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: 10 97-CV-75928 11 LEE BOLLINGER, JEFFREY LEHMAN, 12 DENNIS SHIELDS, and REGENTS OF 13 THE UNIVERSITY OF MICHIGAN, 14 Defendants, 15 -and- 16 KIMBERLY JAMES, et al., 17 Intervening Defendants. 18 ------------------------------------/ VOLUME 14 19 BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN 20 United States District Judge 238 U.S. Courthouse & Federal Building 21 231 Lafayette Boulevard West Detroit, Michigan 22 Thursday, February 15, 2001 23 APPEARANCES: 24 FOR PLAINTIFF: Kirk O. Kolbo, Esq. 25 R. Lawrence Purdy, Esq. 2 1 FOR DEFENDANTS: John Payton, Esq. 2 Craig Goldblatt, Esq. 3 Stuart Delery, Esq. 4 On behalf of Defendants 5 Bollinger, et. al. 6 7 George B. Washington, Esq. 8 Miranda K.S. Massie, Esq. 9 Jodi Masley, Esq. 10 On behalf of Intervening Defendants. 11 12 13 COURT REPORTER Joan L. Morgan, CSR 14 Official Court Reporter 15 16 17 18 19 20 Proceedings recorded by mechanical stenography. 21 Transcript produced by computer-assisted 22 transcription. 23 24 25 3 1 I N D E X 2 3 4 PAGE: 5 MOTIONS ARGUED: 6 MR. PAYTON 6 7 MR. KOLBO 14 8 MS. MASSIE 33 9 10 WITNESS: PAGE: 11 12 PROFESSOR LEMPERT 13 Direct Examination by Ms. Massie 42 14 Cross-Examination by Mr. Goldblatt 92 15 Cross-Examination by Mr. Purdy 113 16 ReDirect Examination by Ms. Massie 161. 17 18 TANIA KAPPNER 19 Direct Examination by Ms. Masley 170 20 21 E X H I B I T S 22 23 MARKED RECEIVED 24 Trial Exhibit 165 47 25 Trial Exhibit 230 47 GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 4 1 Detroit, Michigan 2 Thursday, February 15, 2001 3 (At or about 8:30 a.m.) 4 -- --- -- 5 COURT CLERK: All rise. United States District 6 Court for the Eastern District of Michigan is now in session. 7 The Honorable Bernard A. Friedman presiding. 8 THE COURT: You may be seated. Thank you. 9 Well, I thought things were going so well in terms 10 of lawyering in this case, and so I have read everything 11 that's been submitted this morning and I still have a lot of 12 questions and so forth, but I guess my primary question 13 initially is, and again, I'm not making a ruling at this 14 point, but again, I haven't had a lot of time to digest it, 15 probably no more time than you have had a chance to write it, 16 so we're all in equal positions, but I have some concerns and 17 my concerns are not substantive law or rules or things of that 18 nature, but just fair play, very frankly. 19 I mean, and I'm starting with the Plaintiffs' 20 position, and that is, right through the whole trial there has 21 been indication from day one that they were going to designate 22 certain portions of the transcripts. I didn't know how, very 23 frankly, but nobody objected at that time. 24 There was the pretrial statement, that's why I came 25 in this morning, to make sure to take a look, and the pretrial GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 5 1 statement says that. In fact, at one time I remember, but you 2 all have a copy of the record and I don't at this point, that 3 we even talked about there is no reason to read those into the 4 record in the Plaintiffs' case, because I can read, and I 5 think I said that, so I don't have the transcript, but I 6 remember saying something to the effect, don't read them in, 7 let's not waste our time, I can read. 8 Then I note from just again, just a quick review, 9 that the Plaintiffs did indicate to the Defendants and 10 Intervenors certainly on January 4 certain portions of 11 transcripts and people and so forth, with specific pages and 12 so forth that they were due. I suspect that all parties knew 13 that, since they received the communications from the 4th, and 14 the first pretrial statement was filed on the 10th, I believe, 15 and there was no objections there. 16 And then there is the supplement that was filed on 17 the 16th, and again there was no objections as to those, 18 except as to relevance or other evidentiary grounds, but -- so 19 what I'm suggesting is maybe you better sit down and talk 20 about this for a bit. 21 I have read the Defendants' objections, however, 22 they all seem to be substantive kind of objections, that these 23 folks are at the University of Michigan, they were within a 24 hundred miles, they are able to be here, which could have been 25 raised before the Defendants rested, or that they are not, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 6 1 quote, officers, directors, you know. Even though it's a 2 public institution, the definition is a little bit difference, 3 so I have that as a fundamental fairness problem, to start 4 with. 5 With that said, I'll hear, you know, what you have to 6 say, but I think that maybe you should spend a little bit more 7 time talking about this. 8 Mr. Payton? 9 MR. PAYTON: Your Honor, I want to address just the 10 fairness point that you just raised. And this is the backdrop 11 for the fairness point, because I believe that the situation 12 we're in is very unfair to the University if these depositions 13 are allowed in and I'm going to explain hat. 14 I think under Rule 32, I don't think there is any 15 question that these depositions that we're arguing about, let 16 me just talk about, for example, the faculty depositions. 17 THE COURT: Those are the ones I'm -- 18 MR. PAYTON: The faculty depositions clearly don't 19 meet the requirements of 32, they are all here. Rule 32 sets 20 out how you operate. If they are here and available when they 21 are deposed, we know that since they are here and available 22 that deposition is not going to be used at trial, they can be 23 called to trial, and you proceed accordingly. 24 So at the depositions, when things are asked that 25 are half a point or they are not clear, we don't at the end of GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 7 1 that complete it as though it were a trial deposition, because 2 they are going to have to call them as witnesses at trial. 3 THE COURT: I agree. 4 MR. PAYTON: So there is an unfairness if those are 5 used, and those are the ground rules that 32 sets out. 6 THE COURT: Let me stop you for one second, because 7 I don't disagree with anything you said, except for what I 8 would ask you to address more particularly, and again, you 9 know, are the ones that are contained in the letter of January 10 4, and then subsequently incorporated, I would suspect, into 11 the Plaintiffs' position when they said we're resting subject 12 to depositions, and that's what I'm more concerned with, 13 because those you had notice of. 14 MR. PAYTON: Well, what we had was, I would say, 15 starting on January 4, sort of a laundry list of potential 16 witnesses and designations. It was just everything in the 17 world, then got whittled down. 18 Well, we filed the pretrial, I don't remember the 19 actual date, but it was the week before the trial, and in that 20 original pretrial, Exhibit B, which is the deposition 21 designations, is not submitted because we hadn't completed 22 that. 23 That's filed on the first day of trial, the 16th. So 24 on the 16th, Exhibit B, which has all the designations, is 25 filed. And in the supplemental joint pretrial statement, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 8 1 which is on the 16th, we do reserve our objections to all the 2 depositions. 3 THE COURT: No, you don't. You said the parties 4 reserve the right to object to the admissibility of any 5 particular exhibit or deposition transcript excerpts on 6 relevance or other evidentiary grounds. 7 MR. PAYTON: If they can't -- you know, Rule 32, if 8 they can't use it, they can't use it. 9 THE COURT: But Rule 32 is not an evidentiary 10 grounds, that's a substantive grounds. The person is 100 11 miles away, bring them in. Evidentiary grounds means that, 12 hey, it's not relevant, it's not -- you know, it's this, it's 13 that, there's no basis, something of that nature, as opposed 14 to the deposition itself. I mean, that's how I interpret it. 15 MR. PAYTON: I guess that's not the way we 16 interpreted that at all; that when they say that we knew all 17 along that they were going to certainly use these depositions, 18 I'm telling you, that's certainly not what we knew. If they 19 wanted to call these witnesses, that would be fine, because 20 then we would put them on and we would fill out the record and 21 you would see the complete picture of what is going on. I 22 don't have a problem with them calling the witnesses at all. 23 And they put them all on there, and to be quite honest, I 24 didn't even think they were going to try to put in these 25 depositions, but we did intend to reserve our rights. And it GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 9 1 may be that they didn't fully appreciate that or that we 2 didn't fully appreciate what they were about to do. 3 THE COURT: Maybe there is a misunderstanding. 4 MR. PAYTON: I'm just saying on the issue of 5 unfairness, which is what the Court raised, I'm just saying on 6 the issue of unfairness, I believe this is much more unfair to 7 us than this is to them, okay, because that's the issue the 8 Court just raised, okay. 9 THE COURT: Okay. What I'm hearing from you is that 10 there was a misunderstanding and all I have before me is the 11 writings. I wasn't there. I don't know, you know, how the 12 parties -- meetings of the minds of the parties were, all I 13 have is what's before me. 14 MR. PAYTON: If it's -- I guess, you know, I don't 15 want to become overly technical, but if you want to use a 16 deposition and not use it with the witness right there, then 17 to simply say we're going to use any deposition out there, 18 with nothing more, the deposition is hearsay, unless we have 19 some way to get it in. That's an evidentiary objection. 20 THE COURT: I don't know if it's hearsay in that 21 sense, but I don't disagree with you. It's very unusual to -- 22 when the witness is 100 miles away -- 23 MR. PAYTON: It's very unusual. 24 THE COURT: -- to agree to not call that witness and 25 just -- but I didn't know, and I don't know what went through GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 10 1 the minds. I mean, I thought at the time, very frankly, when 2 he rested and said we're going to read some portions of a 3 deposition in, I thought that was very unusual. 