UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BARBARA GRUTTER, for herself and all others similarly situated, Civil Action Plaintiff, No. 97-CV-75928 -vs- LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendants, and KIMBERLY JAMES, ET AL., Intervening Defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _/ VOLUME 5 BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN United States District Judge 238 U.S. Courthouse & Federal Building 231 Lafayette Boulevard West Detroit, Michigan MONDAY, JANUARY 22ND, 2001 APPEARANCES: FOR PLAINTIFF: Kirk O. Kolbo, Esq. R. Lawrence Purdy, Esq. GRUTTER -vs- BOLLINGER, ET AL 2 1 2 APPEARANCES (CONTINUING) 3 FOR DEFENDANTS: John Payton, Esq. 4 Craig Goldblatt, Esq. On behalf of Defendants 5 Bollinger, et al. 6 George B. Washington, Esq. 7 Miranda K. S. Massie, Esq. On behalf of Intervening 8 Defendants 9 10 COURT REPORTER: Joan L. Morgan, CSR Official Court Reporter 11 12 13 14 Proceedings recorded by mechanical stenography. Transcript produced by computer-assisted 15 transcription. 16 17 18 19 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL 3 1 2 3 I N D E X _ _ _ _ _ 4 5 WITNESS: Page _______ ____ 6 WITNESSES PRESENTED ON BEHALF OF DEFENDANT 7 KENT SYVERUD 8 Direct Examination by Mr. Kessler 7 9 Cross-Examination by Mr. Purdy 55 Redirect Examination by Mr. Kessler 80 10 JEFFREY LEHMAN 11 Direct Examination by Mr. Payton 88 12 Cross-Examination by Ms. Massie 156 Cross-Examination by Mr. Purdy 168 13 14 15 16 E X H I B I T S _ _ _ _ _ _ _ _ 17 18 MARKED RECEIVED ______ ________ 19 Exhibit Number 153-155 22 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL 4 1 Detroit, Michigan 2 Monday, January 22, 2001 3 9:00 a.m. 4 _ _ _ 5 (Court in session.) 6 THE COURT: You may be seated. Good 7 morning all. 8 MS. MASSIE: Good morning. 9 THE COURT: Good morning. 10 MS. MASSIE: Your Honor, I have got a 11 couple of scheduling things for you. 12 THE COURT: Good, I was going to talk 13 to you guys about scheduling. 14 MS. MASSIE: I have already talked to 15 both Mr. Kolbo and Mr. Payton about all of the 16 above, all of what follows, I should say. 17 THE COURT: Great. 18 MS. MASSIE: Tomorrow we're looking 19 at Gary Orfield and two students Agnes Aleobua and 20 Erika Dowdell. On Wednesday we're looking at 21 John Hope Franklin and Jay Rosner. 22 And, Judge, we have had a great deal 23 of difficulty with our out of town people setting up 24 a full day on Thursday. 25 THE COURT: You want to go Thursday GRUTTER -vs- BOLLINGER, ET AL 5 1 off and start it when we get back? 2 MS. MASSIE: That would be great. 3 THE COURT: It's up to you guys. I 4 was going to ask you about Thursday, maybe breaking 5 a little bit early, you know, like 4:00. I mean 6 it's up to you. 7 I mean things are moving so nicely 8 and so forth. That's okay with everybody, we'll 9 take Thursday off and then we'll reconvene on I 10 think it's the 6th. Is that what it is? 11 MS. MASSIE: Yes, the 6th. 12 THE COURT: Good, no problem. 13 MS. MASSIE: Fantastic, thanks a lot. 14 THE COURT: Okay. 15 MS. MASSIE: Two other quick things. 16 First, we'll have the demonstrative exhibit which 17 will all be based on things that are already in the 18 record for Professor Orfield to both the Defendant 19 and the Plaintiff by later on today at some point. 20 And on tomorrow, this hasn't been put 21 on the record yet, but there's been some talk about 22 sequestering fact witnesses. 23 I would like to make some 24 designations for the organizations I represent, and 25 I also had a special request on behalf of one of the GRUTTER -vs- BOLLINGER, ET AL 6 1 law students who would like to come. She probably 2 won't be called as a witness, she would like to 3 come. 4 I didn't have a chance to raise this 5 to counsel before you took the bench. Maybe we can 6 talk about it after the break. 7 But there's a fact witness who, I 8 think, will be called, or who could conceivably be 9 called who is not an organizational representative 10 and who would like to be able to attend the 11 proceedings tomorrow. 12 THE COURT: Why don't you talk about 13 it, I don't think that that would be a problem. I 14 don't think anybody should have any problems. The 15 fact witnesses here are such that--it's not like in 16 a criminal case where fact witnesses are subjected 17 to lots of other kind of things. 18 So talk about it. If there's any 19 difficulty, let me know. But I don't think there 20 should be a problem for any fact witness who really 21 wants to sit here. 22 But there may be a specific reason 23 why one counsel would note why they shouldn't. But 24 other than that, I don't think that's a problem. 25 MS. MASSIE: Thanks. GRUTTER -vs- BOLLINGER, ET AL 7 1 MR. KESSLER: With that the law 2 school calls Kent Syverud as its next witness. 3 THE COURT: Good. It's good to see 4 what he looks like, we have spoke on the phone so 5 many times. 6 I have disclosed that I have sent you 7 many, not many, but a few cases to mediate for us 8 and what a great job you have done. But I don't 9 think we have ever really met. 10 KENT SYVERUD, 11 was thereupon called as a witness herein and, after 12 having been first duly sworn to tell the truth, the 13 whole truth and nothing but the truth, was examined 14 and testified as follows: 15 DIRECT EXAMINATION 16 BY MR. KESSLER: 17 Q. Good morning, Dean Syverud. 18 A. Good morning. 19 Q. Would you tell us your full name for the record, 20 please? 21 A. Kent Syverud. 22 Q. Where do you work? 23 A. I work at the Vanderbilt University Law School in 24 Nashville, Tennessee. 25 Q. And what position do you hold at Vanderbilt Law GRUTTER -vs- BOLLINGER, ET AL 8 1 School? 2 A. I'm the dean of the law school and I am a professor 3 of law. 4 Q. What are your responsibilities as dean and as a 5 professor of law? 6 A. I teach courses, I teach civil procedure negotiation 7 and some other courses. I am the dean of the law 8 school, which means responsible for stewarding all 9 the administration of the school and the faculty. 10 And also have some responsibilities in the 11 university at large. 12 Q. Do you have responsibilities with law school alumni? 13 A. Yes. 14 Q. What are those, just very briefly? 15 A. Mostly responsible for relations with the alumni, 16 including fund raising and strategic planning for 17 the school. 18 Q. How many students does the Vanderbilt Law School 19 have? 20 A. 550. 21 Q. How many employees? 22 A. About 125. 23 Q. Are you involved in admissions to any degree? 24 A. The dean of Admissions report to me. 25 Q. Is it typical for a law school dean to carry the GRUTTER -vs- BOLLINGER, ET AL 9 1 teaching load that you do? 2 A. Yes. 3 Q. And why have you chosen to do that? 4 A. Teaching is the most important thing I do and I 5 enjoy it. 6 Q. Why don't you tell us about your educational 7 background beginning with college? 8 A. I attended Georgetown University in Washington, D.C. 9 and graduated in 1977 with a degree in foreign 10 service from a foreign service school. 11 I then attended the University of 12 Michigan both for law school and for graduate school 13 in economics. I got my law degree at Michigan in 14 1981, and my graduate degree in economics and 15 master's degree in 1983. 16 Q. Were you on the Law Review at Michigan? 17 A. Yes, I was. 18 Q. What position did you have? 19 A. I was the entering chief. 20 Q. Did you earn any honors or awards while you were a 21 student at Michigan Law School? 22 A. Yes, I did. 23 Q. Tell us those, please? 24 A. I was chosen for the Henry M. Bates Award, which is 25 award for the outstanding graduate in the senior GRUTTER -vs- BOLLINGER, ET AL 10 1 class. I won various awards in courses for having 2 the best performance in various courses. 3 Q. How does one earn the Henry M. Bates award? 4 A. I believe it's voted by the faculty. 5 Q. And did you graduate magnum cum laude for the 6 Michigan Law School as well? 7 A. I did. 8 Q. Now, you made reference to being in the graduate 9 school at Michigan in economics, tell us about that? 10 A. I was in the joint degree program in law and 11 economic at Michigan, and I finished my master's. 12 Started during law school, and finished it after I 13 graduated and emphasized public finance and 14 industrialization organization. 15 Q. Just to be clear, you then were working on a 16 master's degree in economics while you were in law 17 school? 18 A. Yes. 19 Q. Some would think of that as being at glutton for 20 punishment. 21 A. I enjoined it. 22 Q. Let's talk about your employment after you completed 23 your formal education. What did you do after you 24 graduated from Michigan and you earned your law 25 degree? GRUTTER -vs- BOLLINGER, ET AL 11 1 A. I became a law clerk for Judge Overdorf in the 2 United States District Court for the District of 3 Columbia from '83 to '84. 4 And then I was a law clerk at the 5 Supreme Court of the United States for Justice 6 Sandra Day O'Connor. 7 And then I stayed home with my first 8 born child for a while, and then I started practice 9 at Wilmer, Cutler and Pickering in Washington, D.C. 10 for two years. 11 And in 1987, left Wilmer Cutler to 12 become a faculty member at Michigan Law School. 13 Q. What attracted you to teaching law? 14 A. After I graduated from law school and before I 15 graduated from graduate school, I worked as a legal 16 writing instructor for a year part-time at Michigan 17 and enjoyed it a great deal. 18 And I had professor at Michigan 19 Alan Smith who kept pestering me and telling me I 20 would be a better teacher than I was a lawyer. 21 Q. And he persuaded you that he was right? 22 A. He did. 23 Q. When you got to Michigan and started teaching, what 24 courses did you search over that ten year period? 25 A. I always taught civil procedure to first year GRUTTER -vs- BOLLINGER, ET AL 12 1 students. I taught complex litigation. I taught 2 insurance law fairly consistently. I taught 3 negotiation in drafting. 4 And occasional short courses in 5 ethics, professional responsibility, judging law, in 6 fact, and different subjects each year. 7 Q. Did you hold any administrative positions at any of 8 the time that you were at the Michigan Law School? 9 A. Well, the last two years I was on the faculty of 10 Michigan, I was the associate dean for Academic 11 Affairs. 