteria. And, third, to look 9 at it either way it seems to me the allowance, to use your 10 term that the University makes, which is to say the 11 decision to admit more than token number of minority 12 students. Are those the three necessary and sufficient 13 components that gives you the odds ratios that you ended up 14 calculating? 15 A Before I give my answer, I'm saying "necessary" and 16 "sufficient" are mathematic terms, very precise ones. 17 You have to be very careful. But I -- let me say that the 18 three components -- you correct me if I've got them wrong, 19 okay -- are -- Number one is unequal distribution -- the 20 fact that there's -- admission is based on the LSAT and 21 GPA? 22 Q Right. 23 A Okay. Number two, is the distribution -- distributional 24 differences of those quantities. 25 Q Correct. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 16 1 A And number three is the decisions made, the allowance 2 made for those individual cells. 3 My analysis doesn't depend on -- doesn't actually 4 depend on the -- if we want to be in a real sense -- it 5 doesn't depend on LSAT and GPA being a big factor. 6 It accounts for whatever it is. It could be a 7 big factor. It could be a small factor. So that doesn't 8 matter except that it is obviously a big factor. So that 9 we take out that effect whatever that is so the analysis 10 takes out that effect because we're looking at each cell 11 separately. 12 So it could be not as big effect or small effect, 13 and we can still do the same analysis. 14 Q I understand. Can I stop you because I think I haven't 15 been clear. 16 A Okay. 17 Q I'm not asking you whether you could do the same 18 analysis. I'm asking you whether the results you got are a 19 consequence of these three -- 20 A And I'm trying to answer that question. 21 Q I'm sorry. Please proceed. 22 A And so thus -- so, thus, the results I get don't depend 23 on that characteristic. 24 THE COURT: That characteristic being the GPA, 25 LSAT? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 17 1 THE WITNESS: It depends on the fact that we're 2 looking at individual cells. But it doesn't depend on the 3 fact that there's a particular pattern of acceptance in GPA 4 and LSAT which is what I understood was the premise. 5 A So it doesn't depend on that, per se. 6 And, again, because we're looking at the 7 individual cell, and we're comparing individual applicants 8 that have the same credentials, it doesn't depend on -- to 9 the second point, the distribution of those credentials, 10 we're looking specifically at what those credentials are in 11 a particular cell and how an individual in those particular 12 cells. So the analysis actually doesn't depend on the 13 distribution which I think is your second point of 14 credentials. 15 BY MS. MASSIE: 16 Q Yes. 17 A The analysis particularly depends on what happens to 18 individual applicants in the same category of LSAT and GPA. 19 And that's what -- I think the third item you said, the 20 allowance that's made. And that what it specifically 21 reports is the degree of allowance given in those 22 individual cells. And so that's what it specifically 23 depends on. 24 So it could be -- it would be if, in fact, there 25 were other distributions either -- in how the University took BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 18 1 account of those of values or how the applicants are rated it 2 wouldn't depend on that. It would depend on the specific, 3 what happened to those specific cells. 4 Q Okay. And you're talking by the cell-by-cell odds ratio 5 now. 6 A Well, I'm talking about the grids, what happens in the 7 grids. 8 Q But the overall odds ratio -- 9 A Is the combination of what happens in the individual 10 grid, cell-by-cell. 11 Q If the -- you would get different numbers if people were 12 distributed differently by race within that grid; true? Your 13 odds ratios would be different. All other things being equal, 14 your odds ratios would be different if people were distributed 15 -- let's say if it was distributed proportionately by race 16 within all the different squares in the grid, you would get an 17 odds ratio of one; true? 18 A There's two things going on here. What you just said 19 certainly is not true in the sense of distributing. 20 Q Why not? 21 A What I was trying -- what I want to explain is you've got 22 three or four things changing at once. So let me just change 23 one thing if I might. 24 Q All right. 25 A Okay. If, in fact, if, in fact, the distribution changed BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 19 1 of minority students in the cells in the sense that there were 2 more applicants, if there were more applicants in other cells 3 than we have, so the distribution changes. So they're in some 4 cells -- well, yesterday we had a cell where there were eight 5 minority applicants and four were admitted, okay? If we change 6 that to -- if we want to do that proportionately -- I think 7 this is what -- I would want to do it proportionately, you had 8 sixteen applicants and eight were admitted. It's exactly the 9 same proportions. 10 But we move the distribution around, that is, there 11 are more minority applicants in the various cells, okay, then 12 the odds ratios for each of those cells, the odds ratios for 13 each of those cells would remain identical to what they are 14 now. Identical. They wouldn't change whatsoever. 15 So -- if, in fact, the decisions were still made in 16 the same way, but there are more minority applicants in 17 certain cells, but the actual admitted and accepted ratios 18 stayed the same in a cell, then the odds ratios for those 19 cells stay exactly the same. 20 That's mathematics. You can calculate them. They 21 stay exactly the same. 22 Q Okay. My question was this: If you were to just take 23 the grid overall and distribute -- let's take black students 24 and white students for the time being. Black students and 25 white students in a proportionate way so that you wouldn't have BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 20 1 what we just looked at in Slide 27. So that if one percent of 2 the white students were in that, you know, top upper right-hand 3 corner cell, one percent of the black students were there, too 4 -- 5 A Sure. 6 Q And so on. 7 A Sure. 8 Q You would end up -- all other things being equal -- 9 admissions decisions being made the same way as far as LSAT and 10 GPA go with an odds ratio of one; correct? 11 A If I -- I still -- I don't think we're -- I'm not 12 communicating well enough for you to understand that, in fact, 13 if the decisions are made in the same way, which means the same 14 proportion of black students are admitted as in the grid cells 15 now, if that doesn't change, but there are more -- you say 16 equal numbers of white students and black students in those 17 cells, but the decisions made in those cells -- the decision 18 made in those cells are proportional to what they are now then 19 the odds ratio would stay the same that they are now. 20 If the -- the way they would get to be one, the way 21 they would get to be one is if we had -- if the admission 22 rates were the same for white students and black students in 23 the individual cells, so if the admission rates were the same 24 -- so, for instance, in the cell we talked about with respect 25 to minority students, suppose there were a hundred minority BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 21 1 students in that cell, and fifty were admitted, that would be 2 an admission rate of fifty percent. 3 Q Sure. 4 A If there were a hundred black students -- I mean, white 5 students in that cell, so a hundred minority students and a 6 hundred majority students then in order to get an odds ratio of 7 one, they would also have to have to have an admissions rate of 8 fifty. That would be an odds ratio of one. 9 So if the admission rates are the same in a cell, 10 admission rates are the same in the cell, then you have an 11 odds ratio of one. 12 So -- if we had that throughout the entire grid then 13 the overall odds ratio would be one. 14 Q Right. So what I'm saying is -- and this is back to the 15 three components is the disproportionate -- let's say the 16 uneven distribution in the grid and the allowance work in a 17 lockstaff (ph); right? 18 A What I just said is what it depends on is the admissions 19 decisions made in the cell which is the allowance. And the 20 odds ratio doesn't depend on the unequal distribution. It 21 depends on what happens in the individual cells. So if, in 22 fact, in the individual cells there are equal admission rates, 23 that's an odd ratio of one. It doesn't matter where they are, 24 or what the distribution is. The odds ratios are computed from 25 what happens in the individual cells without regard to the BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 22 1 distribution of the minority and majority students in those 2 cells. 