4 MR. PAYTON: It is unusual and let me just -- so you 5 see the complete picture, I think you do, there are other 6 depositions where they don't fall into this category. These 7 aren't all the depositions that they could have put in or 8 supplemented the record with, but as for these depositions, 9 where the witnesses are all right here and they could have 10 called them, I actually thought they were going to call them. 11 The idea that we can now put in what I would call an 12 incomplete record, which is what the depositions are, is 13 unfair to us on the unfairness point, just unfair. I think 14 the depositions are hearsay. If we just gave you a document 15 and said here it is, it should go in, it's hearsay unless we 16 -- 17 THE COURT: I'll get to the legal arguments or the 18 substantive arguments. I mean, I'm looking at the list. Lee 19 Bollinger, well, I would have sent back a letter and said, 20 wait a minute, we're not going to agree to President Lee 21 Bollinger. He is going to be testifying here. Why would we 22 ever agree to designate any portions of his dep. 23 I'm just thinking out loud. When I read this, I got it earlier 24 this morning, I have been reading this maybe for a couple 25 hours now, and the same thing was still nagging. I would have GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 11 1 written back a little note, what are you talking about, 2 Stillwagon? He is going to be testifying here. Why would I 3 allow designations of his deposition? But as far as I'm -- 4 see here, maybe I'm wrong, there has been -- there was no 5 response and it was -- it kept being perpetuated in the 6 pretrial and then the supplemental pretrial. 7 The real question, I guess, and I'll hear it, is the 8 Plaintiff -- I mean, what's the Plaintiffs' position, do you 9 really need these? I think it's unusual and I don't know if I 10 would -- I'm waiting to get to something that was taken out of 11 the deposition. 12 MR. PAYTON: Let me just ask you, the issue you just 13 raised, take Bollinger, President Bollinger. I think under 14 the rules, since he is a party, they can probably use his 15 deposition, that is, there is not one answer to all of these, 16 that under the rule, they can use it, because he is a party. 17 The faculty members aren't parties and they couldn't use them. 18 And I think that we clearly intended to be reserving these 19 objections in the supplement, which contains that. For them 20 to say that we waived all of this, I just think that's just 21 fanciful. We can't waive it. Maybe there is a 22 misunderstanding. We certainly didn't intend to waive it. 23 You're exactly right, that we never thought this is what would 24 be happening at trial. I don't think anyone would have 25 thought that, but -- GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 12 1 THE COURT: I thought that as soon as they -- just 2 at their closing, when they said, we close subject to this, I 3 thought, it went through my mind immediately, it's unusual, 4 but if the parties agree, they have been getting along pretty 5 well. 6 MR. PAYTON: We certainly did understand that there 7 would be things that they would be trying to move in, that 8 some of those would include depositions, and some of those 9 depositions in fact would not be objectionable, because, just 10 what I said, take President Bollinger, but that some of them 11 -- 12 THE COURT: But President Bollinger, even his would 13 be objectionable, because he testified here live. 14 MR. PAYTON: Well, actually, I agree that that's how 15 it ought to go. I think there is an argument that since he is 16 a party, and in fact, they can use it for any purpose, and I 17 think Rule 32 says something like that, but I'm just saying 18 that -- 19 THE COURT: My issue is, again, I don't want to get 20 into it, since he testified, what possible purpose could there 21 be, can't be cross examination, can't be this, can't be that, 22 because he testified. I mean, under Rule 32 there is not one 23 other thing left in that whole rule that Bollinger, that 24 President Bollinger's testimony could -- deposition could be 25 used for, because he was here live. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 13 1 MR. PAYTON: Well, I actually tried to be more 2 nuanced about it and maybe I was being too technical, but I 3 think it says that they can use a party's deposition for any 4 purpose, including just putting it in. 5 THE COURT: If it's relevant. 6 MR. PAYTON: So I wasn't going to argue about that. 7 THE COURT: We still have the relevance. 8 MR. PAYTON: We still have that relevance argument, 9 but I think we can work that out. As far as the other 10 depositions, I think they can't use them under Rule 32. 11 THE COURT: Well, I agree with you, except for the 12 fact that there appears to be an agreement, or there appears 13 on paper to be an agreement. Now, whether there is an 14 agreement or -- 15 MR. PAYTON: I think there was no agreement and I 16 think what's on paper is our reservation, all the parties' 17 reservation of rights with regard to depositions. There was 18 no agreement. 19 Now, I guess the question is, what do we do now that 20 there was no agreement. I think the rules are pretty clear 21 and I think the harm is also pretty clear. 22 THE COURT: Just as to this issue, at this point. 23 MR. KOLBO: Not the substance of the -- 24 THE COURT: Well, I'll hear a little. 25 MR. KOLBO: I have a number of points, Your Honor. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 14 1 THE COURT: Go on. 2 MR. KOLBO: We were certainly surprised. We learned 3 for the first time Wednesday afternoon about 3:30 that there 4 was going to be an objection to receiving these depositions in 5 this case. As the Court indicated, we made this clear long 6 ago that we wanted to proceed this way and there were no 7 objections. In fact, what happened was, there were a number 8 of conversations with Counsel about this and there was a clear 9 understanding that they were going to cross designate. 10 THE COURT: They were going to do what? 11 MR. KOLBO: That they were going to cross designate. 12 We offered portions of the depositions from a number of the 13 individuals and we got back in most cases more cross 14 designations than designated to begin with, so there was a 15 clear understanding on our part that both parties were going 16 to offer these depositions in trial, frankly, in part, Your 17 Honor, to save time, and as a courtesy to the University not 18 to bring these people here, when we have got what we want in 19 their transcripts. We thought that was just the simplest way 20 of proceeding, and that's why we did it that way. 21 There were a number of conversations about this. Not 22 one time until Wednesday afternoon was there an objection to 23 this. And it seems to me, Your Honor, this is the kind of 24 thing that they had an obligation to object to, because it was 25 easily curable. Had Mr. Payton said to me at any point that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 15 1 we are going to object, you can't bring Professor Cooper, you 2 can't use his deposition, because he is here, we would have 3 said simply, Your Honor, well, bring him. We wouldn't have 4 needed to subpoena them, Your Honor. These are people under 5 the control of the University. We would have simply said, 6 bring them, we want their testimony. 7 That's what we did with Erica Munzell, Your Honor. 8 We called her in our case-in-chief. I didn't have to go 9 subpoena her. I simply said to Mr. Payton, we want her here, 10 and she was here, because she was under their control. That's 11 what we would have done, very simply with respect to these 12 other witnesses, had I had any idea that there was going to be 13 an objection to the using of their depositions in this case. 14 It just came totally out of the blue to us at this point, Your 15 Honor. 16 On the -- with respect to the pretrial order, I'm a 17 little concerned about that, Your Honor, and I'm not going to 18 cast my blame about this, but the first pretrial order I 19 signed and looked at was an extensive one, and said nothing 20 about reserving the rights of any kind with respect to 21 depositions. 22 It was only the first day of trial I was presented 23 with -- the very first day of trial as we started I was 24 presented with a supplemental that I thought just sort of 25 updated where we were in terms of -- in terms of the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 16 1 designations. It turns out there was a substantive change put 2 in there that allowed this right to reserve something about 3 depositions. 4 I guess it's my fault, Your Honor, I should have gone 5 back and fly-specked it and said is there something 6 substantively different here, but clearly in the first one 7 that was circulated and that I read very carefully, nothing 8 was said about reserving any rights with respect to 9 depositions in terms of their admissibility. 10 So I think it's just too late in the game for this, 11 Your Honor, and we have been prejudiced by operating, I think 12 reasonably, under the assumption that this was not going to be 13 a problem. 14 We checked the record on this, as Your Honor has 15 mentioned. We mentioned this at the close of our case that we 16 were going to do this. Mr. Payton, in his remarks, 17 acknowledged that in fact there were going to be additional 18 things presented. It seems to me that was the time, Your 19 Honor, to raise this objection, and we would have simply said, 20 well, bring them, bring them. 21 And all we'd do, if they brought them, and in fact 22 they can do this tomorrow if they are really concerned about 23 this, all we're going to do is ask them, did we ask you these 24 questions and did you give these answers, that's all it's 25 going to be, Your Honor. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 17 1 If I might just address the substance of the 2 admissibility of these depositions, Your Honor, we don't think 3 there is any question, Your Honor, that they are admissible 4 for any purpose. These are admissions of the University of 5 Michigan Law School. Every one of these people, because I 6 have told Mr. Payton we will withdraw Stillwagon on this 7 point, every one of these other depositions are individuals 8 who were acting under authority of the law school for the very 9 thing that's at issue in this case; that is, we have got a 10 deposition of the Chairman of the Faculty Admissions 11 Committee, of several other of the Faculty Admissions 12 Committee. Erica Roselle, some additional deposition 13 designations there, she was actually implementing the policy. 