12 Q. What were your responsibilities as associate dean 13 for Academic Affairs? 14 A. They were whatever responsibilities were assigned by 15 the dean. It was essentially a position as chief 16 academic officer under the dean. And include some 17 responsibility for curriculum, some for teaching and 18 quality of teaching. 19 It included course assignments in 20 dealing with most problems that came up involving 21 faculty and students. Relations between faculty and 22 students. 23 Q. During that time did you have occasion to work with 24 new and even experienced teachers on the quality of 25 teaching? GRUTTER -vs- BOLLINGER, ET AL 13 1 A. At the law school? 2 Q. Yes. 3 A. Yes. If there was a faculty member in trouble with 4 teaching for various reasons, I usually dealt with 5 it. And I was the law school's representative on 6 the board of the Center for Research Learning and 7 Teaching. 8 Q. Why were you willing to take on the administrative 9 position of assistant dean? 10 A. I cared about the school a lot, it paid more than a 11 regular faculty member got. And I figured given my 12 compulsiveness on some of the subjects involved in, 13 particularly the teaching side of Academic Affairs, 14 I would end up doing it whether I had the title or 15 not. So I wanted to do it. 16 Q. Now, you have told us that you have been employed 17 years ago at Wilmer, Cutler & Pickering, and that 18 you were ten years employed at the University of 19 Michigan Law School, do those prior associations 20 affect to any degree at all, your ability to offer 21 completely candid and honest testimony in this case? 22 A. I don't think so. 23 Q. Is there any doubt in your mind about that? 24 A. No. 25 Q. Why did you go on to Vanderbilt, why did you leave GRUTTER -vs- BOLLINGER, ET AL 14 1 Michigan and go there? 2 A. I was offered the deanship at Vanderbilt and had not 3 planned on moving from Ann Arbor ever. It seemed 4 like an interesting opportunity for me and for my 5 whole family. And it's a smaller school and seemed 6 attractive for that reason. 7 Q. Have you taught at any law schools other than 8 Michigan and Vanderbilt? 9 A. Yes. 10 Q. Tell us about your other law school teaching? 11 A. I have taught as a visiting faculty member at the 12 University of Pennsylvania Law School in the spring 13 term of 1997, insurance law and negotiation in 14 drafting. 15 I have been a visiting professor at 16 the University of Tokyo Law School for the May term 17 in either 1992 or 1993. 18 I have taught most summers in the 19 last ten years at various universities and centers 20 in Germany. 21 Q. Now, how did you happen to do the teaching at Penn? 22 A. The dean of the Penn Law School called and I made a 23 visit. 24 Q. How did you wind up teaching at the University of 25 Tokyo? GRUTTER -vs- BOLLINGER, ET AL 15 1 A. The Michigan Law School and the Tokyo faculty of law 2 and politics have an exchange relationship, whereby 3 professors go back and forth. And dean at Tokyo and 4 the dean at Michigan arranged that and asked me to 5 teach there one summer. 6 Q. And how did you happen to teach almost every summer 7 over the past ten years in Germany? 8 A. That is a program arranged by the German American 9 Bar Association in Germany and various universities 10 and a foundation in Germany. 11 And its always got a stronger 12 affiliation with a particular professor who is on 13 the Michigan faculty who asked me to come one of the 14 early years, and I went and taught American civil 15 process. And then they just asking me to come back. 16 Q. They liked what you did? 17 A. Yes. 18 Q. Have you ever received any awards for teaching law? 19 A. Yes. 20 Q. Tell us about those, if you would? 21 A. There's an award for teaching voted by the student 22 body at Michigan called the Al Hartwright 23 outstanding teacher award. That's named after 24 Al Hartwright who was a great tax teacher and 25 professor at Michigan, and I was awarded that twice GRUTTER -vs- BOLLINGER, ET AL 16 1 while I was teaching at Michigan. 2 And in my first year at Vanderbilt, 3 built there's a similar award, the Paul Hartman 4 Award, outstanding teaching award that the student 5 body votes there. And I was awarded my first year 6 teaching at Vanderbilt. 7 Q. Have you published any articles on teaching law? 8 A. Yes. 9 Q. Tell us about that? 10 A. I have one article entitled Taking Students 11 Seriously, that's a guide for new law teachers that 12 is published in the Journal of Legal Education. 13 I have written an annotated 14 bibliography for law teachers that's been put out as 15 a pamphlet and its materials by the American 16 Association of Law Schools. 17 Q. What is contained in the bibliography? 18 A. It's an annotated survey of books and articles about 19 law school teaching back 50 to a hundred years, not 20 much back that far. But what the subject matter is 21 and commentary on it, and its helpfulness. 22 Q. And you made reference to the American Association 23 of Law Schools, just explain to Judge Friedman and 24 the rest of us what that is? 25 A. It's a professional association of law schools, GRUTTER -vs- BOLLINGER, ET AL 17 1 about 180 American law schools. It's an 2 organization that organizes the annual conference of 3 law professors and that oversees professional 4 development programs for law professors. 5 Q. What does the standing of the American Association 6 of Law Schools say in the academic community 7 nationally? 8 A. To the extent there's an academic association for 9 law professors, it is the equivalent of the American 10 Economic Association for economists. 11 Q. Changing gears just a little bit. Have you served 12 as editor of any publications that deal with the 13 teaching of law? 14 A. Yes. 15 Q. What have you done? 16 A. I'm the editor of, co-editor with a colleague of the 17 Journal of Legal Education. 18 Q. And who publishes that? 19 A. That is the professional journal of the American 20 Association of Law Schools. 21 Q. About how many manuscripts do you have to read in a 22 year to do your work properly as editor? 23 A. About 200. 24 Q. Is it likely that there are many manuscripts that 25 are developed concerning the teaching of law that GRUTTER -vs- BOLLINGER, ET AL 18 1 you wouldn't reach in the course of a year? 2 A. No. There would be very few. 3 Q. Have you made any presentations around the country 4 about how to teach law? 5 A. Yes. 6 Q. What have you done in that regard? 7 A. I for ten years almost every year, I taught at the 8 New Law Teachers Conference, which is an annual 9 conference for people entering the legal teaching 10 profession in various capacities. 11 Giving an opening address, closing 12 address, being a discussion leader or a lecturer. I 13 have taught experienced law teachers at the 14 occasional conferences that are held for experienced 15 law teachers explicitly on law teaching. Of which 16 there's another one coming this summer which I'm 17 speaking at. 18 And I have spoken, when requested, to 19 various law faculties and non-law faculties in the 20 United States. 21 Q. Tell us some the law faculties that you have 22 addressed? 23 A. I led the faculty retreat on law teaching at the 24 Notre Dame Law School, I think that was in 1998. 25 I've been asked by Wake Forest University Law School GRUTTER -vs- BOLLINGER, ET AL 19 1 to lead their retreat and talk to them about law 2 teaching, in the future of law teaching next month. 3 I have spoken to the University of 4 South Dakota university faculty, including the law 5 faculty on teaching. I think that's all I can 6 recall. 7 Q. That's good. Are you working on a book? 8 A. Yes. 9 Q. What is the book? 10 A. Well, I'm working on two books. One is a guide book 11 for insurance defense counsel. And one is a book 12 entitled Teaching Across a Career. 13 Q. And what is the latter book about? 14 A. It's a book about the fact that most advice for 15 teachers is less helpful for the experienced 16 teachers, because it assumes that teaching is 17 something you learn once like riding a bicycle and 18 then you've got it and never need to change or grow. 19 Q. And you find that it isn't like learning to ride a 20 bicycle? 21 A. No, I don't find it like riding a bicycle. 22 Q. What is it like? 23 A. I teach civil procedure, it's like preparing for a 24 different summary judgment motion everyday in a 25 different area of substantive law. GRUTTER -vs- BOLLINGER, ET AL 20 1 Q. Well, that would be challenging? 2 A. Yes. 3 Q. Are you doing some work with the Carnegie Foundation 4 as we speak? 5 A. Yes. 6 Q. Would you tell us what you're doing with the 7 Carnegie gee foundation? 8 A. The Carnegie Foundation for the advancement of 9 teaching is a nonprofit organization in the United 10 States, that's the most rigorous in paying attention 11 to teaching methods and their improvements, and has 12 been that way for many years. 13 It has a project on teaching across 14 the professions, which at the moment is attempting 15 to identify the state of the art of teaching in 16 profession schools, law, medicine, business, 17 engineering and divinity. 18 And their first year of their study 19 last year was law schools. And I worked with the 20 professionals working on that study including Judith 21 Wagner in helping them identify a cross section of 22 American law schools to visit for a three day 23 periods each. 24 And they visited Vanderbilt as part 25 of that, and spent four days evaluating teaching at GRUTTER -vs- BOLLINGER, ET AL 21 1 Vanderbilt Law School. 2 Q. Is this project a result in a report? 3 A. Yes, it is. 4 Q. And when is that expected? 5 A. It was expected several months ago, it has not come 6 out yet. I'm not in charge or responsible for 7 writing the report. 8 Q. So the answer is anytime now? 9 A. Yes, any week now. 10 Q. Are you involved in something called the Advisory 11 Board for the Center of Teaching at Vanderbilt? 12 A. Yes. 13 Q. What is that? 14 A. Vanderbilt has an education school, Peabody's 15 College which is very good and separate from that. 16 But connected to it is a center for teaching which 17 focuses across the university on the quality of 18 teaching in the various schools of the university. 