1 1 UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF MICHIGAN 2 SOUTHERN DIVISION 3 4 BARBARA GRUTTER, For herself and all others 5 Similarly situated, 6 Plaintiff, 7 v. Civil Action No. 97-CV-75928 8 LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF 9 THE UNIVERSITY OF MICHIGAN, 10 Defendants. _________________________________________/ 11 12 BENCH TRIAL - VOLUME 15 13 FRIDAY, FEBRUARY 16th, 2001 14 15 BEFORE THE HONORABLE BERNARD FRIEDMAN United States District Judge 16 Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 238 17 Detroit, Michigan 18 - - - 19 Appearances: 20 Kirk O. Kolbo, Esq., 21 R. Lawrence Purdy, Esq., 22 On behalf of the Plaintiff, 23 24 John Payton, Esq., Craig Goldblatt, Esq., 25 On behalf of the Defendants Bollinger, et al, 2 1 - - - 2 APPEARANCES (Continued): 3 4 George B. Washington, Esq. Miranda K. S. Massie, Esq. 5 On behalf of Intervening Defendants. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Joan L. Morgan, Official Court Reporter 21 Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription. 22 23 24 25 3 1 2 I N D E X 3 - - - 4 CLOSING ARGUMENT PAGE 5 BY MR. KOLBO 4 6 BY MR. PAYTON 33 7 BY MS. MASSIE 67 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 4 1 Detroit, Michigan 2 FRIDAY, FEBRUARY 16TH, 2001 3 9:00 a.m. 4 - - - 5 THE COURT: Okay. Good morning. 6 Just a couple of housekeeping matters. I thought we 7 would put the time -- how much everybody used. The Plaintiffs 8 was nineteen hours, twenty-three minutes and fifty-two 9 seconds. The Intervenors was twenty-eight hours forty-eight 10 minutes. Whoever kept that time didn't keep the time of 11 seconds. And the Defendants was fifteen hours and fifty 12 minutes. If anybody is curious, that's how it was left as of 13 yesterday. 14 Okay. Any other preliminary matters we should talk 15 about before we go into Closing Argument? Okay. Plaintiff? 16 MR. KOLBO: May it please the Court, counsel, Kirk 17 Kolbo on behalf of plaintiff. I want to begin, your Honor, 18 for myself, and my client, Ms. Grutter, and on behalf of our 19 entire team by thanking your Honor and the court for the 20 courtesy you have extended to all the parties and counsel 21 throughout the trial of this matter. Our thanks extends to 22 the Court's staff, to the Marshal's Office, to the court 23 reporters who have taken turns trying to keep up with the 24 lawyers and the witnesses in this case. 25 A trial to some extent is an ordeal and it's been GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 5 1 made less so in this case by the courtesy of the Court and its 2 staff, and extended to all counsel in this case. 3 With respect to my closing argument, your Honor, I'm 4 not going to try to be comprehensive. It's been a long enough 5 trial, that a witness-by-witness, or document-by-document 6 account would neither be practical or useful. Instead, 7 I want to take some time to focus on some themes that seem 8 important and it seem to have reoccurred throughout this case. 9 There are, of course, as the Court knows three issues before 10 the Court on the trial of this matter. And that certainly is 11 what I intend to focus my remarks on. There is also, as the 12 Court knows a fourth issue before the Court concerning whether 13 diversity can ever be or constitute a compelling governmental 14 interest in justifying racial classifications like those 15 involved here. I don't intend obviously, your Honor, to argue 16 that issue this morning because it's already before the Court 17 on motions for summary judgment. But I make the point about 18 that fourth issue that's out there because with respect -- I 19 want to leave it clear here today, of course, your Honor, that 20 we believe although the issue that the Court is trying to the 21 extent of race and the issue of double standard, we believe 22 that we have from the beginning when we filed this case that 23 no consideration of race can ever be lawfully justified with 24 respect to the diversity rational. That Justice Powell's 25 opinion in Bakke with respect to diversity rational is not and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 6 1 never has stated controlling law with respect to this issue. 2 And it may not justify race to any extent with respect to 3 admissions decisions. 4 So we're approaching this issue, your Honor, today 5 with respect to the extent and the double standard, assuming 6 that diversity is compelling, and assuming that Justice 7 Powell's opinion could be controlling in this area. 8 On those issues, your Honor, one and two in this 9 case, there are three issues, of course, I'm going to start 10 out primarily by focusing on one and two, the extent and the 11 double standard issue. I think those tend to be related. And 12 then later in my remarks I want to address the third issue as 13 well. 14 With respect to the issues, your Honor, of the extent 15 to which race is considered, and the double standard, we 16 believe the answers have shown and the evidence in this case 17 are straightforward and clear. Stated plainly race is an 18 enormous factor in the admissions process at Michigan. It is 19 a factor of such size used in the manner so pervasive and in 20 such a systematic matter that it has in effect yielded two 21 different admissions standards: A double standard based on 22 race, based on ethnicity, based on skin color. 