14 These are all admissions, and admissions, Your Honor, of 15 course, can be used for any purpose. It doesn't have to be 16 just for impeachment, for example. In fact, I took a look at 17 the -- there is one of the notes to Rule 32 in the Civil 18 Procedure Rules that talks about this very issue. The notes 19 to the 1980 amendment, Your Honor, regarding subdivision 20 (A)(1), it says, and Rule 801(D), 801(D)(2), and that concerns 21 admissions of a party made by those authorized to make them, 22 agents, so forth, make the statements of an agent or servant 23 admissible against the principle under the circumstances 24 described in the rule; that is, in 801(D)(2). The language of 25 the present subdivision, Rule 32, that is, is therefore too GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 18 1 narrow. 2 So what you really have to look at here in terms of 3 admissibility is whether or not this is hearsay. It's not 4 hearsay, because these statements by these people acting under 5 authority for the very thing that's at issue in this case, the 6 admissions policy, those are admissions. 7 And that's, I think, made very clear, Your Honor, if 8 you look at 801. 801(2)(D), admissions by a party opponent, 9 the statement is offered against a party and is, D, a 10 statement by the party's agent or servant concerning a matter 11 within the scope of the agency or employment made during the 12 existence of the relationship. 13 There is just no question, and I don't think it 14 matters who these people were at the time of the deposition, 15 the question is, what were they doing, what statements did 16 they make and what were they testifying about, and that 17 concerns a time period and decisions they made when they were 18 acting under the authority of the law school with respect to 19 these admissions policies. 20 I don't think there is any question, Your Honor, that 21 these are admissions and for that reason alone they are 22 admissible without regard to Rule 32. 23 Just as a matter of fairness, Your Honor, I just 24 can't imagine that given the course of the conduct here that 25 there wasn't some obligation by the Defendants to raise this GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 19 1 easily curable matter. And as I said, it can still be cured. 2 They can bring them tomorrow, we will simply ask the 3 questions, read the answers, and that's the end of it. That's 4 all we want to do with these folks. That's all we want these 5 depositions for. 6 MR. PAYTON: Your Honor, I believe Mr. Kolbo 7 misspoke and I just want to correct something he said. He can 8 stay here if he wants. 9 He said that in the pretrial, original pretrial, 10 there was no mention of any objections and that there was a 11 supplemental pretrial that was filed on the first day of trial 12 and we snuck something in on him. In fact, the original 13 pretrial did not contain Exhibit B at all, so there is no 14 Exhibit B. It hadn't been done. And Exhibit B is the 15 deposition designations. 16 Exhibit B was completed on the first day of trial, 17 and the point, the reason for the supplemental pretrial, is to 18 include the deposition designations and Exhibit B and that's 19 where this objection comes. It has to come there. 20 THE COURT: Even -- yeah, even if that's true, you 21 don't reserve the right to object to the depositions 22 themselves only, and you talk about excerpts, you don't even 23 talk about the depositions. It says the deposition transcript 24 excerpts on relevance or other evidentiary grounds. 25 MR. PAYTON: But all Exhibit B is is excerpts. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 20 1 THE COURT: That's right. All he is asking, that's 2 my point, all he is asking for is excerpts, and so you're 3 saying that according to the way I read this, is that you're 4 reserving the right as to relevance or other evidentiary 5 grounds such as hearsay, those are evidentiary grounds, but 6 not as to the excerpts themselves. 7 MR. PAYTON: Oh, no, I think we are, and I think 8 that -- I mean, I listened carefully. I think that there is 9 no argument at all that under Rule 32 we would win. I here 10 the fairness point and I hear was he on notice. I think the 11 supplemental pretrial puts him on notice and I think the 12 fairness cuts the other way. 13 MR. KOLBO: Well, Your Honor, the original pretrial 14 order, the one I looked at very carefully and spent a lot of 15 time on it, says this about exhibits: The parties will also 16 file Exhibit B to this joint pretrial order, at the beginning 17 of which is designated deposition transcripts. That's it. 18 At the time this was put together, Your Honor, this is quite 19 some time after we had already identified the deposition 20 designations we were going to use. That again was one of the 21 first things we did. We did it on January 4 and three days 22 later one other deposition. 23 So when this was put together, the University knew 24 what we were planning to do with respect to deposition 25 designations, even if it's not filed here as part of Exhibit GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 21 1 B. That was made plain to them. 2 It wasn't until I received that supplemental, Your 3 Honor, on the first day of trial, that some new substantive 4 language was put in there, and frankly, I didn't look at them, 5 because I didn't think there was going to be any substantive 6 change at that point. 7 With respect to the original pretrial order, Your 8 Honor, again, there is a section on issues of law to be 9 litigated, or I should say evidence problems likely to arise 10 at trial, Section 8. Nothing was suggested there that there 11 was -- and again, at a time when they knew, at a time when 12 they knew that we were going to designate depositions and they 13 knew of every one of those depositions, there has not been one 14 new witness that we have designated since that first week of 15 January, Your Honor. We added a couple more designations 16 within those depositions, but not one new witness was 17 designated after the first week of January as far as our 18 designations. 19 And when this thing was put together, there was a 20 section on evidence problems likely to arise at trial, nothing 21 was said about the possibility of anything arising with 22 respect to any deposition designations. We think that was the 23 time to alert us, we would have easily cured it, and we 24 wouldn't be here today arguing about this. 25 MR. PAYTON: I guess I'm not clear how the rules are GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 22 1 supposed to work. I'm not sure it's my role to say, you know, 2 there may be a problem down the road. We reserved our rights. 3 We have been getting, I think the Court understands, we have 4 been getting additional designations with regard to these 5 witnesses, I think, all the way up to yesterday. You know, 6 it's not like we had the complete list of these, it just keeps 7 coming in, and I think we were entitled to think that at some 8 point we're going to raise all this and sort it out. Now 9 we're trying to sort it out. 10 And to say that we waived everything, they can put 11 anything in, I just think is not true and it's certainly not 12 fair. This is not the way this should be handled, it seems to 13 me, at all. 14 THE COURT: In this matter, the Defendants take the 15 position that none of those depositions -- not none -- those 16 that in their opinion don't fall within the officer/director 17 exception, however, as it would apply to a public institution, 18 the Court believes that Rule 32 was waived by the Defendants 19 for the following reasons: Number one is a letter was sent on 20 January 4 indicating what witnesses they intended to call by 21 deposition, and not the total depositions, but excerpts from 22 those depositions, that at least on this record today there 23 was no letter sent back or objections or anything else filed 24 by the Defendants. 25 At the conclusion of the Plaintiffs' case it was GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 23 1 placed on the record in no uncertain terms that they intended 2 to read into the record or to have the record be part, parts 3 or excerpts of depositions. There was no objection at that 4 time. In fact, there was a discussion at that time on the 5 record concerning that between the Plaintiffs and the 6 Defendants and the Court. 7 Further, the pretrial statement in this matter, more 8 particularly the supplemental pretrial statement, without 9 getting into objections anticipated, anticipated that there 10 was going to be excerpts of depositions that were going to be 11 used in this matter and that the Defendants in that document 12 did reserve their right to relevance and to other evidentiary 13 grounds, but not as to reserving their right under Rule 32 to 14 actually calling the witnesses themselves. 15 And I think it's very clear on this record that that 16 was at least -- I can't tell you what is in anybody's mind, 17 but I can tell you that if you just read the documents and 18 read the records and so forth, the record and so forth, that 19 was what appears to be anticipated by the parties. 20 I agree that it was an unusual way of doing things, however, 21 the parties had been getting along very well on a professional 22 level and had stipulated throughout the whole proceedings to 23 lots of things that in other cases may have been unusual, and 24 as I think I have indicated on many occasions, there has only 25 been one substantive dispute in terms of discovery that I was GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 24 1 aware of that I had to decide and it was one the parties 2 couldn't decide, because it involved third parties. 3 But I think it's very clear and at this point it would be 4 unfair to not, at least the ones that were on notice, and 5 those are the ones that are contained in the January 4 letter, 6 and also the Exhibit B, and therefore, the Court will allow 7 those to be designated. 8 Now, as to the evidentiary objections, as to the 9 relevance and the hearsay, those, I haven't seen those yet, so 10 it would be hard for me to rule evidentiary on something that 11 I haven't actually seen at this point; however, the Court 12 will, when I have a chance to see them, will determine, number 13 one, the relevance, and number two, the hearsay objection and 14 give it as much weight as it needs. I just can't do it at 15 this point, because I haven't seen them. I couldn't tell you 16 if it's relevant, I couldn't tell you if it's -- but at least 17 as to those, there was also always anticipated that there 18 would be cross designations by the Defense. 19 And now again, I don't have a copy of it right in 20 front of me of Appendix B to the supplemental joint pretrial, 21 so I'm not sure if that contained cross designations or not, 22 but if it did, that's fine, if it didn't, I think the 23 Defendants would be allowed to cross designate, of course. 