3 Q Dr. Larntz, what's going on in an individual cell depends 4 on the distribution; right, because the distribution is 5 precisely whose in what cell. 6 A What happens in each cell depends on the decisions made 7 in that cell. And the decision, the admission rate decisions 8 in that cell are what drive the odds ratio. 9 So what happens is the admissions decision in that 10 cell and those admissions decisions are what determine the 11 odds ratios. 12 THE COURT: The bottom number. 13 THE WITNESS: The relative number. So if it's four 14 out of eight, and if it were fifty out of a hundred, that 15 would be an odds ratio of one. 16 THE COURT: And the bottom number in your cell. 17 THE WITNESS: Right. 18 THE COURT: Which is the University's decision. The 19 odds -- 20 THE WITNESS: That's the allowance. 21 THE COURT: When I say the "bottom number" I'm 22 looking at the cell. 23 THE WITNESS: Exactly. That depends on the relevant 24 size of the bottom number to the number above. 25 THE COURT: The bottom number is the University's BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 23 1 decision. 2 THE WITNESS: That's correct. That's correct. 3 BY MS. MASSIE: 4 Q It's the bottom number in relation to the number of 5 applicants of a given race in that cell. 6 A Of course. It's a proportion, the proportion admitted in 7 that cell by the University. 8 If the proportions admitted are the same then we 9 have an odds ratio of one. The same for minority and 10 majority, we have a odds ratio of one. 11 Q Thank you. 12 Now, what would the law school have to do to avoid 13 those infinities if -- let's say the applicant pool doesn't 14 change at all. What would they have to do to avoid those 15 cells where they find there's an infinite odds ratio? 16 A What would they have to do? I mean, the infinite odds 17 ratio -- I mean, from my point of view the infinite one just 18 indicates there's a big number there. You know, in the sense 19 there may be a large allowance there. 20 But, two things: Actually -- we would not get to 21 infinity if -- the case we get infinity are two. Number one, 22 where a hundred percent of minority applicants are accepted, 23 or where we have zero percent of majority applicants accepted. 24 Either of those cases we get an infinity. 25 And so, if it were important and I don't think it is BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 24 1 important to eliminate those because -- if they're small 2 numbers and those numbers don't matter in a statistical sense, 3 but if they're important for someone to eliminate those, if it 4 were, then you'd have to have less than a hundred percent 5 admission of minorities or combined with a greater than zero 6 percent admission of majority students. 7 Q Not combined with it, it's an alternative; right? 8 A No, it actually -- actually to get -- as it was talked 9 about yesterday a calculated number, to get a calculated 10 number, you would have to have both -- for both minority and 11 majority, you'd have to have some admitted and some denied to 12 get a calculated number, a number other than zero or infinity 13 to get to -- in order to get -- to avoid infinity, you would 14 have to have some admitted and some denied -- 15 Q Some minority students admitted -- 16 A And some -- and then some denied. And then some majority 17 students admitted and some denied if that were an important -- 18 if that were important. 19 Q I see. So -- in the cells where you have one to two, or 20 one Native American or black applicant with top LSAT scores and 21 top grades, you would have to reject one of those two people to 22 avoid having an infinite odds ratio; is that correct? 23 A In order to avoid seeing -- as I say, if that were 24 important to you not see that -- I don't think -- to me that is 25 of no consequence statistically. And I certainly -- I'm BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 25 1 telling you how to mathematically generate a calculated number 2 there as oppose to having an infinity. And that's how I would 3 do it. That's how it would have to be. 4 Q Do you think there's anything misleading about saying 5 that an odds ratio is infinite in a square where there are two 6 black applicants both of whom get accepted? 7 A Do I think it's misleading? I think I said that I don't 8 that I don't believe that real odds ratio is infinity. I don't 9 believe any of these are infinity. I think it's the observed 10 values infinity. That's just a number in my estimation or 11 maybe not a number if you're a real mathematician talking in 12 mathematical terms, but it just describes the information in 13 the cell. And that's all it does. 14 Q Infinity is it an imaginary number or an irrational, I 15 always forget. 16 A You'll have to call a mathematical expert. 17 Q Okay. You knew, Dr. Larntz, that a smaller percentage of 18 minority applicants than white applicants were accepted by the 19 law school; right? 20 A I think we went through that yesterday. That seems to be 21 the case, yes. 22 Q And you knew that at the same time that you were making 23 your calculations you were aware of that; true? 24 A I was aware of that? Yes, I had -- I looked at the 25 original grid and that was -- we could see that in at least the BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 26 1 original Exhibit 16, yes. 2 Q So, yes, you knew that a larger percentage of minority 3 applicants was accepted. 4 A Yes. 5 Q I just want to make sure that we're clear. 6 And you know that there's a relatively small number 7 of Black, Latino and Native American students accepted. 8 A A relatively small number, you mean in terms of numerical 9 values. 10 Q Yes. 11 A The number accepted is the number accepted. I don't know 12 if that's relatively small or not. It's not as many as there 13 are Caucasian students admitted for instance. 14 Q It's small proportion. It's a relatively small 15 proportion. 16 A Certainly -- the number of applicants is smaller and the 17 number admitted is smaller. 18 Q And that difference grows. It's smaller by a greater 19 degree. The number accepted -- the number of minority students 20 accepted is smaller by a greater degree than the number of 21 minority students who apply is. 22 The proportion -- let's take two numbers. You've 23 got the people who applied, and the people who are accepted. 24 The proportion of minority students in the group of people who 25 applied is bigger than the proportion of minority students in BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 27 1 the group of people who are accepted. 2 A Given that there's at least a slightly smaller rate, 3 there is smaller rate of acceptance, that would be true. 4 Q And I think you said a couple of times yesterday that 5 these were among the biggest odds ratios that you had ever 6 seen. 7 A The odds ratio, oh, absolutely, absolutely. 8 Q Did it ever occur to you that there was a disconnect 9 between the results that you were getting and the reality of 10 the admissions process? 11 MR. KOLBO: Object to form, your Honor. 12 THE COURT: Why don't you rephrase it? 13 BY MS. MASSIE: 14 Q Did it ever occur to you given what you knew about rates 15 of admittance, given what you knew about the overall number of 16 minority students who applied, given the things we've just been 17 through, and given the values, the magnitude of the odds ratios 18 your analysis produced, did it ever occur to you that there was 19 something wrong with your motive analysis? 20 A Absolutely not because this happens often in statistical 21 analysis that because difference in marginal distributions you 22 wind with up -- what you control for important factors in the 23 admission decision. What you control for important factors in 24 admission decision, your studying the effect in those 25 individual cells. And that effect in those individual cells BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 28 1 won't necessarily produce a particular bottom line percentage 2 or another. So there is no disconnect -- sorry to rephrase 3 your original, there is no -- there's wrong with it at all. In 4 any statistical sense this is not an unusual happening in 5 statistical analysis once you control for other important 6 factors. 7 Q This is not an unusual happening. What's the "this"? 8 A This, what you just said that we have a -- I'll call it 9 an overall rate that may be smaller in one direction but 10 considerable preference might be given or odds ratio in favor 11 of the events that has the small overall rate. That in a 12 statistical sense is something that depends on what happens in 13 the individual cells. And in the individual cells it's clear 14 that a large allowance is made in the admissions process for 15 students -- for minority students compared to majority students 16 that have the same LSAT and GPA credentials. 