19 And it put on programs, professional 20 development programs for faculty at Vanderbilt and 21 graduate students. And it also addresses problems 22 of substandard performance and evaluation of 23 teaching. 24 Q. Now, you were asked to serve as an expert witness in 25 this case on behalf of the Michigan Law School, is GRUTTER -vs- BOLLINGER, ET AL 22 1 that right? 2 A. In 1997, I think, yes. 3 Q. And did you prepare expert reports in connection 4 with your work? 5 A. Yes. 6 Q. I think you have documents that have been marked 7 Exhibits 153 through 155 right there in the witness 8 box, am I right about that? 9 A. Yes. 10 Q. Tell me what Exhibit 153 is? 11 A. It is the expert, the first expert report I wrote. 12 Q. And what date does it bear? 13 A. December 15, 1998. 14 Q. What is Exhibit 154? 15 A. It is the first supplemental expert report I wrote. 16 Q. What is the date of Exhibit 154? 17 A. February 25, 2000. 18 Q. And what is Exhibit 155? 19 A. It is the second supplemental expert report I wrote. 20 MR. KESSLER: Your Honor, we offer 21 all three exhibits at this time. 22 MR. PURDY: Your Honor, we would 23 object on relevance grounds. 24 THE COURT: You've got to speak up, 25 Mr. Purdy. GRUTTER -vs- BOLLINGER, ET AL 23 1 MR. PURDY: I apologize. We will 2 object on relevance ground for the reasons we set 3 forth in our earlier motion. Which we believe are 4 directed precisely on the issue of diversity, which 5 is not a factual issue before the court. We object 6 on relevance. 7 MR. KESSLER: Well, our position is 8 just the same, your Honor, as we will develop this 9 morning. These reports concern the issue of 10 critical mass in particular, which has been a 11 subject of constant inquiry by the Plaintiff 12 throughout the trial, and an issue of constant 13 inquiry by the law school. 14 THE COURT: Well, we call the dean, 15 we had some discussion and the defense had indicated 16 they were not calling him as expert, or as the 17 witness in the issue of diversity and that's why 18 we're here today. 19 I'll admit them for the same reason I 20 have admitted a lot of other things. First of all, 21 I have read them all because they have all been 22 attached to the motions for summary judgment in this 23 matter, so there's no secret what they have to say. 24 The relevance, I think that much of 25 it is not relevant to the issues that we're trying GRUTTER -vs- BOLLINGER, ET AL 24 1 here today. But it's just as easy to admit them and 2 give them weight if they need some. 3 MR. KESSLER: Thank you. 4 BY MR. KESSLER: 5 Q. Are you being compensated for your services as an 6 expert in the case? 7 A. I am being reimbursed for my expenses of coming out 8 here. 9 Q. Are you being paid a fee? 10 A. No. 11 Q. Have you testified as an expert in any other cases? 12 A. Yes, I have. 13 Q. Just generally, what have you been involved in? 14 A. All of them have been insurance cases, mostly 15 insurance coverage cases. Particularly concerning 16 insurance coverage of various tort liabilities. 17 Q. And about how many times have you testified as an 18 expert? 19 A. I think I have been deposed eight times to ten times 20 in fourteen years of teaching. And I testified in 21 court three or four times. 22 Q. Now, Judge Friedman has made reference to this 23 previously and again this morning. 24 Have you served as a court appointed 25 expert in the past? GRUTTER -vs- BOLLINGER, ET AL 25 1 A. Yes, I have. 2 Q. Tell us what you have done, just in a general way? 3 A. In Tennessee I have been appointed as a mediator in 4 insurance coverage disputes. In Michigan I have 5 been appointed, including in this court, to--I'm not 6 sure if it's as a mediator or court appointed 7 expert, to attempt to reach settlement of insurance 8 dispute and reinsurance disputes between insurance 9 companies and insurers. 10 Q. Insurance law is one of your substantive areas of 11 expertise? 12 A. Yes, it is. 13 Q. What is the subject of your original expert report 14 in this case? 15 A. It was prepared two years ago and it was on the 16 effect of having meaningful numbers of minority 17 students on the quality of the pedagogy in the law 18 school. 19 Q. What was your general conclusion? 20 A. As the last paragraph of the report says it was--my 21 general conclusion is, still is my conclusion is 22 that a law school without significant representation 23 of minority students in the student body, will 24 provide a significantly poorer education than one 25 that is blessed by such representation. GRUTTER -vs- BOLLINGER, ET AL 26 1 And that in particular lawyers 2 trained in racially homogeneous law schools will be 3 ill equipped to serve the functions that the best 4 lawyers have to serve in society. 5 MR. PURDY: Excuse me, your Honor, I 6 don't want to stand up and be interrupted, but may I 7 just have a standing objection to any testimony that 8 relates to the benefits of diversity. 9 Because as we said, we're not 10 contesting that issue, and I believe what he just 11 recited is precisely on that subject. 12 THE COURT: You have a standing 13 objection. And, Mr. Kessler, I'm going to give you 14 some leeway because I think it's necessary, but try 15 to stick to the issues. 16 MR. KESSLER: I appreciate that. 17 What is going to be developed here is that-- 18 THE COURT: That's fine. I'm going 19 to give you some leeway. 20 MR. KESSLER: Fine, okay. 21 BY MR. KESSLER: 22 Q. The first supplemental report, what was that about? 23 A. That was the one a year ago, it was about--there was 24 empirical research that occurred subsequent to my 25 first report on faculty and student views on the GRUTTER -vs- BOLLINGER, ET AL 27 1 effect of significant numbers of minority students 2 in the law school classroom. And it was how that 3 new research effected my earlier opinions. 4 Q. And how did it effect your earlier opinion? 5 A. It confirmed some of them. 6 Q. What about the second supplemental report, the one 7 that you prepared and we filed recently, what was 8 that about? 9 A. That was in the last two weeks, and that was you 10 provided me the Raudenbush study which was much more 11 specifically concerned with the admissions policies 12 at the University of Michigan Law School, and the 13 effect of those policies on racial composition of 14 the class in various settings. 15 And the supplemental report is how 16 that would have effected or did effect my original 17 opinions. 18 Q. What was the overall conclusion that you reached in 19 this second supplemental report? 20 A. I concluded that the positive effects of a racially 21 heterogeneous class that I described in any original 22 report, would be achieved under the existing 23 admissions policy at the University of Michigan, and 24 would be unlikely to be achieved under an admissions 25 policy that did not consider race as a factor in GRUTTER -vs- BOLLINGER, ET AL 28 1 admissions. 2 Q. Let's talk now about the basis of your overall 3 opinions. Tell us what those basis are? 4 A. Well, I have taught law for fourteen years every 5 semester pretty much in various settings. And when 6 I say various settings, I mean not just in different 7 countries or different law schools, but in settings 8 that are small classes, very large classes, classes 9 that are racially heterogenous. Classes that are 10 not diverse in other senses. 11 With no old people, for example, or 12 older people. Or classes with all people of one 13 ethnic background, particularly in Germany. 14 And I have talked to many of the law 15 professors over the years about how the diversity in 16 the class effects the dynamic in the Socratic 17 classroom and in the classroom teaching in the skill 18 setting, particularly negotiation. 19 And as I said, I have pretty much 20 read everything that's been written on law teaching 21 in the last 50 to a hundred years. 22 And so my opinions are based on 23 everything that I have done and everything that I 24 have read having to do with the law classroom. 25 Q. Are your opinions also based on part in law classes GRUTTER -vs- BOLLINGER, ET AL 29 1 that you have observed, but not yourself taught? 2 A. Yes. 3 Q. How has that come about? 4 A. I have watched a lot of law classes taught, most 5 recently as an accreditor of law schools. And part 6 of the accreditation process includes a visit to the 7 school and an obligation to attend a cross section 8 of classes being taught in the school. 9 And so in the last year I've done the 10 accreditation visits for the University of Oregon 11 Law School, and the George Washington University Law 12 School. And in each school attended a large number 13 of classes across the curriculum. 14 Q. I have attended a lot of classes that's part of the 15 peer review or the tenure review process, or renewal 16 process for faculty at each of the institutions I 17 have taught at, and including when I was at the 18 University of Pennsylvania as a visitor. 19 And occasionally when I'm giving a 20 paper or talking in other law schools, I attend 21 classes as part of that. 22 Q. Do you have a reliable estimate of the number of 23 students that you have taught in the last 14 years? 24 A. Yes. 25 Q. Tell us what that is? GRUTTER -vs- BOLLINGER, ET AL 30 1 A. I have taught about 2500 students, law students in 2 the United States. And another 500 in Germany. 3 Q. Now, you indicated that you have been involved in 4 classes both as a teacher and as an observer that 5 had various levels of, not only general diversity, 6 but racial and ethnic diversity, is that right? 7 A. Yes. 8 Q. You have taught classes where there have been 9 virtually no minority students? 10 A. I've taught students in which there are no minority 11 students. 12 Q. And where there have been very limited numbers of 13 minority students? 14 A. Yes. 15 Q. And also where, in your judgment, there have been 16 meaningful numbers of minority students, is that 17 right? 18 A. Yes. 19 Q. And these differing diversity levels have, at least, 20 in times involved teaching the same subject matter, 21 is that right? 22 A. That's correct. 23 Q. What has the subject matter been? 24 A. Civil procedure, insurance and negotiation. 25 MR. KESSLER: Your Honor, at this GRUTTER -vs- BOLLINGER, ET AL 31 1 time we offer Dean Syverud as an expert on legal 2 education. 3 MR. PURDY: Your Honor, we have no 4 objection and do not doubt Dean Syverud's expertise 5 on legal education. 