24 Okay. Mr. Payton? 25 MR. PAYTON: I think this is just a clarification. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 25 1 We raised a relevance objection in connection with Professor 2 Cooper's deposition, as well. He not only, we thought, was 3 not within Rule 32, but the testimony that they are trying to 4 elicit from him, we think, is irrelevant to any issue in this 5 case. It's about things that happened pre1992 policy. 6 THE COURT: I agree with you. I think from reading 7 your response and nothing else, because I haven't read those 8 depositions, I think that's probably a lot of stuff in there 9 that's irrelevant. The pre '92, the -- you know, the -- I 10 mean, I don't want to rule at this point, but assuming that at 11 least what you have put into your very limited Pleadings, 12 because you haven't had any time to put more into there, I 13 have to agree with you that there appears to be lots of stuff 14 that's not relevant, but I can't rule on that until I see it 15 and I was -- you know, when I see it I will give that which is 16 relevant some credence and that which is not relevant no 17 credence, that which is hearsay no credence, and that which is 18 not hearsay as much weight, if any, as it deserves, but I 19 happen to not totally disagree with you. If it's pre, I'm not 20 -- that's not an issue before me. 21 MR. PAYTON: Okay. And there are issues regarding 22 documents. How do you want to proceed with those? 23 THE COURT: Well, the documents are a little bit 24 more difficult to deal with, because I guess we're going to 25 have to, you know, deal with them. I don't know how else to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 26 1 deal with them, unless you can sit down and agree. I can tell 2 you right now that I don't know what was anticipated. Let me 3 hear from the Plaintiffs for a second. The things like the 4 draft of Exhibit 4, with no kind of foundation, I probably 5 wouldn't allow it in even if it went to trial, because there 6 would be no foundation, but let me hear from them. 7 MR. PAYTON: Let me just raise one other issue, 8 which I can't remember if I said this at the beginning. If I 9 did, I apologize. Stillwagon, Goodman and Heriot, we have 10 agreed, are not being offered by anybody at this point. 11 THE COURT: Oh, okay. Good. Stillwagon? 12 MR. PAYTON: Stillwagon, Heriot and Goodman. 13 MR. PURDY: They are withdrawing Heriot and 14 Goodman's portions, we're withdrawing Stillwagon's portion, 15 Your Honor. Let me just say we had a discussion and with 16 regards to the documents that are part of all of these 17 submissions, we had a discussion Wednesday and Counsel made 18 very clear to us they lifted their objection to those 19 documents being considered by the Court. I think the Court 20 has already said the Court will look at them and give them 21 whatever weight, relevance, the Court may deem appropriate. 22 THE COURT: If there is no objection, we will 23 receive them. 24 MR. PAYTON: That's fine. 25 MR. PURDY: So those have been lifted, so those will GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 27 1 simply be part of the designations, we would assume. If and 2 when the Court looks at them for whatever purposes, it will 3 make its own determination as to whether or not they are 4 relevant or relate to any of the issues that the Court will 5 decide and we will all -- obviously the parties will live with 6 that, but there should be no dispute now that those documents 7 that are part of those designations are in, and we made every 8 effort to lay the foundations so the Court would understand 9 what those documents were. 10 MR. PAYTON: Although, just -- I don't think he is 11 going to disagree, if Cooper's deposition is not in, then all 12 the documents that relate to Cooper's deposition are not in. 13 THE COURT: Yes, I don't think there is any -- 14 because it would be an impossibility for any kind of 15 foundation. 16 MR. PAYTON: That's right. 17 THE COURT: Okay. 18 MR. PAYTON: Two other things. We're done with 19 this. 20 MR. PURDY: Well, let me just -- Judge, just so it's 21 clear, because we don't want any more misunderstanding. 22 We understand that if the Court were to determine that 23 something that Dean -- Associate Dean Cooper, at the time, 24 because that's the relevant time period, he was serving as 25 Associate Dean, wrote some letters that postdated the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 28 1 admissions policy in question, those are principally what 2 we're talking about, so I mean, they are either relevant or 3 they're not. We don't know how they couldn't be, but 4 certainly if the Court determines that something he said is at 5 a time period which is irrelevant about a document which the 6 Court also -- a document that the Court also determines is 7 irrelevant, we understand that, but -- 8 THE COURT: But I think the issue was, if there is a 9 document that went with -- is it Dean Cooper -- I'm not 10 familiar with -- 11 MR. PURDY: Yes, sir, Associate Dean. 12 THE COURT: That went with his testimony, then that 13 wouldn't be admitted, because -- 14 MR. PURDY: Well, if his testimony weren't admitted, 15 obviously -- 16 THE COURT: Then his document wouldn't be. 17 MR. PURDY: Sure. Okay. 18 THE COURT: I think that's what Mr. Payton was 19 saying, just to make sure there is -- 20 MR. PURDY: That's all. 21 MR. PAYTON: I have a couple of housekeeping things. 22 We used an exhibit that we had drawn, that Professor 23 Raudenbush had drawn, we reduced it to an eight and-a-half by 24 eleven form. I think the Plaintiffs don't have a problem with 25 it. We will submit it. I think it's Exhibit 228. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 29 1 THE COURT: Great. 2 MR. PAYTON: We will just do that. It's somewhere 3 here. 4 MR. DELERY: Actually, we are making one small 5 change at their request. 6 THE COURT: Whenever that comes in, just make sure 7 we have a copy and then somebody keep his original just in 8 case. 9 MR. PAYTON: We will do that. And there are two 10 other things, Your Honor, that are requests, both on my 11 behalf. I don't think there is going to be an objection. 12 First is, the Court asked for a submission of a 20-page paper 13 within ten days. I request that we be given 30 pages. This 14 is a very complex case and 30 pages -- 15 THE COURT: Anybody have any objection? 16 MR. KOLBO: No. 17 MR. PAYTON: There was a related -- 18 THE COURT: The reason I'm kind of smiling is, at 19 the time I said 20, I thought there would be -- there would be 20 some negotiations. There were some negotiations on the date 21 and I knew I didn't have a lot of time on that, because I 22 wanted to do something, and then I never heard anything on it, 23 so it's funny. Yes, 30, I have no problem with that. 24 MR. PAYTON: Mr. Kolbo wanted to make it plain that 25 30 means 30 and that we, none of us, can file a motion for GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 30 1 additional pages. I think we all agree with that, 30 pages is 2 30 pages. 3 THE COURT: There is no time to file motions. 4 MR. PAYTON: The ten days, we wanted to come up with 5 an actual date so that there is no confusion about that. I 6 think we all have assumed that ten days would be the 26th, 7 which is a Monday. We ask that it be Tuesday. 8 THE COURT: Tuesday is fine. I thought it was the 9 26th, too, and Tuesday is fine. 10 MR. PAYTON: Tuesday is fine. And then finally, I'm 11 asking if we can have a little latitude tomorrow. I 12 understand the Court said 45 minutes, sometimes I talk fast, 13 sometimes I talk slow, and if I run over by a couple of 14 minutes or any of us run over by a couple of minutes -- 15 THE COURT: I'm not going to ever -- I'll tell you 16 when the 45 minutes are up and you can have five minutes to 17 wrap it up. By that time, we're not in a gigantic hurry. 18 MR. KOLBO: Your Honor, just so I understand 19 something, do I understand the Court is accepting the 20 designations, subject to the Court's determination about 21 relevance and things like that? 22 THE COURT: That's correct. 23 MR. KOLBO: They are going to be admitted and 24 considered by the Court? 25 THE COURT: That is correct. And the cross GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 31 1 designations. 2 MR. KOLBO: And the cross designations, certainly. 3 I don't know if now is the appropriate time, but we 4 Received yesterday some designations from Intervenors for 5 Claude Steele and I think we were told there are going to be 6 others. I haven't seen them yet. 7 We have a great deal of concern about getting 8 designations for the first time at this late hour, Your Honor. 9 We haven't got the time to cross designate. We think with 10 respect to Steele, Your Honor, he was an expert, he should 11 have been called as an expert, as experts are always called. 12 I understand there were proceedings about that, but using his 13 deposition, we think, Your Honor, an expert of the 14 University's deposition used by the Intervenors, we think it 15 is inappropriate and we think it is just too late at this 16 point to be doing this. 17 MR. PAYTON: I have got to just -- I think he 18 misspoke again. If, in fact, former Dean Cooper is determined 19 to be not relevant, then I think the Court will look at that 20 and say, he is not in. If he is not relevant, he is not 21 relevant and he doesn't come in. I'm not making a relevance 22 argument about the other faculty members. They clearly -- 23 we're not arguing about their relevance. We're arguing about 24 whether or not they should come in at all. But Dean Cooper is 25 talking about events that predate -- GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 32 1 THE COURT: I thought they said they were 2 withdrawing Dean Cooper. 3 MR. PAYTON: They didn't say that. 4 MR. KOLBO: Stillwagon. 5 MR. PAYTON: All I'm saying is if Dean Cooper is 6 irrelevant, then he shouldn't come in. You have to look at 7 that to determine that, but if he is not relevant, he is not 8 in. 9 THE COURT: Absolutely. And he very well may not 10 be. I haven't seen it yet. 11 MR. KOLBO: And it just seems to me, Your Honor, 12 there could be portions that the Court might consider 13 irrelevant and portions that might be relevant, for example, 14 particularly, letters and comments written after the policy. 15 MR. PAYTON: Sure. Sure. 16 THE COURT: I'll take a look at it. Okay. 17 MS. MASSIE: Good morning, Judge. We do have some 18 designations that have been filed here in the joint notice at 19 Tab C. 20 THE COURT: Of what? 21 MS. MASSIE: It's the joint notice regarding trial 22 exhibits and deposition designations and it's Tab C. 23 THE COURT: Oh, Tab C of the -- 24 MS. MASSIE: Right. And I don't know if you -- 25 THE COURT: I have it. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 33 1 MS. MASSIE: -- have had a chance to look at those 2 at all. 3 THE COURT: Doesn't make a difference, because they 4 are all just pages, but go on. 5 MS. MASSIE: Okay. On Professor Steele, I think his 6 deposition clearly comes within the rule. He is beyond our 7 subpoena power, as we know from the proceedings which happened 8 before, and he is out -- he is out of the district. He is 9 more than 100 miles away from the Court. I just don't think 10 there is any question that his testimony by deposition is 11 admissible. The Plaintiff was there, was taking the 12 deposition, had the opportunity to develop the record. 13 As we have talked about before, Professor Steele's work is 14 really very essential to understanding how race and racism 15 affect academic performance and I think it will help the Court 16 reach a determination very, very much. I just don't think 17 there is any basis for the Plaintiffs' argument against the 18 inclusion of the deposition of Professor Steele. We have some 19 other designations there, as well. I'm not sure -- 20 THE COURT: What's Plaintiffs' position as to the 21 other ones, first? 22 MR. PURDY: Your Honor, I'll address this, and I 23 apologize, I sent Mr. Kolbo up to finish up one subject and we 24 went to the other. 25 Your Honor, first and foremost, these are -- we just GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 34 1 got these, and so I think that this is not the time to be 2 providing designations. This was supposed to be done as part 3 of the pretrial, before trial, and that's the first, that's 4 the first subject, so we clearly have not had a chance to go 5 through. And even if the Court were to admit this, we would 6 want the opportunity to cross designate, but the other thing 7 on -- let me just deal with Dr. Steele first. 8 Dr. Steele is an expert for the University and this 9 Court has already heard a lengthy dispute between the 10 Intervenors and the University over the Intervenors' efforts 11 to try to get the testimony of Dr. Steele and the Court made a 12 ruling and said he wasn't going to testify. It's highly 13 unusual, if not unprecedented, Your Honor, I'm not aware of a 14 situation where another party designates the opposition's 15 expert and then is now permitted to read in testimony. 16 The problem we have here is, I believe, although I 17 haven't gone through these lengthy designations that we just 18 received, that they're probably attempting to get Dr. Steele's 19 report into evidence, and clearly, it's been -- one of the 20 things that we have all been proceeding under is if you want 21 to get an expert's report into evidence, bring the witness 22 here so that the witness can be subject to cross examination 23 at the time of trial about that, about that report. 24 That, of course, wasn't done and you as the Court 25 noted that the Intervenors had an opportunity, if they so GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 35 1 chose, to go out and take their own deposition of Dr. Steele 2 and develop a record or to develop a deposition for the 3 purpose of trial and they didn't do that. 4 And now, yesterday, we get these designations for 5 the first time concerning Dr. Steele and so we think, A, they 6 are untimely, B, it's improper to attempt at this late date to 7 get an expert report in through this method, and so we would 8 object on that ground. 9 And finally, Your Honor, with regard to the others, 10 we haven't even begun to go through any of those. I will tell 11 you, I mean, we took the depositions of several of these 12 people, but the Intervenors have chosen not to call these 13 witnesses, and so we -- at this time, to suddenly designate 14 them as opposed to having done this early in the case, when we 15 could have potentially had the opportunity to cross designate, 16 we just think it's untimely. So we object, Your Honor. 17 MR. PAYTON: Your Honor, just on the Professor 18 Steele point, we have no objection to his deposition being 19 designated. We actually think that this is the appropriate 20 way that the Court suggested he could come in. He is outside 21 the jurisdiction, but we have no objection. 22 MS. MASSIE: Judge, if I might. 23 THE COURT: You may. Hold on one second. Can you 24 get my local rules? 25 Hold on just one second. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 36 1 MS. MASSIE: Sure. 2 (Brief pause.) 3 THE COURT: Okay. Go ahead. 4 MS. MASSIE: Is there a question on the local rules 5 that you want us to address? 6 THE COURT: The question on rules, my first question 7 is, I think the rules provide that you have to designate prior 8 to the -- to now. 9 MS. MASSIE: Well, on Professor Steele in 10 particular, if I can address that, we anticipated that he 11 would be testifying until into the trial. As you know, we 12 tried to get him here, and that did not work out, but I think 13 that we didn't designate because we expected him to be here. 14 As to some of the other people, we had a 30-hour -- 15 THE COURT: The truth of the matter is that at the 16 beginning of the trial he wasn't listed as a witness on your 17 witness list or anything. 18 MS. MASSIE: He was. 19 THE COURT: Oh, was he? 20 MS. MASSIE: He was. He was. He was. He was on 21 the University's will-call list. 22 THE COURT: No, but on yours. I'm talking about the 23 Intervenor's list. 24 MS. MASSIE: No, that's right, because we -- in the 25 local -- we were relying on the provision of the local rules GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 37 1 that says any party may call another party's will-call witness 2 without further notice. 3 I'm not trying to rehash all that, I'm just saying 4 we expected to have his testimony before the Court and told 5 the Plaintiff that we intended to do some deposition 6 designations on Tuesday, when we all got together, from 7 Professor Steele's deposition and also some of the other ones. 8 In part, we have been operating under the 30-hour time limit 9 that the Court imposed on each side in the case, and so we 10 have used some of the designations as a substitute for calling 11 people we otherwise would have called absent that limitation. 12 And I have told the Counsel for both parties, and I 13 think even said on the record, though I'm not positive about 14 that, Judge, that we were a bit behind on our designations, 15 but we were working on them. I'm sorry that they come late, 16 but they have the time to cross designate now. Obviously, 17 they can cross designate. 18 And on Professor Steele in particular, we had every 19 -- we expected him -- we had every expectation that he was 20 going to be here. The University is not the opposition, as 21 Mr. Purdy puts it. We didn't agree about that one issue, but 22 they do agree that the deposition can come in, the 23 designations can. They do include the report. 24 Mr. Purdy took a very lengthy deposition of Professor 25 Steele and had the opportunity to cross examine him on his GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 38 1 report and develop the Plaintiffs' record and there is just no 2 basis to our mind under Rule 32 why those deposition 3 designations should not come in. 4 He's really -- Professor Steele's thought on these 5 questions will assist you. He is a tremendous scholar and a 6 tremendous student of the impact of race on things like test 7 scores and grades, and I just think it would be a terrible 8 thing for the Court to try to approach the resolution of these 9 issues without having the benefit of his work. 10 THE COURT: How about the other two witnesses? 11 MS. MASSIE: I'm sorry? 12 THE COURT: Don't you have -- 13 MS. MASSIE: We have several others. 14 THE COURT: I thought there were three all together. 15 MS. MASSIE: No, we have several others, and these 16 are largely -- there were several -- the parties had listed 17 people who had already been called and testified at the trial. 18 We did the same thing. I understand the Court's position is 19 that that is -- that those designations are not coming in as 20 to people who did testify. We had designated some sections of 21 John Hope Franklin's and Faith Smith's depositions, and as the 22 Court's position is that trial -- that the depositions of 23 trial witnesses don't come in, then we accept that. 24 The other people are -- Eric Brooks is the -- was the 25 only black student at Boalt Hall at the UC Berkeley School of GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 39 1 Law the year after affirmative action was limited there. 2 There are several law professors who testified as fact 3 witnesses on the interactions that they had seen in the 4 classroom. There is Ted Shaw, who is on the admissions 5 committee, the '92 committee that came up with the policy, and 6 I think that -- no, one more person, Marlin Whitley, who was a 7 black student at University of Texas School of Law who had 8 testimony to offer the Court about the impact of eliminating 9 affirmative action on his legal education. 10 And those are people, excepting Ted Shaw is in a 11 different kind of category, those are people we would have 12 called, but for the 30-hour limit, and we thought we could 13 expeditiously get their testimony before the Court just by 14 designating sections of their depositions. We told Counsel 15 about it several days ago at the meeting that we had and 16 didn't hear anything from them then on it. 17 MR. PURDY: Briefly, Your Honor, as Counsel says, we 18 had our first discussion about this two days ago when we 19 learned about the Intervenor's interest in designating 20 portions of depositions, and again, we believe that's out of 21 time. 22 Let me address specifically Mr. Shaw. Mr. Shaw was a 23 member of the faculty committee. We didn't -- the University 24 has objected to his designations. We will say that we will 25 not object to Mr. Shaw's designations, and in fact, we will -- GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 40 1 if the Court wants to provide Ms. Massie the opportunity to 2 put Mr. Shaw's deposition testimony in, all we would ask is 3 for leave to provide cross designations, and we will be happy 4 to, but the University is who has objected to that. 5 Let me address Mr. Steele specifically -- Dr. Steele, 6 pardon me, Dr. Steele specifically. 