17 Q In light of the magnitude, the odds ratios that you found 18 to obtain and in light of the other information we've talked 19 about, did it occur to you at some point that the model wasn't 20 useful? 21 A I think this model is quite useful. That certainly never 22 occurred to me, no. 23 Q That did not occur to you. 24 A No. 25 Q Did it occur to you at any point that there was something BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 29 1 behind the face of the data, something behind the LSAT scores 2 and the undergrad grades that you ought to look into more? 3 A The LSAT and the GPA were the specified criteria the law 4 school used in its admissions process, and I used those 5 criteria. Something behind those? I don't that was -- I was 6 trying to model -- right term -- look at, understand, describe 7 the law school's decisions based on those credentials, and 8 that's what I did. And I didn't look at anything behind those. 9 "Those" being the grades and the LSAT's. 10 Q And you don't know what the source of the group 11 difference is; right? 12 A No. 13 Q In the numerical criteria. 14 A Source of the group differences in GPA's and LSAT's? 15 Q Correct. 16 A No. 17 Q And you don't know whatever that source is whether it's 18 fair or reasonable. 19 A No, I don't know. 20 Q And you don't have any reason for believing that those 21 numbers mean something constant across different ratio 22 categories; correct? 23 A I'm sorry, I lost the question. 24 Q You don't have any basis for thinking that the meaning of 25 a GPA or the meaning of an LSAT score, whatever that meaning BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 30 1 is, could be, you know, something very solid or less solid, but 2 that that meaning is constant across different racial 3 categories. 4 A I don't have any knowledge about that, no. 5 Q And the unevenness of the distribution didn't make you 6 wonder? 7 A Didn't make me wonder about that? No. 8 Q So you didn't wonder about either the data or the model 9 at any point. 10 A I think that's a much simplified view of what I did. I 11 certainly worried about the data. And I worried very much 12 about the data, and I cared a lot of about -- describing the 13 admissions decisions based on the credentials that were 14 presented, the LSAT, the GPA, and I did that. And the model I 15 did was as general a model I could get with as few assumptions 16 that I could make to describe that process. And I think you 17 did a good job describing that process. 18 Q If you really wanted to get at the role of race in the 19 admissions decisions wouldn't you have to know what the odds 20 were of getting a certain LSAT score by race? 21 A That's not the way the Admissions Office was working in 22 the sense that they look at given scores and made admissions 23 decisions. And what I was modeling was the admissions 24 decision. So I modeled the admissions decisions given the 25 presented LSAT score and GPA. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 31 1 Q Yes. 2 A And if you -- well, that's what I did. 3 Q But you are looking at the role of race in admissions; 4 right? 5 A I think I -- that's what I said, yes. 6 Q Okay. And to know what the role of race in admissions is 7 -- go ahead. 8 A I was going to say, in admissions decisions. In the 9 admit or deny decisions that are made, that's right, as 10 described -- I'm analyzing the data of the decisions made by 11 the Admissions Office. 12 Q And your basis for knowing how decisions of made was the 13 policy that you mentioned yesterday. 14 A Certainly I read that. 15 Q And the data base. 16 A And the data base was what I considered most informative 17 because it isn't always true that -- should I say -- not 18 everyone follows every policy that exists at a university. 19 So I used the data itself to inform me about the 20 nature of the decision made. 21 Q And the distribution differences by race didn't trouble 22 you when came up with those odds ratios at the end of your 23 analysis? 24 MR. KOLBO: Objection. Asked and answered, your 25 Honor. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 32 1 THE COURT: It's already been asked and answered, 2 but you can do it one more time. 3 A It didn't trouble me, no. 4 BY MS. MASSIE: 5 Q You do work in medical statistics if I understood you 6 yesterday? 7 A I do work in a variety of areas and I do work in medical 8 statistics, yes. 9 Q I want to give you a hypothetical because I want to 10 understand how -- what kinds of things would make a 11 statistician reconsider a model or try to look beyond the face, 12 the facial values of data used in a model in the presence of 13 odd results, let's say. 14 Let's say you're looking at two hospitals. Let's 15 say they're in different neighborhood. One's in a more 16 affluent neighborhood and one's in a more poorer neighborhood, 17 and you're testing the effectiveness of a drug. You've been 18 asked to test the effectiveness of the drug, what are the cure 19 rates essentially. 20 And let's say in the hospital that's in the poorer 21 neighborhood you get a cure rate of sixty percent, and in the 22 hospital that's in the more affluent neighborhood you have a 23 recovery rate of ninety percent with whatever drug or therapy 24 we're talking about. 25 Wouldn't you want to look behind those numbers to BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 33 1 find out if the poorer hospital was built on a toxic dump or 2 if there were environmental poisons that were impeding the 3 rate of cure, of it there were other environmental factors 4 that were creating what I think would be a pretty big odds 5 ratio in that case between sixty percent and ninety percent? 6 A I understand your hypothetical example, and if I could 7 just carry it the way we actually do it, would that be all 8 right? In looking like data like that we typically would have 9 for a new drug the new drug and the old drug used in both 10 hospitals. That's how we do a study. 11 If we did that then, in fact, we would know very 12 strongly that hospital cure rates no matter therapy, may 13 differ. We would know that. 14 And we know they differ by hospitals. It's kind of 15 disconcerting that they differ by hospitals. Certainly in the 16 press that hospital cure rates differ considerably by 17 institution. And what we as statisticians to understand the 18 effect of the new drug is that we do exactly what I did here. 19 We compare the new drug in the hospital that has the high cure 20 rate, say. And we compare the new drug to old drug in the 21 hospital that has low cure rate. And we combine the 22 information in exactly the same way I did here. 23 Exactly the same way knowing that there would an 24 underlying -- could be and probably is an underlying 25 difference in the cure rates. So your example in the medical BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 34 1 field is exactly what we would do. We compare, we combine the 2 odds ratios exactly the same way to here. 3 Having different underlying cure rates with two 4 hospitals is in my estimation, my statistical expertise, my 5 statistical -- I know those exist. 6 Now to understand the effect of the new drug I have 7 to make sure I control for that, and exactly the same way I 8 control for here, exactly the same statistical method, 9 exactly. There's nothing different about it. 10 And we take as given that there will be these 11 differences in cure rates by hospital. And we then control 12 for them in our final analysis of putting the odds ratios 13 together, how good this drug is. 14 So that's the kind of analysis that we would do in 15 the example for looking at a new drug, exactly the same 16 analysis we're doing here. And for exactly the reasons, for 17 exactly the reasons that you provided that there may be 18 differences of the underlying rates by hospital. 19 Q I'm actually not asking you to compare and -- this may 20 make the hypothetical less realistic so I apologize -- I'm not 21 asking you to compare a new medicine and an old medicine, I'm 22 saying you have these different rates of cure. 23 A That's a different issue -- 24 Q And they're substantially -- 25 A It's a different problem. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 35 1 Q Yes. 2 A Totally different problem. It's not an analogous at all 3 to what we're doing here, okay? But if you're interested in 4 studying the underlying causes of the difference in cure rates 5 by hospital, then we need to do a study and find out what goes 6 on in the various hospitals and collect variables about 7 hospitals, and then relate those variables of the hospital to 8 the cure rates to the hospital. It's a different kind of 9 study. And that's the kind of study that is being done to 10 indicate quality of hospital institutions, for instance. 11 Q My question to you though would you ask the question? 12 You'd be interested in the question of why there was this 13 Big difference; right? 