6 But I think just from what we have 7 heard, again, this is going to a subject that 8 everything we've heard this morning, going to a 9 subject that has nothing to do with the issue that's 10 before this court. 11 THE COURT: It appears that's 12 correct, Mr. Kessler. And again, I certainly 13 believe that he's an expert in that area, but I'm 14 not sure what relevance that area has. But I'll 15 give it a little-- 16 MR. KESSLER: (Interposing) We're 17 getting right to the heart of it. 18 THE COURT: Get right to the heart of 19 it. 20 MR. KESSLER: This is background that 21 I think the Court needed-- 22 THE COURT: (Interposing) Diversity 23 isn't the issue here. 24 MR. KESSLER: Right. 25 GRUTTER -vs- BOLLINGER, ET AL 32 1 BY MR. KESSLER: 2 Q. We're going to talk now about critical mass, 3 Dean Syverud, and in that context I want to read to 4 you from Exhibit 4. Exhibit 4 is the 1992 Michigan 5 Law School policy that is being challenged here. 6 At the bottom of page nine of that 7 policy of Exhibit 4, it reads, "The second sort of 8 justification for admitting students with indices 9 relatively far from the upper right-hand corner, is 10 that this may help achieve that diversity which has 11 the potential to enrich everyone's education and 12 thus make a law school stronger than the sum of its 13 parts. 14 In particular we seek to admit 15 students with distinctive prospectives and 16 experiences, as well as students who are 17 particularly likely to assume the kinds of 18 leadership roles in the bar, and make the kinds of 19 contributions to society discussed in the 20 introduction of this report. 21 We reiterate, however, that no 22 student should be admitted unless his or her file as 23 a whole leads us to expect him or her to do well 24 enough to graduate without serious academic 25 problems." GRUTTER -vs- BOLLINGER, ET AL 33 1 And then on page twelve of Exhibit 4 2 continuing with the quote. "There is, however, a 3 commitment to one particular type of diversity that 4 the law school has long had and which should 5 continues. 6 This is a commitment to racial and 7 ethnic diversity with special reference to the 8 inclusion of students from groups which have been 9 historically discriminated against like African 10 Americans, Hispanics and Native Americans, who 11 without this commitment might not be represented in 12 our student body in meaningful numbers. 13 These students are particularly 14 likely to have experiences and prospectives of 15 special importance to our mission. 16 Over the past two decades, the law 17 school has made special efforts to increase the 18 numbers of such students in the school. 19 We believe that the racial and ethnic 20 diversity that has resulted as made the University 21 of Michigan Law School a better law school than it 22 could possibly have been otherwise. 23 By enrolling a "critical mass" of 24 minority students, we have ensured their ability to 25 make unique contributions to the character of the GRUTTER -vs- BOLLINGER, ET AL 34 1 law school, the policies embodied in this document 2 should ensure that those contributions continue in 3 the future." 4 Do you see that language? 5 A. Yes. 6 Q. Were you on the University of Michigan Law School 7 faculty when this policy was adopted in 1992? 8 A. Yes. 9 Q. Did you vote on whether or not the policy should be 10 adopted? 11 A. Yes. 12 Q. How did you vote? 13 A. I voted for it. 14 Q. Did you believe that you understood the policy when 15 it was adopted in 1992? 16 A. Yes. 17 Q. What was your general understanding of the term 18 critical mass as used in the policy? 19 A. My general understanding was it meant that there 20 would be meaningful numbers of minority students, 21 and particularly African American and Hispanic 22 students, so as to achieve pedagogical objectives in 23 the classroom. 24 Q. Now, I understand, and we're not going to dwell on 25 this, that initially prior to this policy at least, GRUTTER -vs- BOLLINGER, ET AL 35 1 you were skeptical about admissions policies like 2 Michigan's that considered race. 3 Did the inclusion of the reference to 4 critical mass in the 1992 policy help you change 5 your view? 6 A. Yes. 7 Q. Tell us in what way critical mass effected you're 8 thinking? 9 A. I mean I have to say that I didn't understand the 10 word critical mass to have a huge significance 11 separate from its reference, the back reference to 12 meaningful numbers in the paragraph above. 13 And it meant to me, and still means 14 to me, that something different than attempting 15 through social engineering to change society, which 16 was not a reason for me to support or believe in 17 this document. 18 It meant, instead, a direct 19 relationship for me to what happens in the law 20 school classroom, and whether I can make the law 21 school classroom work as best as it can. 22 And critical mass for me, or 23 meaningful numbers means that the dynamic in the law 24 school classroom is different depending on the 25 degree to which there are meaningful numbers of GRUTTER -vs- BOLLINGER, ET AL 36 1 minority students in the classes I teach. 2 Q. Do some of the conclusions that you have rendered as 3 an expert in this case, bear on the critical mass 4 question? 5 A. Some do. 6 Q. All right. Tell us just in a general way what those 7 conclusions are? 8 A. I mean my original report was prepared when--I 9 gather the issues in this case were different, and I 10 gather they have been narrowed and I haven't been 11 following all the legal developments in the case 12 closely, I apologize. 13 Q. Understood. 14 A. It's not covered extensively in Nashville, I'm happy 15 to say. So, you have told me a little bit in the 16 last 24 hours about what the issues in the case are 17 now. 18 And again, I would say that the 19 quoted critical mass phrase in the policy meant 20 little different to me at the time, than talking 21 about meaningful numbers of minority students in 22 various classroom settings that I teach in. 23 The critical mass or meaningful 24 numbers matters to my conclusion in this sense. I 25 teach and still teach in a very traditional Socratic GRUTTER -vs- BOLLINGER, ET AL 37 1 fashion, which involves I take the seating chart in 2 the class, I throw paper clips on it in front of the 3 students and I call on the students that the paper 4 clips fall on. 5 And I engage in a series of questions 6 and answers with the student, four to five students 7 most classes, based on the material assigned for 8 that day. 9 And my purpose in doing that is to 10 get a dialogue going in which the students question 11 deeply their assumptions and provoke other students 12 to see how many different angles there are in any 13 question that we address. 14 And the critical mass or meaningful 15 numbers issue is relevant to my conclusions, because 16 in my experience that dynamic is different within 17 the class among the students and between me and the 18 students, when the class is homogeneous. 19 When the class has a token minority 20 student or a token black student or to token 21 Hispanic student, and when there are enough minority 22 students, enough black students and enough Hispanic 23 students that there is a diversity of views and 24 experiences among the minority students, and among 25 the Hispanic and black students. GRUTTER -vs- BOLLINGER, ET AL 38 1 So, that everybody in the class 2 starts looking at people as individuals in their 3 views and experiences, instead of as races. 4 Q. Now, we're offering you today in large part to help 5 us all understand the concept of critical mass, and 6 yet I note that none of your reports uses that term, 7 why not? 8 A. I read this policy again for the first time in two 9 years yesterday. 10 Q. The law school policy? 11 A. The law school policy. And I hadn't until yesterday 12 viewed critical mass as having some meaning 13 independent of what I have just described. 14 As meaningful numbers of minority 15 students in the actual classroom settings that you 16 teach in. 17 Q. Were you writing about the concept of critical mass 18 in your reports? 19 A. In the sense I have described today as which--I mean 20 in the sense I have describe it in, are there enough 21 minority students in my class that they become 22 individuals rather than representatives of races in 23 the dialogue among students and with me. 24 Q. In your experience as an expert in legal education 25 in the various settings that you have described, do GRUTTER -vs- BOLLINGER, ET AL 39 1 you think that you can quantify in a specific way 2 what critical mass is? 3 A. No. 4 Q. Why not? 5 A. When you say critical mass or meaningful numbers of 6 minority students, what the meaningful part is to me 7 is, are there enough students say, for example, 8 African American students in a class such that each 9 of them, in fact, is and, in fact, acts freely to 10 express a diversity of views. 11 And to respond openly to the 12 questions I give, which are quite tense and 13 provocative at times. 14 And that number isn't the same number 15 or percentage in every class that I teach, it 16 depends in part on the individuals. 17 I have a class where an 18 individual--where it's enough to have one student, 19 because that one student is an extraordinary person, 20 but not many. 21 Q. If you can't quantify the term critical mass in a 22 reliable way, how do you know it when you have it? 23 A. I know when a class is working very well and when 24 it's flat from a lot of experience. And in my 25 experience law professors talk about precisely that, GRUTTER -vs- BOLLINGER, ET AL 40 1 year to year and class to class as things go on. 2 I know I have a critical mass of 3 students when in the dialogue I have with students 4 and they have with each other in the course of civil 5 procedure or negotiation or whatever I'm teaching, 6 over the course of the semester regardless of what 7 the issue is, people are speaking and reacting as 8 individuals. And often in very unexpected ways. 9 And it's just my experience that in a 10 class with one or two African American students, 11 that usually does not happen. 