7 One of the problems, she does talk about Dr. Steele 8 and how he is an expert in certain areas, and of course, what 9 happened as the Court is well aware, we heard much testimony 10 after the Court's ruling from several other witnesses who then 11 attempted to -- several other experts who attempted to get 12 into Dr. Steele's work quite a bit, but here's the problem, 13 Your Honor: There are several studies since Dr. Steele 14 published his work that go contrary to Dr. Steele's work. 15 There are two studies from Educational Testing Service in 16 1998, both of which do not confirm Dr. Steele's work. There 17 is a study that has just been publicized in the Journal of 18 Blacks and Higher Education in the Autumn volume of 2000, Your 19 Honor. This is not the -- 20 THE COURT: The issue, though, is not -- again, it's 21 not substantive, it's not a what he has to say or not to say 22 issue, the issue is whether or not it's permitted under the 23 rules. That's the issue right now. What he has to say, I'm 24 not going to exclude him for what he does or doesn't have to 25 say. I'm going to either accept him because the rules allow GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 41 1 for his acceptance or I'm going to reject him because the 2 rules allow for his rejection. 3 MR. PURDY: We believe the rules would not permit 4 his acceptance, simply because at this time it's too late to 5 be submitting it, Your Honor. 6 THE COURT: If that's the only reason, then the 7 Court will allow both sides to, within the realm of what they 8 have here to designate, and will also allow enough time so 9 that each side can cross designate, if that's the only reason. 10 I can't get into the substance, because that wouldn't be fair. 11 Then I would be ruling on whether his substance is good or bad 12 without ever having read it. 13 MR. PURDY: Fair enough. That's fine. 14 THE COURT: So each side was there to take his 15 deposition, as well as the rest, and each cross designate, and 16 submit it to the Court. 17 MS. MASSIE: Thank you, Judge. 18 MR. PURDY: I'm sorry, did you address the other 19 witnesses? 20 THE COURT: Well, the other witnesses, I did, but 21 I'll listen to any argument. I didn't hear your argument on 22 the other ones. 23 MR. PURDY: The only question about those other 24 witnesses is that we received those, in fact, we just received 25 those designations. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 42 1 THE COURT: We will give you a chance to cross 2 designate, so you can't -- and just again, you know, just so 3 everybody understands, some of those sound pretty much 4 cumulative, and if they testified, I perhaps wouldn't have let 5 them testify, but cumulative is better than nothing, so. 6 MR. PURDY: We assume that the Court is using the 7 same standard. 8 THE COURT: Exactly the same standard. 9 MR. PURDY: Not ruling on relevance or -- 10 THE COURT: Not ruling on relevance, not ruling on 11 hearsay, all those other, and cumulative. 12 MR. PURDY: Yes, sir. 13 MS. MASSIE: Thanks, Judge. 14 THE COURT: Any other outstanding issues on this 15 matter? Everybody understand exactly what's going to happen? 16 We have a meeting of the minds now? 17 We still have one other issue and I'll raise it and 18 we will do that maybe later this afternoon, your motion in 19 terms of the record in terms of the expert reports and so 20 forth, which is sitting right here. Instead of taking the 21 time this morning, let's get our witnesses going and we will 22 have a break or something. 23 MR. PURDY: Okay. 24 THE COURT: We will take about ten minutes and we 25 will start. I have to go give some Grand Jury certificates GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 43 1 out. Today is their last day and I'm in charge of Grand Jury, 2 so I like to see them on the last day, so. 3 (Recess taken at 9:2 a.m.) 4 (Back on the record at 9:4 a.m.) 5 THE COURT: Okay. Your next witness? 6 MS. MASSIE: Professor Rick Lempert, back as an 7 expert. 8 THE COURT: How are you today? 9 THE WITNESS: Good. 10 R I C H A R D L E M P E R T , 11 Was thereupon called as a witness herein, and after having 12 first been duly sworn to testify to the truth, the whole truth 13 and nothing but the truth, was examined and testified. 14 MS. MASSIE: Before we get started, if I could have 15 marked, and I left you guys copies of this, it's the final 16 copy, the published version of Professor Lempert's report, 17 which was not included in the binder, an earlier version was, 18 as Exhibit 230, and I'll move it in in a moment. 19 THE COURT: And remove the other ones? 20 MS. MASSIE: That's fine. There are two other ones. 21 Now 165, which is the original expert report, which includes a 22 very short version of the article, there is 166, which we have 23 no use for, and now there is 230. So 166, I don't intend to 24 move in at all. 165, I do. It contains the CV and so on. 25 THE COURT: All right. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 44 1 DIRECT EXAMINATION 2 BY MS. MASSIE: 3 Q We heard a bit about your education when you were here 4 previously, Professor Lempert. Let me just review a couple of 5 things and add a couple things. 6 You have been teaching law for 32 years at the 7 University of Michigan? 8 A Yes. 9 Q And you have been teaching sociology for about 16? 10 A Actually, I was teaching a lot of sociology in the law 11 school, but I have been a member of the Sociology Department 12 for about 16 years. 13 Q You have been -- and you teach the sociology of law, 14 that's your specialty? 15 A I do, yes. 16 Q And that's what you write in? 17 A Among other areas. 18 Q You've received numerous professional honors? 19 A Some. 20 Q A Russell Sage Foundation Fellowship. You were elected 21 Chair of the Sociology of Law Section of the ASA, the American 22 Sociological Association, which is the principal organization 23 for your profession? 24 A Yes, or at least one of them. 25 Q You were a Fellow at the Center for Advanced Studies? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 45 1 A In the behavioral sciences, yes. 2 Q And you published a study that we're going to be talking 3 about today which was peer reviewed on minority and white grads 4 at the U of M Law School? 5 A Yes, along with two colleagues. David Chambers and Terry 6 Adams and I published the study. 7 Q And it was published in the Journal of Law and Social 8 Inquiry? 9 A Yes. 10 Q Can you tell us what that journal is? 11 A It is a peer review journal. It's the Journal of the 12 American Bar Foundation, and in the field of law and social 13 science, one of the two most prestigious journals, along with 14 the Law Society Review. 15 Q You served on the Law School Admissions Council Committee 16 on Test Development and Research at some point? 17 A At a number of points, actually. I have been on at least 18 for a number of terms and at least two separate occasions, 19 maybe three. 20 Q And in that connection, did you do any work on the bar 21 passage study which LSAT conducted in the early '90's? 22 A Well, I actually was on the committee when we authorized 23 it and spent a lot of time discussing methodology and the 24 goals. Linda Wightman at that point was a staff member to the 25 committee, so I had a number of conversations with Linda about GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 46 1 that particular study and had some minor input in actually 2 questionnaire design, because I got questions as a committee 3 member and made some suggestions. 4 MS. MASSIE: Judge, I would like to offer Professor 5 Lempert as an expert in law and sociology and also offer 6 Exhibit 230, move that into evidence, as well as 165. 7 THE COURT: Any objection? 8 MR. PURDY: No objection. 9 MR. GOLDBLATT: No objection, Your Honor. 10 THE COURT: Received, and he may testify as an 11 expert. 12 MS. MASSIE: Thanks, Judge. 13 BY MS. MASSIE: 14 Q Tell us about your team on this study, if you would. 15 A Well, it's a terrific team. David Chambers is a 16 colleague of mine of long standing, and when we hired him, and 17 he has become an outstanding empirical researcher on legal 18 issues, beginning with a study of what makes fathers pay child 19 support in the State of Michigan. He has gone on in both the 20 area of family law and the legal profession to be, I think, one 21 of the country's leading figures in that area. He has done a 22 number of empirical studies on lawyers, particularly working 23 with data about Michigan graduates. 24 Terry Adams was actually a student in a class I 25 taught many, many years ago, longer than I think either of us GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 47 1 wants to remember, and has advanced work in political science. 2 And he has been working for a number of years, my guess would 3 be close to 20 or so, at the Institute for Social Research, 4 which is perhaps the preeminent survey research organization 5 in the academic world. He has done many things at the center. 6 He has worked very closely with David before we collaborated 7 together. He is an expert in data management, at 8 questionnaire development, at various kinds of analyses, has 9 access, also, to all the staff at ISR when we have questions 10 that we may not know all the answers to and just terrific to 11 work with. 12 Q Tell us what the point of the study was. 13 A The point of the study. The point of the study is that 14 even though law schools have been engaging in affirmative 15 action for about 30 years now, no one had ever really looked at 16 what happens after law school, when people get into practice, 17 and no one had looked at how ethnic status may play out in 18 practice, whether credentials that people were admitted on 19 relate to practice success and the like. 20 Both David and I, and I think David and Terry 21 separately, have had very longstanding interests in this 22 issue. David and I many years ago contemplated some research 23 on the matter and actually applied for a grant, but at that 24 time we didn't get it. It was, I think, too large a grant. 25 And Terry and David have been working with our GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 48 1 alumni study data for many years, and one of the issues that I 2 think has long concerned them has been how the minority 3 students as a subgroup do in law practice. 4 Q So it wasn't this litigation that prompted the 5 undertaking of the study? 6 A We began planning the study about a year before suit was 7 filed in this case. 8 Q What was the study's basic methodology? 9 A It is basically a survey study, a study which in this 10 case didn't draw a sample of our minority graduates, but in 11 fact took the population of minority graduates, that is, every 12 graduate who belonged to actually four minority groups we could 13 identify, Asian Americans, Native Americans, Hispanics and 14 blacks, and then took a stratified sample of white students. 