14 A What I would do is I would try to find people who would 15 tell me about variables that would -- like on the issue I was 16 discussing, if our instant issue of differences among hospitals 17 then I would want to be informed about the variables that might 18 help me to understand those difference in cure rates, yes. 19 Q Because those differences are disconcerting. I think I'm 20 quoting you. 21 A Difference -- did I say it just now? 22 Q Yes. 23 A The differences are disconcerting. Well, I mean, 24 disconcerting in the sense of statistically you want to look at 25 what causes the difference. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 36 1 Q You want to find out what's going on. 2 A If I were focusing on the questions of why there are 3 different cure rates in hospitals, then I would want to find 4 out what's going on, that's right. That's a separate issue. 5 Q You wouldn't stop treating the people in the hospital 6 that was built on a toxic waste dump; right? 7 A Would I? 8 Q Yes. 9 A Would I think that? No, I think there are underlying 10 factors that could easily explain differences such as you said. 11 There certainly could be underlying factors, yes. 12 Q You don't have any basis for saying that the admissions 13 system at U of M Law School is unfair to white applicants; 14 right? 15 MR. KOLBO: Object to form, your Honor. 16 THE COURT: Sustained. 17 BY MS. MASSIE: 18 Q Since you don't know what's behind the criteria that 19 forms the basis for your analysis, you don't have any opinion 20 on whether the admissions system at the law school is unfair to 21 white applicants; do you? 22 A My analysis in forms of what admissions decisions of the 23 law school, with respect to how decisions are made, with 24 respect to undergraduate grade point averages, and LSAT's. So 25 that's what my analysis shows. And it shows how individuals BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 37 1 with similar credentials are treated. 2 Q So the answer -- 3 A And thus, and thus, as there are factors that would drive 4 LSAT and GPA if that's -- then I don't have information about 5 those other factors, that's right. 6 Q And those factors would be necessary for making a global 7 statement about the fairness of the system; true? 8 MR. KOLBO: Object to form, your Honor. 9 THE COURT: If he has an answer, he can answer. 10 BY MS. MASSIE: 11 Q Do you have an opinion on that? 12 A Fairness in a statistical sense would say are -- into 13 similar credentials treated similarly. In statistical 14 standards that's what I could measure, and that's what I've 15 done. 16 Q And you're assuming that a similar credential is the same 17 number for a Black person, as for a Native American person, as 18 for a White person, and so on. That's what you're assuming 19 when you make -- 20 A The credentials presented with -- individuals with the 21 same credentials means the same thing for -- that's certainly 22 -- that's certainly -- those statistical were made for people 23 with similar credentials. We're comparing individuals with 24 similar credentials. 25 Q You take the credentials, the numbers on the face of BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 38 1 them, and you stop there. 2 A I use those numbers to look at the admissions decisions, 3 that's absolutely right. 4 Q So you don't have any basis for saying there's a double 5 standard in admissions at the law school. 6 A Well, there certainly is a double standard with respect 7 to how they treat individuals, with respect to similar 8 credentials, that is, grade point average and LSAT. 9 They certainly treat individuals with similar LSAT 10 and GPA differently. 11 Q Okay. 12 A There's no question about that. 13 Q And if those measures, if undergrad grades and LSAT 14 scores are systematically biased, measures of credentials, they 15 cannot be used as a yardstick of the extent to which race is a 16 part of the admissions program; correct? 17 MR. KOLBO: Object to foundation, your Honor. 18 THE COURT: Sustained. 19 MS. MASSIE: Judge, we're going to be -- our whole 20 case is going to be showing that these measures are 21 systematically biased so could I ask the question -- 22 THE COURT: That may be true, except he's not here 23 as an expert in that area. I mean, he's already testified and 24 told you just now that he just took the figures. 25 BY MS. MASSIE: BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 39 1 Q But hypothetically, if they are systematically biased 2 then that means they can't be used to measure the extent to 3 which race is used in admissions; correct? 4 MR. KOLBO: Same objection, your Honor. 5 THE COURT: Sustained. I understand what you're 6 going to try to prove during this trial, but you can't do it 7 through this witness. He doesn't have any expertise in this 8 area. 9 BY MS. MASSIE: 10 Q Your conclusion that there's a double standard in 11 admissions turns on the presumption that there is not a 12 systematic bias in GPA and LSAT; correct? 13 A I don't think so. My -- the admissions decisions are 14 made from LSAT and GPA scores. And it's clearly the -- it's 15 clear from the data that admissions offices -- that admissions 16 office is using those scores for both minority and majority 17 students. It's clear they are. And it's clear that they make 18 decisions with a large allowance made for minority students 19 with the same LSAT scores, GPA as majority students. 20 Q And you don't know whether allowance, to use your term, 21 makes the program, the admissions program overall more or less 22 fair and equal; right? 23 MR. KOLBO: Object to the form, your Honor. 24 THE COURT: Sustained. Plus, I'm not sure exactly 25 what you're asking. Why don't you rephrase it? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 40 1 BY MS. MASSIE: 2 Q You don't have an opinion about the overall fairness of 3 the admissions system. 4 THE COURT: Other than that which you've already 5 given. 6 A Other than -- I mean, I've already testified of where I 7 think there's a large allowance. That's what I testified to 8 and that's my opinion. 9 MS. MASSIE: I don't have anything else. 10 THE COURT: Plaintiff, anything you wish? 11 MR. KOLBO: We have nothing, your Honor. 12 THE COURT: Very well. Doctor, you've made your 13 plane. 14 THE WITNESS: Thank you, very much. 15 THE COURT: Thank you, very much. We appreciate it. 16 Plaintiff? 17 MR. KOLBO: Your Honor, we have nothing further at 18 this time. We have some deposition designations and so forth. 19 The parties have talked about just submitting those to the 20 Court -- 21 THE COURT: Yes. 22 MR. KOLBO: -- for trial. There will be exhibits 23 with those as well and so forth. We have nothing further at 24 this time. 25 THE COURT: Very well. Subject to the Plaintiff BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 41 1 being able to designate certain portions of depositions and 2 exhibits, the Plaintiff rests; is that correct? 3 MR. KOLBO: Yes. 4 THE COURT: Mr. Payton? 5 MR. PAYTON: Your Honor, this happened a little bit 6 more quickly than I expected. 7 THE COURT: Me, too. 8 MR. PAYTON: If we could take a short break so I can 9 get my -- 10 THE COURT: Sure. How much time? 11 MR. PAYTON: Fifteen minutes would be fine. 12 THE COURT: Okay. We'll see you in about fifteen 13 minutes. 14 (Court recessed, 9:30 a.m.) 15 (Court reconvened, 9:50 a.m.) 16 THE COURT: Okay. Mr. Payton? 17 MR. PAYTON: I understand, your Honor, that Mr. 18 Kolbo, the Plaintiff, has rested with the understanding that 19 we're going to be presenting other things, documents, and 20 depositions. 21 THE COURT: Correct. 22 MR. PAYTON: But given that's where we are, and it's 23 time for the defendants to present their case, I think it's 24 appropriate now to address an issue that's just been hanging 25 out there just by briefly an oral motion regarding the BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 42 1 individual defendants and whether or not they shouldn't be 2 entitled to judgment right now at this stage of the 3 proceedings. This will just take a few minutes, but I think 4 it's an appropriate point to talk about what the Plaintiff has 5 presented in the way of evidence that relates to these 6 individual defendants. And then at the end of that, I'll -- 7 THE COURT: You could do so if you want, but it's my 8 intention to deal with that in my opinion as oppose to right 9 now. I certainly understand -- you have briefed extensively 10 in your Motion for Summary Judgment. I have no problems you 11 making a record. It's an issue that I'm well aware of. 12 MR. PAYTON: I certainly know the Court is well 13 aware of it because we presented you with briefs -- 14 THE COURT: Right. Go on. 15 MR. PAYTON: -- but if I can just take a few minutes 16 just to see where we are. 17 THE COURT: Absolutely. 