12 Instead usually, and again, it's my 13 experience, usually the African American students 14 are silent. Not that they never say anything when I 15 call on them, but they on numerous issues it's hard 16 because they don't want to be a spokes person for 17 their race. And in particular in some of the issues 18 I teach. 19 Q. If I'm understanding you correctly, you define 20 critical mass by the presence of certain dynamics 21 that you have seen as a law school professor, is 22 that fair? 23 A. Yes. 24 Q. Let's see if we can understand a little more clearly 25 what those dynamics are. You talk about students GRUTTER -vs- BOLLINGER, ET AL 41 1 feeling, at least, able to express themselves as 2 individuals, is that right? 3 A. Yes. 4 Q. Where critical mass is not present and there are 5 minorities present in the class, what tends to 6 happen if they're not silent? 7 A. Well, one or two things happens. One thing that 8 happens occasionally is that an African American or 9 a Hispanic student will express views on issues 10 raised by the facts of the cases that I'm teaching 11 that tend to be politically correct, expected views. 12 And it doesn't accomplish--when I'm 13 teaching particularly first year students, what I'm 14 trying to teach them is that they don't know what 15 people think in advance without asking and 16 listening. 17 Because law students are terrible 18 listeners and they are very bad at projecting onto 19 someone views and experiences and knowledge without 20 first finding out. 21 And I'm trying to teach particularly 22 litigators to listen first. And so it's a problem 23 when I want to provoke through my questioning, 24 students to see how every issue I'm teaching has 25 different points of view, and there are very strong GRUTTER -vs- BOLLINGER, ET AL 42 1 arguments and currently often unexpected arguments. 2 And that people from different 3 backgrounds will come to the same fact settings and 4 have very unexpectedly different points of view on 5 it. And so that requires quite a bit of probing and 6 pushing of individual students. 7 If I have a token African American 8 student who is by the dynamic of the classroom 9 articulating what is perceived as what that person 10 is supposed to say on a particular issue, it doesn't 11 help with that lesson. 12 I'd like to get a diversity of views, 13 naturally by randomly calling on people among all 14 the students in the class, so that the lesson is 15 thought that people are individuals. 16 And the token minority student 17 problem for reasons I confess I don't fully 18 understand, doesn't produce that. 19 Q. How does the presence of critical mass or its 20 absence in the presence of tokenism impact the 21 majority students in the class, that is the 22 Caucasian students? 23 A. Well, as I said in my report, I think they get a 24 much poorer education as a result. 25 Q. Why? GRUTTER -vs- BOLLINGER, ET AL 43 1 A. Because they often--I mean my majority students, 2 when white students have a vast range of 3 experiences. And when I call on my white students, 4 that lesson is often inevitable that they'll get 5 over the course of a semester's experience with the 6 white students. 7 Because my white students are always 8 diversed, there's many of them and they have many 9 experiences. And I have interesting and tough cases 10 that I'm teaching on, so the lesson is obvious to 11 them not to make assumptions they know everything 12 about every white student in the class by the fact 13 that they're white. 14 They don't learn that lesson 15 necessarily about other minority students, if there 16 isn't a range of minority students present. 17 Q. In your experience, is there's a relationship in the 18 classroom between having a critical mass of minority 19 students, and superficial thinking on the students 20 part, I mean? 21 A. On some questions, yes. 22 Q. Explain that? 23 A. Well, there are issues having to done with race in 24 all of my courses, they're usually more subtle and 25 most colleagues I talk with think or express. GRUTTER -vs- BOLLINGER, ET AL 44 1 They come up with unexpected ways in 2 all the courses I teach, and race is an issue in 3 American law and kind of suffuses lots of things, to 4 much I think. But it's there and I have to teach it 5 the way it is. 6 It is still to teach cases where race 7 is an issue in the case, which it often is, 8 including in insurance law. And have everybody 9 talking about the issue as if they're Margaret Meade 10 studying the Samoans. 11 I don't know how else to describe 12 than that. Everybody is trying to project onto this 13 other group of people who aren't there. 14 Q. In a way that has an unreality to it, is that what 15 you're suggesting? 16 A. Yes. 17 Q. Is there a reason, you made reference a number of 18 times to the Socratic method and your use of the 19 Socratic method in classes. 20 Is there a reason why having a 21 critical mass is especially significant in 22 connection with the Socratic method? 23 A. Yes. 24 Q. Explain that, if you would? 25 A. I mean there's a lot of lawyers present, the point GRUTTER -vs- BOLLINGER, ET AL 45 1 of the Socratic method is that the students learn as 2 much from each other as they do from the teacher. 3 And from the dialectic of watching 4 how the students respond to questions and 5 interacting--they learn from each other answers as 6 much as from the questions the professor ask, or 7 lectures from the professor. 8 And so the strength of the Socratic 9 method in part trends on active preparation and 10 engagement involvement in the students in the class. 11 And the quality of their answers is 12 often a function of the range of knowledge and 13 experience and background that the students bring to 14 bear in answering those questions. 15 And one relevant set of experiences 16 is related to race. It's not the only relevant set 17 of experiences that I value in a Socratic classroom, 18 but it is one. 19 Q. You have been discussing critical mass in the 20 context of particular dynamics that you see in the 21 classroom, and you don't see those dynamics when 22 it's not there. 23 Can you give us just one example of 24 what you have seen that would be a very positive 25 indicator that critical mass is present, versus what GRUTTER -vs- BOLLINGER, ET AL 46 1 you would have seen had it been absent? 2 A. Yes. And we discussed this yesterday. I taught 3 insurance law most years at Michigan, and for many 4 years I taught insurance law, including a couple of 5 years, to extremely homogeneous classes racially. 6 And taught in particular an issue in 7 law and economics that concerns whether a tort law 8 should provide damages for pain and suffering in the 9 context of the death of a child when the parents are 10 suing. 11 And there's a decent literature on 12 that question from economists in law and economics 13 that not only suggest that that should not be the 14 case, because parents don't choose of their own 15 volition to go out and by life insurance on their 16 children. 17 In hence, since in private markets 18 they don't choose to do that. It would be odd for 19 the legal system to provide it mandatorily in a pain 20 and suffering context. 21 And I taught that literature as part 22 of a discussion day in insurance law for several 23 years. 24 And then one year I taught the same 25 body of reading, and I had an African American woman GRUTTER -vs- BOLLINGER, ET AL 47 1 in my class, and that was a year that I had a what 2 we've been calling a critical mass of African 3 American students in my class, five I think. 4 But I had an African American student 5 interrupt me during class and say, I don't 6 understand, people do buy life insurance on their 7 children. 8 And I had a dialogue with that 9 student about her experience with child life 10 insurance, which I embarrassingly confessed I did 11 not know existed at that point. 12 And it turned out, and I discovered 13 through subsequent work in talking with other 14 professors and with sociologists, that, in fact, the 15 majority of children in the United States are 16 covered by child life insurance policies. 17 But child life insurance is something 18 pretty much, and at that point, entirely obviously 19 unknown to affluent parents. 20 And it's heavily phenomenon currently 21 among African American parents and it is heavily 22 bought. 23 And, of course, you know, then I 24 embarrassingly researched it and discovered it went 25 back a hundred years and is a central feature of the GRUTTER -vs- BOLLINGER, ET AL 48 1 Tree Grows in Brooklyn and various other contexts. 2 But I didn't know that. I had no 3 experience with it. Child life insurance was 4 something I didn't think existed because law 5 economic scholarships said it didn't exist. 6 And it led me subsequently to change 7 my teaching materials to include writing on child 8 life insurance, and changed kind of how I looked at 9 life insurance in the classroom. 10 THE COURT: And you changed that only 11 because you had African American students in your 12 class? 13 A. It's hard to say. I mean it is an African American 14 student that bought it up. 15 THE COURT: That raised it. 16 A. So it's hard to say if that would have happened 17 otherwise. I don't know. 18 BY MR. KESSLER: 19 Q. But as a follow-up to the Court's question, do you 20 believe that based on your experience this African 21 American student would have felt comfortable 22 interrupting you and raising this point, that in 23 turn, promoted the discussion and the other changes 24 that you have described? 25 MR. PURDY: Your Honor, I have to GRUTTER -vs- BOLLINGER, ET AL 49 1 object. 2 THE COURT: Sustained. 3 BY MR. KESSLER: 4 Q. Can't a good law professor make up for the lack of 5 racial diversity in a classroom where there isn't a 6 critical mass present? 7 A. I think a good law professor could try, and I have 8 in various settings. And I haven't succeeded. 9 Q. Have you discussed this point with your colleagues? 10 A. Yes. 11 Q. And what is your view based on those discussions, is 12 this just a problem that you have, or is this a 13 general problem? 14 A. Well, it's not a general problem at the moment, 15 because most law schools right now have what we 16 describe as a critical mass of minority students. 17 The context I discussed today is 18 particularly discussing with the people I teach with 19 in Germany, where the classes I teach are extremely 20 homogeneous, very bright students, all German 21 obviously and all of German nationality. 