23 Having stated that conclusion, simply, your Honor, I 24 want to quickly brush aside a number of arguments that are 25 sometimes attributed to our side of the case but are not, in GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 7 1 fact, our argument. First, we don't contend that race is a 2 dispositive factor in every admissions decision. We don't 3 contend that race is necessarily the most important factor in 4 the admissions process, or that it necessarily is the most 5 important factor in any particular given decision, and we 6 don't contend that the University of Michigan Law School 7 admits unqualified minority students in the sense that they 8 are either unable to do the work, or to graduate, or to go on 9 and lead successful careers. Clearly they do, and we don't 10 contest that issue. 11 But the extent to which race is a factor, and the 12 extent to which it has led to a race-based double standard, 13 does lead, we believe, lead to the following conclusions. 14 First, applicants of different races do not at Michigan 15 compete on an equal footing. The use of the double standards 16 to ensure a critical mass of minority students has led to the 17 systematic exclusion of students who do not belong to the 18 races for which critical mass is sought. And the use of the 19 double standard and the consequences of systematic exclusion 20 have importance attached to critical mass, has all led to what 21 Justice Powell called "systematic exclusion and the functional 22 equivalent of a quota." Race simply is not weighed fairly in 23 the process at the University of Michigan Law School. 24 These conclusions on extent and double standard find 25 evidentiary support, your Honor, we believe in three very GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 8 1 general areas. First of all, the data itself and the 2 statistics. Secondly, in the documentary evidence in the 3 case. And, thirdly, even in the testimony that we received 4 from a number of the law school witnesses. 5 And what I would like to do in the remainder of my 6 closing remarks, your Honor, is to focus generally on these 7 areas, again, not going into everything obviously, but talking 8 about some of the things that we think are important. 9 First, your Honor, with respect to the statistics, to 10 the data, I'm not going to say much more on this, this morning 11 because we may have an opportunity to address some of the 12 specifics on this in the course of our written submissions. 13 There's really not much more I can say, your Honor. You've 14 heard testimony from two statisticians on two occasions, each 15 of them, over a period of about four days. I don't think 16 there's much more I can say, your Honor, that addresses those 17 issues that has not already been said by them, and then in the 18 court transcript. 19 There is a saying, your Honor, I think that some 20 people know many things, and others know one big thing. When 21 it comes to the statistics, to the data in this case, your 22 Honor, when it comes to statistics, formal statistics, I don't 23 know many things, but concerning the statistical evidence in 24 this case, I know one big thing, and that is, that the 25 statistical case makes a very devastating one against the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 9 1 University of Michigan Law School with respect to the extent 2 to which race is a factor in the admissions process, and to 3 the extent to which race is used as a double standard. 4 With respect to that, your Honor, we've had Dr. 5 Kinley Larntz testify, and I'm not going to go into the 6 details of his testimony. You saw him twice, and then you saw 7 Dr. Raudenbush on two separate occasions. Much of what I 8 think the defendants have done with respect to Dr. Larntz's 9 criticism, fall really into the category of academic 10 criticism. They tried to score some debating point that are 11 completely divorced I think from common sense, and from what 12 we know to be important realities at the Law School. 13 They accuse him, for example, of discarding data, of 14 selectively attending the data, suggesting that something was 15 designed to achieve a bias result. This, your Honor, we 16 believe is simply not true. What Dr. Larntz's study has made 17 clear, race is a very important factor at the University of 18 Michigan, and that students of different races are treated 19 differently. And he studied that in a way that demonstrated 20 that in eighty-four to eighty-five percent, for example, of 21 the cells that he looked at in one mode of his statistical 22 analysis, those students fall into categories where there is 23 differential treatment on the basis of race. Now, of course, 24 he's quantified that in a number of respects. 25 One of the things that Dr. Larntz said at the end of GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 10 1 his direct testimony was that all that he showed -- although, 2 he had demonstrated much with respect to inferential 3 statistics, we saw and heard testimony about odds ratios, the 4 probabilities of acceptance, what he said was that really you 5 can see it in the grids. You don't need a statistician, you 6 don't need inferential statistics really to see what's going 7 on here. 8 I think I said something like that, your Honor, back 9 in December in the course of the summary judgment hearings, 10 that we have an expert and we think he's done a fine job of 11 quantifying what's going on at the University of Michigan Law 12 School. But one can see it with the untrained eye. One can 13 see it in the grids. Year-after-year, cell-after-cell, what 14 we see is very, very different treatment for people similarly 15 situated according race. 16 Frankly, your Honor, we believe that is simply 17 obvious, and we're a little bit surprised to the degree that 18 the University has tried to challenge the extent to which race 19 is taken account in the admissions process. 