18 MR. PAYTON: Because this case was brought not only 19 by against the University of Michigan and its law school but 20 against three individual governmental officials, Lee 21 Bollinger, President of the university; Jiff Lehman, the 22 current Dean of the law school; and Dennis Shields who was the 23 Director of Admissions when the policy went into effect. They 24 were sued in their personal individual capacities for money 25 damages against -- I know the Court is well aware of this BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 43 1 issue because it's been briefed more than once -- 2 THE COURT: More than once. 3 MR. PAYTON: More than once. But the standard is 4 actually very clear and not in dispute. Individual 5 governmental officials are shielded from personal liability 6 under the doctrine of qualified immunity when they proceed in 7 good faith to carry out their official duties based upon the 8 law as a reasonable governmental official would have 9 understood. 10 Now, I understand that Justice Powell's opinion in 11 Bakke is the question of whether it is the case that governs 12 this case is under advisement. The Court is going to decide 13 that. And you know our views. You've heard that. But 14 however this Court resolves that question, I think there's no 15 question but -- 16 THE COURT: It's an independent issue. 17 MR. PAYTON: That's right. The Bakke opinion -- 18 THE COURT: One has nothing to do with the other. 19 MR. PAYTON: Right. 20 THE COURT: I absolutely agree. 21 MR. PAYTON: And the Bakke opinion however it's 22 resolved in the case in chief, it is the governing standard 23 for whether or not the officials were acting reasonably. 24 So unless there's evidence that these three 25 individual defendants violated Plaintiff's clearly established BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 44 1 rights, that's acted in a way of -- clearly exceeded the law 2 that a reasonable person would have understood it to be, they 3 can't be held personally liable. 4 The Plaintiff has now rested. What's the Plaintiff's 5 case against these three individuals? Lee Bollinger. He is 6 the President of the university. He was the Dean of the law 7 school in 1992 with policy was adopted. 8 He set that process in motion. 9 While he was dean, Allan Stillwagon left the law 10 school, and a new director of admissions was hired, Mr. 11 Dennis Shields. And we know the rest. 12 Jeff Lehman, the current Dean. He served on the 13 committee that wrote the new policy that was adopted in 1992. 14 As Erica Munzel testified as Dean he told her how many 15 students should be admitted in a class and how many Michigan 16 residents that class ought to contain, but that he has never 17 had a conversation with her about any comparable number, range 18 of numbers, or percentages as it relates to minority students. 19 Dennis Shields. He was the new director of 20 admissions in 1991, also served on the Faculty Admissions 21 Committee that drafted the 1992 policy. He hired Erica 22 Munzel. He trained her on how to review applications, 23 file-by-file basis, looking at all applications, letting them 24 compete against each other. And while race was one factor, it 25 was only one of many factors in which all candidates competed BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 45 1 for admission. That's it. 2 They called Allan Stillwagon, Erica Munzel, and then 3 they called Kinley Larntz. Now nothing that Mr. Stillwagon 4 or Ms. Munzel testified to the Court reaching any qualified 5 immunity. 6 That just leaves Kinley Larntz. Now his testimony about 7 odds ratios of admissions of being greater for minority 8 students within the same cells than for majority students, I 9 believe his testimony was quite flawed and actually didn't 10 really survive, but I'm going to assume I'm wrong and that it 11 is just what he said, okay, on its own terms. 12 What does the odds ratios point have to do with using 13 race as a factor as Bakke allows. Is Plaintiff proposing that 14 this Court establish some new legal standard about odds 15 ratios, an odds ratio of -- pick a number. You know, pick a 16 number, as Dr. Larntz said a large number. Pick a large 17 number, be deemed to constitute more than a plus factor that 18 Bakke says is okay. It would have to ignore the uncontested 19 testimony of -- in the Plaintiff's own case from Erica Munzel 20 about how admissions decisions are actually made, 21 case-by-case, file-by-file, just as Bakke contemplated. 22 Case-by-case, file-by-file, considering all the relevant 23 factors including race to select a diverse class, and using 24 race to obtain a critical mass of minority students in order 25 to the benefits of that first class. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 46 1 But this would have to be a new rule about odds 2 ratios, and obviously if it's a new rule, it can't be a new 3 rule that sort of voids someone's qualified immunity. It has 4 to be clearly established. 5 Rule 52(c) authorizes this Court to make dispositive 6 finding on facts given the evidence that's been presented and 7 to grant us partial judgment on the case as it now exists. I 8 think the Plaintiff has put in insufficient evidence, wholly 9 insufficient evidence to hold these three individuals liable 10 and to breach their qualified immunity. The individual 11 defendants I think should not have been actually joined in 12 this case, and they should dismissed from it right now. 13 THE COURT: Thank you, Mr. Payton. 14 MR. KOLBO: Very briefly, your Honor? 15 THE COURT: Sure. 16 MR. KOLBO: We, your Honor, actually have a 17 stipulation in the Pretrial Order that Plaintiff -- if it's 18 determined that the university is liable, the law school is 19 liable for the manner in which they use race in the admissions 20 process. The Plaintiff has sued the individuals who would be 21 responsible for that unlawfulness. So that their individual 22 responsibility really depends on whether or not the Plaintiff 23 establishes that the University of Michigan Law School policy 24 is unlawful even if one merely keeps that issue as to whether 25 it's unlawful in light of Justice Powell's opinion as BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 47 1 establishing what would be fairly violated rights under the 2 constitution. 3 As I mentioned in our Opening Statement, your Honor, 4 we believe actually that the burden in this case rests upon 5 the Defendants. There is no dispute in this case that the law 6 school uses race as a factor in admissions. At that point, 7 the burden actually shifts to the Defendants to demonstrate 8 that race is being used in the manner that is narrowed 9 tailored to achieve what they assume to be a compelling 10 governmental interest. 11 Since they haven't put on a case yet, your Honor, 12 they certainly haven't carried that burden. 13 For those reasons and for the reasons that we've 14 actually indicated in the Summary Judgment papers that we've 15 filed, we don't believe that the law school is entitled to 16 Summary Judgment on Qualified Immunity. As indicated, your 17 Honor, of course, we are going to be submitting additional 18 exhibits and deposition testimony, designated for that purpose 19 at the close of the trial, or at some point during the course 20 of the trial. We would oppose the motion. 21 MR. PAYTON: Just one -- 22 THE COURT: Sure. 23 MR. PAYTON: This is what the Pretrial Order says in 24 the stipulations that we've reached. 25 THE COURT: What page are you reading? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 48 1 MR. PAYTON: I'm on page 4. 2 THE COURT: I see it. What line? 3 MR. PAYTON: It's paragraph 5. It's right in the 4 center of the page. 5 THE COURT: I see it. 6 MR. PAYTON: It says, 7 "Insofar as Plaintiff prevails in her argument that 8 the operation of the Law School's admissions process violated 9 Plaintiff's clearly established constitutional rights such 10 that University officials responsible for the operation of the 11 admissions process may be individually liable for any 12 damages." 13 That's the phrase, "such that." 14 And I don't disagree with Mr. Kolbo that we bear the 15 burden on our affirmative defense which is the overall case. 16 On the issue of qualified immunity that's a different 17 standard. And they have to show, they have to show that, in 18 fact, these officials were acting in violation of clearly 19 established legal rights as a reasonable person would 20 understand that and they have not done that. And there's no 21 evidence in the record that they have put in. I hear him 22 saying he's going to put in some other things. I don't think 23 there could be any other things that are going to undermine 24 qualified immunity. It's a very powerful doctrine, and I 25 think that these three individuals are entitled to its BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 49 1 protection right now. 2 THE COURT: Okay. I'll take the motion under 3 advisement. I suspect you concur -- 4 MS. MASSIE: We join, yes. 5 THE COURT: Okay. I'm sorry, I didn't mean -- I 6 just assumed you concurred. 