22 And it is a problem, because teaching 23 American case law to Germans, a lot of it is 24 incomprehensible. Not because the doctrine is 25 incomprehensible, but because the underlined facts GRUTTER -vs- BOLLINGER, ET AL 50 1 and issues are different. 2 And I have tried to recreate the 3 dynamic of a diverse Socratic classroom for those 4 students, by myself asserting the views that I think 5 a diverse group of, say, African American students 6 would assert, or a diverse group of older students. 7 Because many of the students in 8 Germany tend to be in the same age group. And it 9 just doesn't work well. The professor is lecturing 10 instead of the students--drawing it out of the 11 students own experiences. 12 Q. You have said both in your report and today, that 13 you really can't achieve this array of viewpoints 14 and deep thinking that you have talked about without 15 having racial diversity to a meaningful degree, or a 16 critical mass in the classroom. 17 Isn't that just a way of saying that 18 race is a proxy for viewpoint? 19 A. That's what I would have thought when I started 20 teaching, and that's what I found and really did 21 find affirmative action policies troubling and 22 patronizing to some degree. 23 And as I have suggested by my 24 testimony, considering race in admissions in order 25 to get a particular viewpoint--a particular GRUTTER -vs- BOLLINGER, ET AL 51 1 designated approved viewpoint into the classroom is 2 what worried me about race and admissions. 3 And continues to, in my view, be an 4 inappropriately wrong basis for this kind of policy. 5 I don't view it that way now after teaching for 6 fourteen years, and I guess it's based on my 7 experience in the classroom that I don't view it 8 as--that's not how I view it. 9 I view it as basis for in some way 10 doing the opposite, which is educating future 11 lawyers that there is not a racial point of view 12 that they can assume one has because of ones race. 13 And so that it is the case that many 14 of my African American students have what people 15 would presume would be their views on some issues in 16 law ahead of time, but it's also the case that I get 17 very unexpected points of view and incredible class 18 discussion and analysis that follows from it. And 19 that's why I value it. 20 Q. I want to change gears here, we're coming down the 21 home stretch, your Honor. 22 THE COURT: All right. 23 BY MR. KESSLER: 24 Q. You have read the recent supplemental report by 25 Professor Raudenbush, that's Exhibit 150, you made GRUTTER -vs- BOLLINGER, ET AL 52 1 reference to it before. I want to ask you a couple 2 of questions that are based on Professor 3 Raudenbush's report and his conclusions. 4 He concluded, among other things in 5 his report, that Michigan law schools minority 6 enrollment would only be about four percent if 7 Michigan adopted a race neutral policy, as compared 8 with roughly 15 percent under the current policy, 9 you recall that? 10 A. Yes. 11 Q. He also concluded that a first year law section at 12 Michigan, which you probably recall involves about 13 85 students, would only have a 67 percent 14 probability of enrolling three or more minority 15 students as compared with a hundred percent 16 probability of that happening under the current 17 policy, do you recall that? 18 A. I recall that with reference to African American 19 students. 20 Q. Okay. And I want to give you just a couple of more 21 statistics from his report. He also concluded that 22 a first year half section, which is about 42 23 students, would only have a 24 percent probability 24 of them gaining three or four minority students 25 under a race neutral policy, compared with a 96 GRUTTER -vs- BOLLINGER, ET AL 53 1 percent probability of that happening under the 2 current policy. 3 A. Yes. 4 Q. He also concluded--well, let me ask you one 5 question. 6 Does the presence of just three 7 minority students in a class of either 85 or 42, 8 does that represent fairly modest numbers? 9 A. I'm sorry. When you minority students, you're 10 referring to African Americans, Hispanics? 11 Q. Underrepresented minorities, African Americans, 12 Hispanics, Native Americans and so on? 13 A. And can you repeat the question? 14 Q. The question is whether having three minorities 15 overall in classes of either 85 or 42, are those 16 relatively modest numbers of minorities? 17 A. Well, their modest in the sense of achieving the 18 pedagogical side that I talked about in my report, 19 yes. 20 Q. Let me give you just a couple of more conclusions 21 that Professor Raudenbush drew. 22 He also concluded that the 23 probability of enrolling three African Americans or 24 three Hispanics, so it's either or, in the 85, the 25 large student section, a hundred percent under the GRUTTER -vs- BOLLINGER, ET AL 54 1 existing policy, but only 49 percent under a race 2 neutral policy. 3 And lastly, he did make other 4 conclusions, but I'm not going to go through all of 5 them just in the interest of time. 6 He concluded that the probability of 7 enrolling three African Americans or three Hispanics 8 in the half section, the 42 student section, is 89 9 percent under the current policy, but only 13 10 percent under a race neutral policy. 11 And my question to you is, based on 12 those conclusions that Professor Raudenbush drew and 13 assuming that they are correct, does that indicate 14 to you that a race neutral policy at the University 15 of Michigan Law School wouldn't produce a critical 16 mass of minority students? 17 A. It indicates to me that it would not. 18 Q. Based on Professor Raudenbush's analysis, and again, 19 assuming that it is valid and correct. Do you 20 believe that the University of Michigan Law School 21 has considered race only to the extent necessary to 22 achieve a critical mass of minority students? 23 MR. PURDY: Object on foundation. 24 THE COURT: Sustained. 25 GRUTTER -vs- BOLLINGER, ET AL 55 1 BY MR. KESSLER: 2 Q. Would you encourage a student--my last question. 3 Would you encourage a student who is interested in 4 attending law school, to pursue legal education in a 5 school that was not committed to diversity in 6 general, and did not enroll a critical mass of 7 minority students? 8 A. I would and, indeed, frequently counsel students on 9 precisely that issue. And I advise them not to go 10 to schools unless they have a meaningful number of 11 minority students in the classroom settings. 12 And I do that for the reasons given 13 in the report. I am skeptical they will get the 14 best education that they can get if they don't have 15 that advantage. 16 MR. KESSLER: Thank you, Dean 17 Syverud, I have nothing further. 18 MS. MASSIE: Nothing for the 19 Intervenors. 20 THE COURT: Mr. Purdy. 21 CROSS-EXAMINATION 22 BY MR. PURDY: 23 Q. Good morning, Dean Syverud. 24 A. Good morning. 25 Q. My name is Larry Purdy and I represent the GRUTTER -vs- BOLLINGER, ET AL 56 1 Plaintiff, we met this morning for the first time 2 before court opened, you recall? 3 A. I recall. 4 Q. Okay. You mentioned that you have consulted with 5 the University of Oregon Law School, is that 6 correct? 7 A. No, I was on the accreditation team for the American 8 Bar Association that was reaccrediting the 9 University of Oregon Law School. 10 Q. You think the University of Oregon Law School offers 11 an outstanding legal education to its students? 12 A. I think it is a good legal education for its 13 students. 14 Q. Do you consider the Oregon Law School to have a 15 critical mass of underrepresented minority students 16 in the student body? 17 A. I do not. 18 Q. Nevertheless, you consider that it offers a good 19 education to the law students that attend? 20 A. I do. 21 Q. The University of South Dakota, what was your 22 affiliation with the University of South Dakota? 23 A. I was asked by the Dean to speak to the faculty and 24 students there. 25 Q. Do you consider the University of South Dakota to do GRUTTER -vs- BOLLINGER, ET AL 57 1 a good job of offering a legal education to the 2 students that attend that law school? 3 A. I do. 4 Q. If a student from South Dakota said, Dean Syverud, 5 should I attend the University of South Dakota Law 6 School, would you tell him or her not to go there 7 because in your view the racial mix might not be up 8 to what you would expect? 9 A. I would ask that student about that student's career 10 goals, and my advice would depend on those. My 11 family is from South Dakota, and South Dakota is not 12 a racially diverse place. 13 It's kind of like Scandinavian, 14 German with the exception of parts of Sioux Falls. 15 And I would and actually was asked by students when 16 I was at South Dakota about this issue, because it's 17 a quite homogeneous law school in the racial sense. 18 Not in the experiential background of the students. 19 And if a student, a potential law 20 student wanted to practice law in settings around 21 the United States where there is a great deal of 22 racial diversity, or practice law internationally, I 23 would not advise that student to go to the 24 University of South Dakota Law School, for the 25 reasons you gave, among others. GRUTTER -vs- BOLLINGER, ET AL 58 1 Q. Let me so we all understand. If you have a student 2 in South Dakota and they wanted to attend the 3 University of South Dakota Law School, but had an 4 aspiration of practicing law, say, on the east coast 5 or the west coast, it would be your advice that they 6 not attend that law school which you have already 7 told us you believe gives a good education, a good 8 legal education, correct? 9 A. I testified it's a good legal education, yes. 10 Q. But because of your view of the lack of critical 11 mass, because I assume we can all agree, there is a 12 lack of critical mass in minority students in South 13 Dakota? 14 A. Yes, there are a decent number of Native American 15 students at the University of South Dakota Law 16 School, because of the Native American population in 17 South Dakota. There is a very small percentage of 18 African Americans or Hispanic students. 19 Q. As a matter of fact, Native American students can 20 add a tremendous amount of diversity to a law 21 school, can they not? 22 A. Yes, they can. 23 Q. How many Native Americans students attend Vanderbilt 24 Law School? 