15 It sent them questionnaires with very careful, I 16 mean, two follow-ups with incentives to respond, and then with 17 very careful analysis of our respondents to be sure that the 18 sample we had gotten back was not biased in any way that would 19 call the results of our study into question. 20 The specific methods that were used after the data 21 were entered were standard statistical methods, including a 22 lot of tabular analysis, including ordinary least squares 23 regressions and logistic regression. 24 Also, I think as part of the methods, though not 25 technical methods, there are two things I guess I want to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 49 1 mention. The first is that when you work with large data sets 2 there can be random error, and if you do lots and lots of 3 exploring of your data you might find that a particular model 4 takes advantage of that random error and gives you the results 5 that you hope to find. We didn't do any ransacking of the 6 data of that sort. Partly, it's -- I just don't believe in 7 that, because I think it does invalidate or potentially 8 invalidate your results. 9 We specified our measures, virtually everything 10 theoretically beforehand, but then we did a lot of sensitivity 11 checking, because the other aspect of our methods which was 12 really a lot of fun in working with David and Terry is that, 13 and we all have the same philosophy, we sort of took it upon 14 ourselves to try to tear down our results to see how robust 15 they were. 16 So we would say, what would happen if you controlled 17 for gender, for example, and so we then did that, and we 18 basically mentioned anything at all that was salient that we 19 found. So we were approaching this, even though by the time 20 we analyzed the data suit had been filed, as social scientists 21 trying to get at the truth and the facts. 22 Q Are you satisfied that you did that? 23 A I'm quite satisfied with the results of this study, that 24 they are a fair analysis of the data, that they are not 25 affected in any significant way by nonresponse, that they take GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 50 1 no advantage of any random error in the data beyond what's 2 revealed by significance tests. So yes, I am. 3 Q Summarize for us -- obviously, we're going to be going 4 into some detail, but if you could summarize for us the 5 findings of the study. 6 A Well, there are actually lots of findings of the study 7 and they range from how people felt about their law school when 8 they were in it by minority status, to what jobs people take 9 and what they have now, to clerkships and bar passage, 10 financial support, and then to effects of various factors on 11 outcomes in practice, but if I had to summarize the core 12 findings, in my mind the most interesting findings, they are 13 two. 14 The first is, that by the measures of success that 15 we were able to develop, and we used three different -- we 16 actually used a number of different measures, but in the 17 regression framework we use three, minority graduates do every 18 bit as well as white graduates when it comes both to their 19 incomes and to their satisfaction with their careers, and in 20 fact, when you have a controlled analysis they do a slight but 21 significantly greater amount of service, of giving back to the 22 profession than our white graduates. 23 The second core finding is that even though LSAT 24 scores and undergraduate grade points, which I'll refer to as 25 hard credentials, or when I want to refer to them together as GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 51 1 index credentials or index scores, that even though the index 2 does predict in a reasonable way to the final law school grade 3 point average, it has zero predictability when it comes to 4 predicting to income, to satisfaction or to service that's 5 done by people. 6 Q Turning to those findings, let me tell you I'm going to 7 take them generally in the order of questions, things you found 8 out about the experience of law school, and then professional 9 paths people take, and then turn to your three indices of 10 success. 11 A Yes. 12 Q The satisfaction, income, and community service. But let 13 me just ask you a general question. 14 Coming out of the United States Supreme Court's 15 decision in Sweatt versus Painter, the original law school 16 desegregation decision, the Supreme Court stressed how much, 17 how many benefits there were to attending a school like the 18 University of Texas Law School, that separate could not be 19 equal in that context. 20 Do you have anything in your study that bears on 21 that question? 22 A Yes, we do. I'll comment. Let me just say one word by 23 way of preface, Your Honor. 24 THE COURT: Sure, please. 25 THE WITNESS: To avoid being tedious, you have in GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 52 1 front of you tables, either my study or separately, that refer 2 to all this. I will simply try to summarize verbally the 3 findings rather than take the Court through them. 4 THE COURT: I appreciate that. 5 THE WITNESS: If there is anything you want me to 6 elaborate on by pointing to a table, I'll be happy to do that. 7 THE COURT: That's great. And I will assume you 8 have all the tables to back this up? 9 THE WITNESS: And if not, I'm sure on cross 10 examination that will come up. 11 THE COURT: They will catch up to you. I appreciate 12 that. 13 THE WITNESS: Yes, the data here are in Table 6 and 14 in three different ways I think we see -- 15 THE COURT: You know what, can you stop for one 16 second? 17 (Discussion held off the record at 9:54 a.m.) 18 THE COURT: Before you start -- 19 THE WITNESS: This would be a good time, yes. 20 THE COURT: Because I don't want to interrupt, stay 21 where you are. We have got three people that we will just 22 swear in and then we won't have to interrupt you again. 23 (Recess taken at 9:55 a.m.) 24 (Back on the record at 10:07 a.m.) 25 THE COURT: Okay. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 53 1 MS. MASSIE: You know, Judge Friedman, I have been 2 keeping it under wraps because I thought you might want to try 3 and take it back or something, but you actually swore me in, 4 too. 5 THE COURT: Did I really? I wouldn't want to take 6 it back. As I have always told you, though, though you're 7 feisty in the courtroom, you're a good advocate and that's the 8 bottom line. And I only appreciate good advocates. I don't 9 like people that aren't good advocates, so it's -- no, I have 10 always been. In fact, I'm even more proud now, so go on. 11 BY MS. MASSIE: 12 Q I think you were starting to tell us, but forgive me if I 13 repeat something here, Professor Lempert, I think you were 14 starting to tell us about the material that is in Table 6? 15 A Yes, which bears on this question, and really started law 16 school desegregation, Sweatt versus Painter. 17 Q Tell us a little bit about that. 18 A Yes. Let me say this: We asked people a number of 19 questions on a scale of one to seven where seven meant a great 20 deal and one meant none about, oh, a whole host of values and 21 other issues, and we basically take scores of five, six or 22 seven to mean that this is a really important and considerable 23 thing, but a lot of people answered below that, which means 24 there is something going on. 25 But let me just talk about those who said that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 54 1 attending Michigan, for various ways, was of considerable 2 importance to their career in the ways the Supreme Court 3 contemplated attending a leading law school would be. 4 For minority students, between about 25 and 30 5 percent, depending upon the year of minority students, and 6 when I say minority, I mean the three groups that I talked 7 about last time that the committee contemplated as looking at 8 diversity, the Native Americans, Hispanics and the black 9 students, said that friends made at Michigan were important to 10 their subsequent career and success. 11 About 20 percent, just a little bit under, said the 12 contacts made through Michigan, and these could be contacts 13 not just with fellow students, but after they graduated, the 14 kind of old boy, old girl network, hey, we went to the same 15 school, isn't that great, were important to career success. 16 And about 85 percent said that the prestige of the 17 school, just kind of the doors that it opened, were of 18 considerable importance to their career success. 19 And in many of these cases, indeed, for all these 20 cases for our first two decades of alumni, those that had been 21 out the longest, those that graduated in the 1970's and 22 1980's, there was a statistically significant difference, or 23 in one case a marginally significant difference, between our 24 white students and our minorities, such that being able to go 25 to Michigan was perceived by the minorities as more important GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 55 1 to their career success than it was to white students. 2 Q And why would that be? 3 A Well, I think it's because they don't have the same kind 4 of contacts. I mean, just to give a very simple example, it's 5 my understanding that a much higher percentage of our white 6 students than minorities are children of lawyers, so they 7 already have built-in access to networks. Minorities meet 8 lawyers by coming to Michigan, get access to them. Also, to 9 the extent there is discrimination, having this tie can help 10 break down discrimination in the world of practice. 11 Q Did your study make any findings about the quality of the 12 law school experience itself? 13 A Yes. We do look at the quality of the law school 14 experience. That's not one of the tables that has been sort of 15 designated or added, but let me just call your attention to 16 Table 3 in the report. We asked -- 17 THE COURT: What page are you on? 18 THE WITNESS: I'm on page 409. We asked people how 19 satisfied they are with aspects of law school experience, and 20 we find general satisfaction with law school, particularly 21 intellectual and career training and overall. The one area 22 where it is sort of mixed in terms of what I would call 23 considerable satisfaction is in the social life, and we 24 basically see no differences between minorities and whites on 25 that. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 56 1 There is -- in 1970 intellectual satisfaction, 2 the results are similar, 82 versus 89 percent of whites, 3 that's statistically significant, but basically nothing-- 4 everybody tends to be satisfied. And then the one I find most 5 interesting is we asked about the value of the classroom 6 experience, and I don't think any of the lawyers in this room 7 would be surprised that the one thing that was least valued 8 was being called upon in class. But other things, the faculty 9 as teachers, thank goodness, and as scholars, as well quite 10 importantly as classmates' abilities were also valued by a 11 majority, a good majority of the students. 12 Q What does your study have to say about financial aid and 13 race? 14 A Financial aid, Table 7 shows those results, and what we 15 show, a couple of things jump out at you. 16 One thing that jumps out at you is simply the sheer 17 amount of debt which students take on at a school like 18 Michigan. If you have debt, minorities owe on the average 19 $67,600 in the most recent cohort when they graduate; whites, 20 $52,600. 21 The other thing which I think jumps out at you from 22 Table 7 is, contrary to at least some suggestions I have 23 heard, minorities are not being treated, if you will, getting 24 free rides at the expense of whites. Quite to the contrary, a 25 much higher proportion of minorities, 96 percent of those who GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 57 1 graduated in the 1990's have some debt, as opposed to just 71 2 percent of whites, and the burden when they get out as a 3 percentage of their first jobs is much larger. 4 So we have a lot of debt and in every decade more 5 minorities leave law school with educational debts and they 6 leave law school with higher educational debts and with debts 7 that require them to pay higher proportion of their first year 8 incomes. 9 Q Looking at the table here it looks like it's about twice 10 the proportion, about 15 percent of first year income for 11 minority grads goes to debt and about 8 percent for white 12 grads? 13 A That is in the 1990's, yes. That's true in the 1990's. 14 Q How do you explain all those differences in financial aid 15 and debt burden that you just talked about? 16 A Well, debt to a large extent is a matter of need and our 17 minorities generally speaking come from less affluent 18 backgrounds than our white students do. 19 Q How about bar passage, what does your study have to say 20 about bar passage? 21 A Our study finds that Michigan, just not to put too fine a 22 point on it, Michigan graduates pass the bar. It doesn't 23 matter, really, whether you're a minority or whether you're 24 white. In one decade, in the 1980's, I'm not going to bother 25 to look at the table, but I think there might have been a GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 58 1 statistically significant difference favoring whites, but it 2 was substantively sort of completely trivial. It was like 95 3 percent of minorities and 98 or something or 99 percent of 4 whites. 5 Q And did you study -- did your study have any way of 6 knowing whether all the people in the sample had even tried to 7 take the bar? 8 A We don't know that. What we do know is that if you look 9 at those who have not passed the bar, and I have some 10 colleagues, actually, who have not, and indeed for many years I 11 didn't take the bar after I graduated and finally did, but we 12 know that the people or minorities who list themselves as not 13 having passed the bar are actually more satisfied with their 14 careers. I don't think it's statistically significant, but it 15 means there is absolutely no difference or it favors them 16 rather than our minorities who did pass the bar. Maybe they 17 are making big bucks in business or they are teaching or doing 18 other high satisfaction occupations, but they are just a 19 trivial number. 20 Q I want to ask you some questions now about career paths 21 and trajectories and let's start with first jobs. What did 22 your study find about first jobs, including clerkships? 23 A Including clerkships, first of all, this was actually an 24 interesting finding that surprised me a bit. We found that 25 over the years a very increasing and what I think is quite GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 59 1 almost an astonishing large number of our graduates take first 2 positions in judicial clerkships. Looking at the 1990's, 18 3 percent of our minorities and 23 percent of our whites or 4 almost 24 percent of our whites move from law school into 5 judicial clerkships. That is not a statistically significant 6 difference. We can't say as a matter of statistics that our 7 white students are more likely to get clerkships than our 8 minorities, it's within the realm of statistical error. 9 The figures are less for the preceding decades and 10 the earlier decades has marginal significance. You put them 11 together, probably would be a slightly greater tendency of 12 whites than minorities to move into judicial clerkships, but 13 it seems to have closed and increased for both groups 14 substantially in the 1990's. 15 Q And it's a fairly substantial percentage? 16 A I think it's sort of a huge percentage when you consider 17 how selective these are and how difficult they can be to get 18 them. 19 Q Tell us about other first jobs. 20 A First jobs, this is Table 10. In every decade, the most 21 common first job for our students, whether they are white or 22 minority, is the private practice of law, however, the 23 proportion of minorities going into the private practice of law 24 as a first job leaps substantially between the 1970's and the 25 two later cohorts, the 1980's and the 1990's. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 60 1 Whites do tend, in all decades, to be more likely to 2 go into the private practice of law than minorities. 3 Minorities, on the other hand, in all decades are much more 4 likely to go into Government. 5 And in the 1970's, in particular, to a lesser extent 6 in the 1980's, but not in the 1990's, were more likely to take 7 first jobs in legal service or public interest areas. 8 The other thing I should point out, both our white 9 and minority graduates take all kinds of jobs. They serve 10 their profession, they serve people in many, many different 11 ways. 12 Q And how do those job selections shift over time? Do 13 people shift sectors in ways that are comparable across race or 14 how does that work? 15 A The patterns are reasonably similar. If you look at 16 Table 12, which was current jobs, we do have some tables that 17 go into sort of technical shifts, but I think I won't mention 18 them, we can capture this just by comparing Table 12 and Table 19 10. 20 With one exception, there is a strong movement from 21 the private practice of law to other sectors, and surprisingly 22 strong even among the 1990's graduates who haven't been out 23 that long, the movement tends to be to Government and to 24 business. There was substantial movement away from legal 25 service or public interest law by the 1990's alumni, and the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 61 1 19 -- I'm sorry, the 1970's alumni, and the 1970's alumni were 2 the only group, the minority alumni, I'm sorry, the minority 3 1970's alumni, were the only group that actually shows a net 4 move into the private practice of law. 5 Q And how do you explain that? 6 A I think there were hurdles to getting private practice 7 jobs that existed for our 1970's alumni which do not exist or 8 exist only to a lesser extent today. 9 I mean, just to give one very simple example, there 10 were many firms throughout the south that would not consider a 11 black lawyer, you know, in 1970 or 1971 or '72 and those firms 12 are open to blacks now, I think in part because schools like 13 Michigan have been turning out such high quality minority 14 alumni. 15 Q So a school like the U of M has a role in integrating the 16 profession overall? 17 A I think we have had a -- you know, not us personally, but 18 I think the law schools, through affirmative action, and not 19 just Michigan, but I think lots of other schools, Wayne, 20 Detroit, you know, U of D, I think all of these schools have 21 had a role of integrating the profession at all levels. 22 Q Is one -- 23 A And one they would not have had, at least not nearly to 24 the same degree, but for affirmative action. 25 Q In fact, to summarize some of the professional trajectory GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 62 1 findings that you made, it sounds like minority and white 2 graduates were very successful across a range of practice, of 3 law practices? 4 A By our ability to measure success, which includes such 5 things as partnership, promotion, whether you're a managing 6 partner or a managing supervisor in the Government or in 7 business, a General Counsel's office, whether you do certain 8 kinds of service, whether you're satisfied with various aspects 9 of your career, how much you earn, two things can be said, I 10 believe. 11 One is that Michigan graduates tend to be quite 12 successful whether they are white or minority; and the second 13 thing is, there is really no substantial differences in the 14 success of whites and minorities. 15 Q In the different sectors of law practice? 16 A Yes. If we can look -- let me just call your attention 17 to a couple of tables that will illustrate this very quickly. 18 If you look at Table 15 on 432, you see the 19 percentage of minorities and whites who are partners if they 20 are members of firms. Basically, they are the same and they 21 are very high. Almost everybody in the 1970's, and 70 to 80 22 percent in the 1980's, and actually more minorities are 23 partners already of the 1990's graduates. 24 And these differences, I should note, to the extent 25 they do exist, disappear with a simple control for time. They GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 14 THURSDAY, FEBRUARY 15TH, 2001 63 1 are a result of the fact that minority enrollment has been 2 increasing, so minorities particularly in the 1980's have been 3 out less, and when we gave our questionnaire we had more 4 minorities on the cusp of partnership decisions than we had 5 whites. 6 And then if you look at Table 13 on page 430, this 7 looks at lawyers who are not in private practice and whether 8 they are engaged in supervising or managerial positions. You 9 see if they have been out a long time, almost two-thirds are. 10 It goes down. The only significant difference in either the 11 partnership or the supervising attorney tables is this 1990's, 12 where almost an astonishing 14 percent of the minorities and