7 MS. MASSIE: No problem. 8 THE COURT: I'll take it under advisement. 9 MR. PAYTON: Okay. Your Honor, the University will 10 now present its case. Let me just tell you where we're going 11 to go today and tomorrow. 12 THE COURT: Please. 13 MR. PAYTON: We're going to call first, President of 14 the University, Lee Bollinger who is right here. I think we 15 will -- we have a very good chance of finishing with him this 16 morning. 17 THE COURT: That's great. 18 MR. PAYTON: This afternoon we anticipate calling 19 Professor Richard Lempert. I believe we will probably finish 20 him this afternoon. Tomorrow morning, we expect to begin with 21 our expert on statistical analysis, Stephen Raudenbush. He 22 will take certainly all the morning, maybe some of the 23 afternoon. And we will then put on in the afternoon Dennis 24 Shields who was the Director of Admissions in 1991, and served 25 on the Admissions Committee. That's what we expect for the BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 50 1 rest of today and tomorrow. 2 THE COURT: Great. I appreciate it. 3 MR. PAYTON: The University calls as its first 4 witness, President Lee Bollinger. 5 L E E B O L L I N G E R , 6 having been called as a witness herein, and after having been 7 first duly sworn to tell the truth, the whole truth and 8 nothing but the truth was examined and testified as follows: 9 DIRECT EXAMINATION 10 BY MR. PAYTON: 11 Q Good morning, President Bollinger. 12 A Good morning. 13 Q Would you state your full name for the record? 14 A Lee C. Bollinger. 15 Q Okay. And you are currently the President of the 16 University of Michigan? 17 A That's correct. 18 Q And how long have you served in that position? 19 A Four years. 20 Q You started in 1997? 21 A That's correct. 22 Q Okay. And before you were the President of the 23 University of Michigan, what job did you hold? 24 A I was the provost at Dartmouth College. 25 Q What does the provost do? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 51 1 A The provost is the chief academic officer principally 2 responsible for the academic quality of the institution. Also 3 the chief budget officer. 4 Q Reports directly to the president? 5 A That's correct. 6 Q And prior to being the provost at Dartmouth, what 7 position did you hold? 8 A I was the Dean of the University of Michigan Law School. 9 Q And what was your term of being the Dean of the law 10 school? 11 A 1987 to 1994. 12 Q And prior to being the Dean of the law school you were on 13 the faculty for a number of years; is that correct? 14 A That's correct. 15 Q When did you start on the faculty? 16 A I joined the faculty in 1973. 17 Q So you're on the faculty in 1973, and then 1987, you 18 became the Dean. 19 A That's correct. 20 Q How do you become Dean? What happens? 21 A There's a search committee, a search process that is set 22 up. The central administration, the provost, ask the faculty 23 to recommend a number of people to form a search committee. It 24 is principally, if not exclusively, made up of faculty members. 25 A national search is conducted. Interviews are held with the BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 52 1 faculty. And then the search committee presents three names to 2 the provost and the president and they select from that list. 3 Q Now, you wanted to be Dean; right? You weren't -- it 4 wasn't against your will that you were made Dean, you wanted to 5 be Dean. 6 A If the truth be told, yes. 7 Q And why were you interested in being the Dean of the law 8 of the school? 9 A I care deeply about the law school. I realize being an 10 academic administrator was something that I might be -- have 11 some talents at, and those two things led me to want to accept 12 the position. 13 Q And did you have a view or a vision of what you wanted to 14 do as Dean of the law school? 15 A One of the things about becoming the Dean is that you 16 move from being a regular faculty member with really limited 17 responsibility for administrative things in the law school to 18 having full responsibility. So I had a lot to learn. But what 19 I knew is that my principal job was to focus on the academic 20 quality of the law school, and that really meant the quality of 21 the faculty and the quality of the student body. 22 Q And did you understand when you became Dean that you 23 needed to focus on admissions? 24 A I did. Admissions is really the crucial point at which 25 we gather a class. And that -- the composition of the class, BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 53 1 the nature of the class, the quality of the student body is 2 really determined at that stage. 3 So I knew that at some point admissions was going to 4 have to be a principal focus. 5 Q Now, Allan Stillwagon who was the first witness at the 6 trial here, he was the Dean of Admissions when you took over -- 7 Director of Admissions when you took over as Dean in 1987; is 8 that correct? 9 A That's correct. 10 Q Had you had some contact with him as a faculty member? 11 A I had, but very casual. I think once or twice I may have 12 served on the so-called Admissions Committee. But at that time 13 it was a committee that was regarded as a light committee 14 obligation. And, of course, it's a relatively small community, 15 some fifty faculty, and you tend to know the staff and the 16 like, but very limited contact with Allan. 17 Q You didn't hire Mr. Stillwagon. 18 A I did not. 19 Q Who had hired him? 20 A I believe Dean Terry Sandlow. 21 Q He's your immediate predecessor? 22 A Yes. 23 Q Now, Mr. Stillwagon reported to you as the Director of 24 Admissions? 25 A That's correct. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 54 1 Q And what was your contact with Mr. Stillwagon once you 2 became Dean? 3 A I guess I would describe it in two ways. There's the 4 contact that comes from issues arising this particular 5 application, this particular policy. And that might come up 6 once every two weeks or once a week. I can't remember exactly. 7 But there be limited contact, really directed at some 8 particular issue. 9 And then a few times a year we would we would 10 sit down and go over a more extensive evaluation of admissions 11 and what had happened the preceding year, what we hoped to 12 accomplish in the subsequent year. 13 Q Let me ask you this, President Bollinger, when you became 14 Dean in 1987, what was your, you know, state of knowledge or 15 familiarity with admissions at the law school? 16 A It wasn't very deep I'm afraid. In fact, I knew very 17 little about reading files. I knew very little about the 18 particular policies. I was just generally familiar with 19 admissions. 20 Q Okay. Do you recall prior to being Dean, do you recall 21 being aware something called the Special Admissions Program? 22 A I recall that term. There's a concept. But no particular 23 knowledge as to how it was implemented. 24 Q Okay. What did you think it was? 25 A Well, I knew that the law school had the commitment BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 55 1 really for two decades at that point, roughly two decades, to 2 ensure that we had a racially and ethnically diverse student 3 body. And that's what the Special Admissions term applied to. 4 Q Now, when you became Dean, did you come to have concerns 5 about the way in which Mr. Stillwagon operated as the Director 6 of Admissions? 7 A Yes. I knew - to go back to what I said a while ago, I 8 knew that at some point I was going to focus on admissions and 9 yet I didn't have enough information really at the beginning to 10 my deanship to undertake that. But in the first few years, of 11 course, I developed impressions about how we might improve 12 admissions. Things like getting more faculty involvement. 13 There was very little faculty involvement in the admissions. I 14 thought that ought to increase. Issues about what kinds of 15 things we look for in applications, how we review them. I also 16 knew that issues of racial and ethnic diversity were on the 17 horizon. 18 So in the first few years I would arrange these for 19 discussion with members of the faculty, but also with the 20 admissions office and Allan Stillwagon in particular. 21 And my concerns were that Allan may not be as 22 receptive to rethinking the issues as I thought was required. 23 And so -- I was concerned about that. 24 Q What do you mean he not be receptive to rethinking the 25 issues, what are you talking about? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 56 1 A This really required a kind of openness to reshaping 2 admissions in some significant ways. And I felt that Allan was 3 quite resistant of that. 4 Q Did you also have some concerns about allegations that 5 had come to your attention about remarks that had been made to 6 minority applicants and female applicants that were perceived 7 to be offensive? 