25 A. Almost none. But your question was would I advise GRUTTER -vs- BOLLINGER, ET AL 59 1 the person to go to the University of South Dakota 2 Law School, and I answer is between equally situated 3 law schools, and there would be choices for such a 4 student. 5 Including schools like William 6 Mitchell in Minneapolis or other schools in the 7 region, that are more racially diversed in the 8 senses that we've described. 9 And I seriously would advise that 10 student to look very closely at those alternatives. 11 Not if that person wants to practice on the coast, 12 but if that person has a goal of practicing in 13 Minneapolis. And I did so advise a student. 14 Q. My ala mater would be pleased to hear that. 15 A. I'm sorry, I didn't know that. 16 Q. That's all right, I'm sure they'll be proud to hear 17 that you would advise students to go there. 18 A. Okay. 19 Q. I want to go back because there are many state 20 residents in South Dakota who, for a variety of 21 reasons, socioeconomic reasons, family reasons, 22 would prefer or may, indeed, be required to attend 23 law school in South Dakota, would you agree? 24 A. Yes. 25 Q. And are you suggesting, however, that a student who GRUTTER -vs- BOLLINGER, ET AL 60 1 attends law school in South Dakota is going to be 2 somehow unprepared to go out and practice law on the 3 east coast or the west coast, or in Minneapolis, or 4 Detroit or Chicago, simply because of the racial mix 5 that may be present in his or her law school class? 6 A. No, I'm not suggesting that. 7 Q. You had a fascinating question earlier about 8 learning something about the extent to which parents 9 may buy life insurance for children, do you recall 10 that? 11 A. Yes, I do. 12 Q. Dean Syverud, isn't it true that had that issue been 13 brought to your issue by a white student or an Asian 14 student, it still would have been a surprise to you? 15 A. Yes. It just wasn't, so. 16 Q. But the color, or the ethnicity of the student who 17 brought that to your attention, had nothing to do 18 with what you learned from that advice, correct? 19 A. That is correct. And it has been my experience over 20 time that the experiential base of students is 21 diverse among all students, not just in racial 22 minorities. 23 But it has been my experience that a 24 critical mass of minority students does bring an 25 experiential base that tends not to come out GRUTTER -vs- BOLLINGER, ET AL 61 1 otherwise. 2 Q. You have raised the example of sometimes where there 3 might be, say, just one and let's use for example an 4 African American student in the class. 5 That if asked a question, it was your 6 view or your feeling that a black or, say, Hispanic 7 would, and I believe I wrote this down and I 8 apologize if I didn't get it correctly. 9 That they had race views that tend to 10 be the politically correct or the expected views, do 11 you recall that testimony? 12 A. I recall testifying that the more common response is 13 silence or not kind of probing examination of 14 individual views. And if not that, then the next 15 most common response in a token situation, is the 16 politically correct view. 17 Q. Do you assume that there are expected views from 18 black students or Hispanic students? 19 A. That's a good question. I guess from my experience 20 of teaching and particularly talking with students 21 inside and outside class, I have become increasingly 22 convinced that many white students have projected 23 expected views that minority students will have 24 uncertain questions, yes. 25 Q. Are you generalizing now as to white students, in GRUTTER -vs- BOLLINGER, ET AL 62 1 other words, you assume that most white students 2 expect a particular view from a minority? 3 A. I'm not assuming anything, I'm basing it on 4 conversations with my white students. 5 Q. But there are white students, I'm sure, who don't 6 share that view? 7 A. Yes, that's very correct. 8 Q. And wouldn't it be true that if we didn't walk into 9 a classroom with an expected view from anyone based 10 on their race, we wouldn't even have this issue, 11 wouldn't that be true? 12 A. If no one would walk into the room, no student or 13 teacher went in expecting what the views and 14 experiences of the people in the class would be, I 15 agree we wouldn't have this issue. 16 Q. In other words--I apologize, I didn't mean to talk 17 over you. 18 A. That's okay. 19 Q. In other words, would you agree with this, Dean 20 Syverud, if we respected one other as individuals 21 and not as representatives of our race, there would 22 be no expected view, correct? 23 A. Yes, and that's exactly one of the primary goals I'm 24 trying to get to in my teaching. Your question 25 presumes that kind of the mental attitude of the GRUTTER -vs- BOLLINGER, ET AL 63 1 professor going in, can kind of produce that 2 atmosphere in the classroom. 3 And that's the way I started 4 teaching, that's the presumption I started teaching 5 with. And I guess I have a different presumption 6 now from a lot of experienced teaching. 7 That it isn't just me--it isn't 8 just--it isn't something the professor automatically 9 causes to happen by attitude of the teacher in the 10 classroom. 11 It requires a dialogue among the 12 students over a period of time that doesn't consist 13 of kind of self righteous lecturing of that point of 14 view by the professor, but as it emerge from 15 understanding of hearing everybody talk about their 16 points of view during the course of the semester. 17 And that's hard to make happen in a 18 classroom that doesn't have significant numbers of 19 minority students. 20 Q. You make it sound, and please correct me if I'm 21 wrong. But you make it sound as if the vast 22 majority of law students that come into our very 23 fine law schools today, have these assumptions about 24 other people that somehow race or ethnicity dictates 25 their views, is that your assumption? GRUTTER -vs- BOLLINGER, ET AL 64 1 A. I guess I'm saying something different, which is 2 that for reasons I don't understand the degree to 3 which people prior to law school, law students I 4 have will come in, listen to each other before 5 talking and projecting assumptions about views is a 6 problem. It really is a problem. 7 A degree to which by the time 8 students get to law school, they have categorized 9 people. It has increasingly bothered me. 10 I guess that's a criticism of the 11 educational system up to law school. And I guess 12 that could be viewed as me being patronizing of my 13 students. 14 It's just my experience though that 15 many students assume they know what people think of 16 issues before they ask. 17 And assume that the experiences of 18 individuals is similar to their own until--it's part 19 of the socialization process. 20 And there is a socialization process 21 in law school of wanting to seem professional like 22 everybody else. That it requires some effort on my 23 part to break down. 24 Q. Do you make any assumptions, Dean Syverud, as to the 25 extent of which your law students either when you GRUTTER -vs- BOLLINGER, ET AL 65 1 were at Michigan, or now that you're at Vanderbilt, 2 had interracial relationships before they ever got 3 to law school, do you make any assumptions about 4 that? 5 A. I don't make assumptions except for what information 6 we gleam from the admissions applicants and the 7 materials about the students. 8 Q. I'm sorry, go ahead, I apologize. 9 A. So, there is some, you know, there's some data in 10 the admissions files and the essays and other things 11 that students write. 12 And usually I do look at that 13 material before I teach, particularly, a first year 14 class. So I get some information about the 15 backgrounds, including experience across races in my 16 students. 17 Q. But is there anything in an applications file that 18 suggest that students either at Michigan or those at 19 Vanderbilt, have come into the school without any 20 interracial relationships or dealings before they 21 got there? 22 A. Actually the individual admissions files don't show 23 that detail of experience. I mean I take my first 24 year students out to lunch in groups and talk about 25 their experiences and their backgrounds, where GRUTTER -vs- BOLLINGER, ET AL 66 1 they're from. 2 And in Vanderbilt many of them are 3 from small towns in the south, where there's 4 substantial interracial experiences by the nature of 5 the community. So I guess it varies by the 6 individual. 7 There are students have no experience 8 at all. There are students who are brought up in 9 racially diverse settings because the churches are 10 very segregated, or the schools are very segregated 11 and they have not had much experience. 12 And there's students who have 13 unbelievably diverse interracial experiences. 14 Q. And that varies across racial lines, wouldn't that 15 be true, of both blacks students, for example, and 16 white students? 17 A. Yes, it sure does. 18 Q. In your testimony you made a statement, you said 19 that you never had any trouble with your white 20 students in terms of seeing over the course of a 21 year a vast majority of experiences, you recall that 22 testimony? 23 A. Yes, I said that I have never had any trouble with 24 white students projecting onto another white student 25 assumptions of their views of almost all issues GRUTTER -vs- BOLLINGER, ET AL 67 1 because of their race. 2 And that's primarily been every class 3 I've taught there's been such an incredible 4 diversity of background and experience among the 5 white students that become very obvious very quickly 6 in the semester. 7 Q. Sure. In other words, every individual is different 8 and there's a broad range of diversity and a broad 9 range of experiences that are present in both the 10 Law School of Michigan, as well as at Vanderbilt? 11 A. Yes. But the difference is that that becomes 12 obvious among the white students early in the 13 semester everytime. It becomes obvious everytime, 14 because there's always a critical mass of white 15 students in every class I've taught. 16 And so very quickly after I've called 17 on four or five of them, it's obvious they all don't 18 have the same views and they all don't agree. And 19 therefore, they are comfortable expressing different 20 views and disagreeing with each other very quickly. 