8 A Yes. 9 Q Now, did you raise any of these concerns with Mr. 10 Stillwagon, the need for, you know, more flexibility, and all 11 of those, and all the remarks, did you raise this with Mr. 12 Stillwagon? 13 A Yes, I did. 14 Q And what happened? 15 A Allan was resistant to these discussions. And I 16 eventually decided that it was important to have a change. 17 Q And is that how he came to part ways with the law school? 18 A Yes. 19 Q Okay. Now, President Bollinger, I want you to go back to 20 being Dean Bollinger for the purposes of this because what 21 we're concerned with is when you were Dean. 22 When you were Dean what did you view the law 23 school's educational mission to be? 24 A It's very difficult to capture an educational mission in 25 a paragraph, but I would these are the principal matters. The BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 57 1 law school has the responsibility to communicate to students, a 2 body of law. There is lot to learn about contracts, civil 3 procedure, torts, anti-trust, constitutional law. Part of our 4 majority responsibility is to convey to each new generation of 5 law students as much of that body of law and juris prudence as 6 we can. So that I would say is the first. 7 The second is to try to inculcate in students a way 8 of thinking. And it's often talked about in law schools as a 9 special way of approaching the world. I'm not so sure it's 10 that special. But in any case what it is to my mind, is an 11 ability to make problems more complex. And that means being 12 to understand multiple view points, multiple ways of 13 understanding a problem or the world at the same time. And 14 this turns out given human nature to be exceedingly difficult 15 to do. There's a tendency that we have to think that we know 16 what the answer is; to think that we know how to deal with a 17 problem or an issue, and only later are we surprised to find 18 out that there are many other ways of viewing this same issue 19 or problem. 20 And law schools are built around the proposition 21 that by analyzing case-after-case-after-case, problem- 22 after-problem in a very real setting, that is, of a real case, 23 that students will acquire through this habitual exercise this 24 unusual capacity to be able see and take a point of view, and 25 at the same time integrate into their thinking other BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 58 1 prospectives on the same problem. That's the second. 2 The third I would say is that in many ways law 3 schools are the continuation of the ideal of the liberal 4 education, law so interwoven in life that you can't understand 5 law fully unless you under economics or history or philosophy. 6 And we try to integrate a liberal education really into a law 7 school education. 8 So I would say that is my sense and my description 9 of what a law school education is all about. 10 Q Does race play a role in the law school's educational 11 mission? 12 A Absolutely. 13 Q What's the role? 14 A Given the history of this country, given the history of 15 race relations in the United States and indeed in the world, 16 both for good and for bad, it is simply a part of life. And it 17 is very important as you're trying to do these things I've just 18 outlined, that is to understand the body of law, and multiple 19 ways of thinking, and to extend the liberal education, it is 20 very important to be able to do that in a context in which 21 people have different life experiences, different backgrounds, 22 comment the world in different ways. And racial and ethnic 23 diversity are as critical to that process as any other way in 24 which we try to compose a class in our discussions and in our 25 search. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 59 1 Q President Bollinger, I want to come back to the 2 Admissions Policy and admissions at the law school when you 3 were Dean. You hired Dennis Shields to be the Director of 4 Admissions; is that correct? 5 A That's correct. 6 Q And what was that process? How did that work? 7 A I appointed a search committee and the search committee 8 conducted a national search. And, again, we had, I think three 9 or four candidates. I can't remember precisely how many and 10 from those I interviewed each one of them, and selected Dennis 11 as the best. 12 Q Okay. I want to understand something about how the 13 policy works at the law school. Who is ultimately responsible 14 for policy matters at the law school? 15 A It is really the faculty working together with the Dean. 16 Law school faculties work sort -- the committee as a whole. 17 And the Dean is responsible for bringing issues to the faculty, 18 and trying to provide leadership on those issues, but 19 ultimately it is the faculty working with the Dean that decides 20 major policy. 21 Q Now, in the fall of 1991, you started the process of 22 coming up with a new admissions policy. You appointed a 23 Faculty Admissions Committee to look into that? 24 A That's correct. 25 Q Could you just describe how you went about doing that? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 60 1 A I mentioned a moment ago that I knew I was going to have 2 to focus on admissions in a broad way. I knew also that issues 3 of racial and ethnic diversity and using race as a factor in 4 admissions for educational purposes, I knew that that was under 5 discussion and review in the society. I knew that Bolt Law 6 School at the University of California in Berkeley, for 7 example, was in discussions with the federal government about 8 their process of admissions and using race as a factor. 9 Q They were being investigated. 10 A I think -- let me just say I'm not sure I would use -- I 11 just don't know exactly what term I would -- but certainly 12 there were discussions under way, and it was a review, critical 13 review, perhaps. 14 I knew that these were major issues and I had this 15 broad sense as I said that we should be rethinking admissions. 16 And to that end, I wanted as a major activity for the faculty 17 and all of us that year, I wanted us to focus on admissions. 18 This was not just your usual we've got ten issues, let's take 19 them up this year. This was going to be a major focus for the 20 law school. 21 And, of course, because some of these involved not 22 only policy but the Constitution of the United States, law 23 itself, it was imperative in my view that we be as confident 24 as we could that we were in full compliance with the 25 Constitution and the law. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 61 1 So I selected a committee. With that in mind, these 2 were committee members that were highly respected by the 3 faculty, very distinguished scholars, several of whom have 4 expertise in this area of constitutional law involving race, 5 civil rights, and Bakke and so on. And I wanted people who 6 would care deeply about admissions and in making sure that we 7 had the best admissions policy that we could. 8 To my knowledge -- to my recollection, I don't think 9 we had a written policy before that, and part of this was to 10 get the law school faculty to say this is what we want to do 11 with admissions. So the committee was set up for that 12 purpose. 13 Q All right. Now, Professor Lempert was picked by you to 14 chair this committee. Why did you select him? 15 A Professor Lempert met all the qualifications I mentioned 16 a moment ago. But he also had added capacity and things like 17 social science work because he has Ph.D. in sociology and has 18 an appointment in the Sociology Department, so it's an 19 excellent working -- 20 Q He's a dual appointment. He's also a law professor? 21 A Yes, that's correct. But he has expertise and knowledge 22 being able to work with data sets and quantitative data and so 23 on. And that was a very important qualification. 24 Q You also put Dennis Shields on this committee; is that 25 correct? BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 62 1 A That's correct. 2 Q Now, Dennis Shields had literally just been hired by you 3 to be the director of admissions. He hadn't been at Michigan, 4 why did you put Dennis Shields on the Committee? 5 A I believed that admissions would work best if we had more 6 integration between the faculty and the admissions process, 7 more involvement, more engagement of faculty in admissions. 8 I also believed there was and goes with the point 9 which is a slightly different way of putting it, I also felt 10 that the faculty was -- really didn't know as much as it 11 should about the admissions process. I was a perfect example 12 of that as a faculty member. I felt that the Dean of 13 Admissions or the Director of Admissions didn't know enough 14 about what the faculty expected, and knew and their experience 15 in the classroom, and with students. So this was the perfect 16 opportunity to take a new director admissions and merge him 17 with the faculty in a very important venture for us. And it 18 just seemed like an ideal situation. 19 Q Now, once the committee is formed in the fall of 1991, 20 and starts doing its work what was your relationship to the 21 committee? What's your style as Dean? Did you leave them 22 alone, did you go to the meetings, what happened? 23 A No, I -- once they're appointed and thinking about this 24 I'm sure would get periodic reports on how they were doing, and 25 I, of course, had some views, I've already said them, and I BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 63 1 wold say them to the committee. And I would make a case for 2 things that I believed. But at the end of the day it was 3 really their job to come up with a policy. They would present 4 that to me at the end and then we would take it to the faculty, 5 and that's what we did. 6 Q The committee starts in the fall of 1991, and it 7 completes its report in April of 1992, many months later. And 8 then that report is presented to the faculty? 9 A That's correct. 10 Q You were obviously the Dean, you were at the faculty 11 meeting, who presented the report? 12 A It would be the chair of the committee? 13 Q Okay. What happened at that meeting with this report and 14 recommendation which is our exhibit and our policy, what 15 happened at the meeting. 16 THE COURT: Exhibit 4. 17 MR. PAYTON: Yes. 18 A I don't remember it in detail. It's been many years now. 19 But I do remember the sense of the day, and the faculty 20 approached it with all of the seriousness one would expect from 21 what I've said was -- sort of the purpose of the whole 22 activity. I remember just general and extensive discussion. 23 And I also remember a general and I believe unanimous vote in 24 favor of the policy as thought through and as recommended by 25 the committee. BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 64 1 BY MR. PAYTON: 2 Q Okay. Now once the policy is adopted did you meet with 3 Dennis Shields and tell him that he had to get any particular 4 number of minority students into the class? 5 A No. 6 Q Or any particular percentage of minority students in the 7 class? 8 A No. 9 Q Or any particular range of minority students in the 10 class? 11 A No. 12 Q Did the Faculty Admissions Committee have to deal with 13 Dennis Shields? Did you interface or did you leave that up to 14 the committee as well to implement the policy? 15 A I left it up to the committee, and the point of this was 16 to have a faculty committee that would be much more intimately 17 involved in the admissions process, and that's exactly -- the 18 issue of critical mass and diversity and diversity of all kinds 19 was really the -- it was the responsibility of the committee 20 working with admissions office. 21 Q Okay. You've read the 1992 policy recently. I asked you 22 to read it. 23 A Yes. 24 Q How does it hold up? 25 A I'm very proud of this. I think that the law school met BENCH TRIAL - VOLUME 3 THURSDAY, JANUARY 18TH, 2001 65 1 its responsibility to -- as seriously as possible and with as 2 much good faith as one can bring to an issue like this, to 3 think through issues of racial and ethnic diversity in the 4 context of the entire admissions process. 5 I'm proud of every part of it. I'm proud of what 6 happened with respect to the broad understanding of diversity, 7 the conceptions of -- the way the admissions process worked. 8 And I'm extremely proud of the policy with respect to racial 9 and ethnic diversity and how that's conceived of. 10 MR. PAYTON: Your Honor, I had originally thought 11 that it would make some sense to sort of go through the 12 policy, but I think because Professor Lempert is coming next 13 and we're going to spend more time going through the policy, 14 I'm just going to skip that with President Bollinger. 15 THE COURT: Thank you. 16 BY MR. PAYTON: 17 Q President Bollinger, two years after this policy was 18 adopted in 1994, you left the law school and went to Dartmouth; 19 is that right? 20 A That's correct. 21 Q And since then you've become the president of the 22 university; is that correct? 23 A That's correct. 24 Q And you really haven't had any ongoing responsibilities 25 at the law school since 1994; is that correct? 66 1 A That is correct. 2 MR. PAYTON: No further questions. Thank you, very 3 much. 4 THE COURT: Why don't we go in order? Any 5 questions? 6 MS. MASSIE: We don't have any. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 1/18/01 - BENCH TRIAL - VOLUME III 1 CROSS EXAMINATION 2 BY MR. KOLBO: 3 Q. Good morning, President Bollinger. 4 A. Good morning. 5 Q. We met once before, I think some time ago. My name is 6 Kirk Kolbo and I represent the plaintiff in the current 7 lawsuit. Am I correct that, that Allan Stillwagon was Dean 8 of Admissions for approximately three years after your 9 tenure as Dean at the Law School commenced? 10 A. I think that's right. 11 Q. Okay. And during that three-year period, did you have 12 an interest in how the admission process worked? 13 A. Did I have an interest in how, of course I had an 14 interest. 15 Q. As the dean, I take it, I think I understood this from 16 your earlier testimony this morning, you took an increased 17 interest in how admissions worked, once you had 18 responsibility or once you assumed the responsibility of 19 Dean, is that a fair statement? 20 A. What I said is that when I became Dean, I recognized 21 that I didn't know very much about admissions, that I also 22 knew that it was a critical part of the, of the law school, 23 that I developed some viewpoints about how admissions 24 should be done and had changed. And that over the course 25 of three or so years, I then realized it was time to really 68 1/18/01 - BENCH TRIAL - VOLUME III 1 focus on admissions as policy. 2 Q. And did you have an interest in the, from, say, 1987 3 when you first became Dean up until the time that Assistant 4 Dean Stillwagon left in 1990, did you have an interest at 5 that time in how the law school went about assembling the 6 critical mass of minority students? 7 A. Of course I had an interest. 8 Q. Okay. And I think you indicated that you would have 9 some conversations from time to time with Assistant Dean 10 Stillwagon about how the admissions process worked? 11 A. Yes. 12 Q. Given your interest and the issue of minority 13 admissions, did you have some conversations with Assistant 14 Dean Stillwagon about how exactly it was minority 15 admissions were the focus of the admissions office? 16 A. I don't recall any discussions in detail about how it 17 worked. 18 Q. You were generally familiar with the fact that there 19 was something called the special admissions program, 20 correct? 21 A. That is correct. 22 Q. You were generally aware of that during Assistant Dean 23 Stillwagon's tenure, correct? 24 A. That's correct. 25 Q. Did you ever have a conversation where you out of 69 1/18/01 - BENCH TRIAL - VOLUME III 1 curiosity asked Assistant Dean Stillwagon what the details 2 of the special admissions program were? 3 A. As I said, I don't recall any discussions of a 4 detailed description of how admissions worked in that 5 sense. 6 Q. Do you think you asked Assistant Dean Stillwagon how 7 the special admissions program worked at any time during 8 the three years that he was Assistant Dean during your 9 tenure? 10 A. I don't recall. 11 Q. Do you recall as, once you became Dean at the Law 12 School, did you undertake some investigation to ascertain 13 whether there were any faculty resolutions or policies with 14 respect to how minority admissions were handled at the law 15 school? 16 A. I'm sorry, could you restate the question please? 17 Q. Sure. Once you became the Dean of the Law School, did 18 you undertake any efforts to investigate what faculty 19 mandates or policies there might be with respect to how 20 minority admissions were handled at the law school? 21 A. I don't recall doing that. 22 Q. Well, given your interest in that subject, isn't that 23 one of the things you took an interest in investigating? 24 A. I'm sorry. I'm just trying to say to you that I had a 25 general familiarity with how admissions worked. And, and 70 1/18/01 - BENCH TRIAL - VOLUME III 1 that applied as well to how racial and ethnic diversity 2 worked under this label of special admissions. 3 Q. I think you testified, correct me if I'm wrong, that 4 you did, over the course of the three years that Assistant 5 Dean Stillwagon was there, you developed some concerns 6 about the admissions office or admissions policies? 7 A. I did develop concerns. 8 Q. And did you develop any specific concerns with respect 9 to the way in which race was factored into the admissions 10 process decision making? 11 A. I developed what I knew. What I came to know over my 12 early years as dean was that this was s