21 Q. You've made an assumption, and again correct me if 22 I'm wrong. I believe you've made the assumption 23 that the black students, for example, who come into 24 your classroom are less comfortable expressing their 25 viewpoints at Vanderbilt Law School, is that GRUTTER -vs- BOLLINGER, ET AL 68 1 correct? 2 A. It's been my experience that for some black students 3 that is the case, yes. 4 Q. But not for all, correct? 5 A. Very correct. 6 Q. And there are white students who are uncomfortable 7 expressing their views, are there not? 8 A. Yes. And that's kind of why I call on them the way 9 I call on them. Which is at random dropping paper 10 clips on to the seating chart. So the uncomfortable 11 ones have to talk too. 12 Q. So I'm sure they're always worried when you start 13 throwing the paper clips? 14 A. They are very worried, yes. 15 Q. You made a very interesting comment, I want to make 16 sure I got it down. I believe in your testimony 17 earlier this morning you said that it can be enough 18 to have one member of a particular minority in a 19 classroom, correct? 20 A. Yes. 21 Q. And that just simply depends on that individually, 22 his or her personality, correct? 23 A. It's really tough, because it's hard for--it's hard 24 in the sense for one African American student to 25 demonstrate to in various ways a diversity of views GRUTTER -vs- BOLLINGER, ET AL 69 1 among African American students. Because by 2 definition, that's a unique individual. 3 But what one outspoken and unique 4 individual can do is shake up expectations and start 5 getting everybody in the class to view that person 6 as a unique individual. 7 Q. Dean Syverud, I believe in one of your reports you 8 have talked about the law school education 9 being--and I'll just paraphrase. It being 10 immeasurably poor, or if there's not meaningful 11 numbers, or significant numbers of blacks, Hispanic, 12 Asian Americans and white students, I believe that 13 was what you said, you recall that? 14 A. Yes. I have to look at the report, but I remember 15 that sentence in the report. 16 Q. Sure. And if you were lacking, if a law school were 17 lacking in any one of those particular groups, in 18 other words, lacked a critical mass, do you believe 19 that that law school would be offering an inferior 20 education, a legal education to its students? 21 A. As compared to schools that didn't lack that 22 critical mass, yes. 23 Q. I earlier asked you about Vanderbilt's enrollment of 24 Native Americans. And, in fact, do you know if 25 there is even one Native American at Vanderbilt Law GRUTTER -vs- BOLLINGER, ET AL 70 1 School currently? 2 A. Yes, there is currently. I mean we had, 3 historically we had a huge, believe it or not, 4 Cherokee population before World War II. 5 But currently it's quite common for 6 an entering class not to have a single Native 7 American student. There is one in this year's 8 entering class, I believe. 9 Q. You consider that a critical mass? 10 A. No, I don't. 11 Q. How about, let's just use last year's entering class 12 at Vanderbilt. Were there any Hispanic students? 13 A. You mean the class that entered in 1999, there was 14 not a single Hispanic student, correct. 15 Q. Did you tell your students that entered in that 16 class that their education was going to be inferior 17 because of the absence of Hispanic students? 18 A. I talked to students about the issue and explained 19 why I was very concerned about it, yes. 20 Q. But the truth is the class had no Hispanics in it? 21 A. That's correct. 22 Q. Do you recall the percentage of the class that was 23 made up by African American students? 24 A. In the entering class in 1999? 25 Q. Yes, sir. GRUTTER -vs- BOLLINGER, ET AL 71 1 A. I don't recall the exact percentage, no. 2 Q. If I told you it was around seven percent, would 3 that be consistent with your understanding of that 4 class? 5 A. I would think it would be slightly larger than that. 6 Q. Outside of African American students, there were no 7 Native Americans in last year's entering class, 8 correct? 9 A. That's correct. 10 Q. No Hispanics was in that class, correct? 11 A. I believe that's correct, yes. 12 Q. And so the total underrepresented minority 13 population in last year's entering class would have 14 been--and I just want you to assume, and you correct 15 me if I'm wrong. 16 But I want you to assume it was about 17 seven percent. 18 A. Okay. 19 Q. And that would be the total underrepresented 20 minority population at Vanderbilt in last year's 21 entering class? 22 A. Correct. I will take that assumption as correct. 23 Q. Okay. Would that constitute a critical mass of 24 underrepresented minority students, in your view? 25 A. I think it would represent a critical mass of GRUTTER -vs- BOLLINGER, ET AL 72 1 African American students. And I say that primarily 2 because I taught civil procedure to half of those 3 students last year, and had in my civil procedure 4 class at least five or six African American 5 students, and the dynamic I described occurred. 6 That is, over the course of the 7 semester the students became individuals with the 8 kind of caustic views across races, across black and 9 white races. 10 Nashville, Tennessee is not a state 11 that--it's a southern state where the significant 12 minority population is African American. 13 But I would say it had a critical 14 mass of African American students, because the 15 pedagogical goals that I described happened in my 16 class with African American students. 17 Q. Of course, the University of Michigan's admissions 18 policy talks about a critical mass of 19 underrepresented minority students, correct? 20 A. I believe so, yes. 21 Q. And that included the Hispanics, African Americans 22 and Native Americans? 23 A. Yes. I believe it did, yes. 24 Q. If Vanderbilt last year rather then have a seven 25 percent African American students, it had no African GRUTTER -vs- BOLLINGER, ET AL 73 1 American students but seven percent Hispanic 2 students, would you still have the same view of the 3 class? 4 A. Again it would depend on what happened in the class 5 I taught. I mean when I say meaningful numbers of 6 minority students, it's not a particular minimum 7 standard quantifiable goal. It's what happens in 8 class with those particular students as to whether 9 it works. 10 I wouldn't be concerned in the same 11 way in that hypothetical as I was, in fact, 12 concerned about the Hispanic enrollments if I had no 13 African Americans in the classroom. 14 Q. Dean Syverud, we have talked a lot about critical 15 mass and you have been lucky, because you haven't 16 had to be here the last week or so because that 17 subject has come up a lot. And we try to get a 18 number on it and I don't think we're going to be 19 successful, at least, here in this courtroom. 20 But if I were to ask you would five 21 percent underrepresented minority enrollment 22 constitute a critical mass, do you have an opinion 23 one way or the other? 24 A. I guess from what I said, you can probably guess at 25 what my opinion is, but I will say. GRUTTER -vs- BOLLINGER, ET AL 74 1 Q. Sure. 2 A. It would depend on the effect in the classroom. I 3 would say that five percent African American 4 enrollment to the extent it produced significant 5 numbers of African American students in the relevant 6 classroom settings, would produce a critical mass. 7 So it would depend on what classroom settings the 8 school employs. 9 Q. And, of course, whether or not that particular 10 percentage might constitute critical mass is going 11 to depend uniquely on the individuals, correct? 12 A. That's my view, yes. 13 THE COURT: And the professor's? 14 A. Yes. 15 MR. PURDY: I'm sorry? 16 THE COURT: I said and the professor, 17 depending on what the teaching method is and so 18 forth. 19 A. Yes, I agree. 20 BY MR. PURDY: 21 Q. That prompts another question. Do you believe, as 22 of last year, do you believe that the Vanderbilt law 23 faculty had critical mass of minority members? 24 A. I'm sorry? You want to talk about diversity in the 25 law faculty? GRUTTER -vs- BOLLINGER, ET AL 75 1 Q. No, I just want to ask one question, and I 2 apologize. And I will limit it to this. 3 A. Sure. 4 Q. Beginning in 1999, the 1999 calendar year, academic 5 year 99/2000, was it your view that the Vanderbilt 6 faculty had a critical mass of minority members? 7 A. Well, I guess I can't just translate this 8 significant numbers question that we've been 9 discussing for students onto faculty, it's a 10 different question. 11 I guess the dynamics of faculty 12 interaction with each other and with the students is 13 a little different then the dynamic of one professor 14 teaching a class. So I never thought about critical 15 mass of faculty. 16 Q. Okay. 17 A. And I didn't understand that that was- 18 Q. (Interposing) It's not an issue, I just asked the 19 question and let me just be clear. 20 A. Yes. 21 Q. Critical mass that you have been talking about for 22 students, might be something entirely different if 23 we're talking about faculty? 24 A. Yes. It is the case that as of last year there was 25 one tenured African American faculty member at GRUTTER -vs- BOLLINGER, ET AL 76 1 Vanderbilt, there are four now. 2 It is the case that there is only two 3 Asian American faculty members at Vanderbilt, and no 4 Hispanic of Native American faculty. 5 I guess I haven't--I guess the kind 6 of clastic views on what critical mass what--on 7 affirmative action issues with regard to faculty 8 recruitment. 9 And I've been testifying here about 10 pedagogy in the classroom, and I actually think it's 11 a different question about professors. 12 Most professor teach as individuals, 13 and so the notion that there is a critical mass of 14 your one person when you're teaching. 15 Q. Can we assume then, and I'll move on. Can we assume 16 that your views about the use of race and selected 17 faculty may be different from those of selected 18 students? 19 A. Yes, you can. 20 Q. Dean Syverud, let me give you, and it's not a 21 hypothetical, but I'm going to give you a law school 22 with 16 percent African American students. So I 23 want you to assume this, but