20 My final point, or one of my final points with 21 respect to the statistical evidence, your Honor, I think is 22 also something of an obvious one but I want to make it because 23 I think it's useful. I've been somewhat surprised to the 24 extent to which the University, the Law School, seems to want 25 to have it both ways. They kind of want to have their cake GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 11 1 and eat, too. Almost breathlessly they passed, for example, 2 from a criticism of Dr. Larntz for suggesting that he couldn't 3 quantify the extent to which race is used in the process, for 4 what they say was an exaggeration of the role that race plays 5 in the process, for ignoring the many other factors that are 6 involved in the race process. They criticized him and then 7 pass immediately to their next point which is that race is a 8 very important factor in the admissions process. That it is 9 so important that the work of Dr. Raudenbush, there will be 10 dramatic, sharp, substantial drops in minority admissions, if 11 just this one factor, race was removed and everything else 12 would stay the same. 13 We heard that kind of testimony not just from a 14 statistician, from Dr. Raudenbush, but even from some of the 15 University's witnesses including Dean Munzel who testified 16 that it would be a devastating drop in admissions if just that 17 one factor was taken out. We think it's clear, your Honor, 18 that that demonstrates exactly what Dr. Larntz testified to in 19 this case which is that race is a very, very important factor. 20 It's not uncommon, I guess, your Honor, for lawyers 21 to plead alternative legal theories, but it seems to me it's a 22 little strange to plead alternative facts. And they just 23 can't have it both ways on this point. And we think that what 24 Dr. Raudenbush did effectively and essentially confirmed the 25 analysis that the Court heard from Dr. Larntz. And, again, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 12 1 your Honor, we think one can simply see that in the grids. 2 Your Honor, the second issue that is being tried here, 3 the one of double standard, is one that I have indicated 4 earlier, it really arises from the first. The extent to which 5 race is considered and as we see it in this case, really 6 answered the question about whether there is a double 7 standard. What the data has shown, what Dr. Larntz has shown, 8 what the inferential statistics show, what the grids show, and 9 what Dr. Raudenbush has shown, is that there is beyond any 10 dispute, a race-based, double standard in the admissions 11 process at Michigan. 12 To state it simply, your Honor, a different rule 13 applies to the probabilities of acceptance, to the odds of 14 acceptance, for applicants from different racial groups. 15 Among those applicants with comparable academic credentials, 16 we can quibble about what's meant by "comparable" and I think 17 there's been some of that. We can quibble about what's meant 18 by "credentials" and I think there's been some of that 19 quibbling. But one thing we know for sure is that grades and 20 test scores are very, very important in the process. We know 21 that Michigan is very highly selective. And we know that 22 Michigan is very highly selective on those criteria: grades 23 and test scores. And they have chose to be highly selective 24 on those criteria. And just as clearly, we can see the 25 starting of just the quantitive data without even going beyond GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 13 1 that, and we certainly and I will, that there is this 2 different rule that applies. That there is a race-based 3 double standard. Not one that makes a difference, your Honor, 4 in every case, but that makes a difference in many, many cases 5 that is pervasive, systematic, that is dramatic, sharp, and 6 substantial. 7 Now, your Honor, Justice Powell, himself disapproved, 8 disapproved of an admissions system in which applicants could not, do not 9 compete on an equal footing because of the consideration of race. He 10 proscribed what he called a two-track or dual admissions system. Well, 11 your Honor, that's exactly what we have here at Michigan. In no 12 meaningful sense do applicants of these different races compete on an 13 equal footing. If the facts here, your Honor, haven't demonstrated that, 14 I really don't know what it would take to make that case. What it would 15 take to make the case that a double standard exists. 16 Here, as I've indicated, applicants simply don't 17 compete on an equal footing. If it can't be proven with this 18 kind of evidence, your Honor, with the evidence that we've 19 got, I simply don't believe it can proven. And I don't say 20 that, your Honor, because I think that we're particularly good 21 lawyers on our side of the case. I say that, your Honor, 22 because we think the facts of this case are particularly 23 egregious. 24 I want to turn next, your Honor, to the policy 25 itself. I'm done I think for the most part of talking about GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 14 1 the statistics. As I've said I think much better use of time 2 can be made in closing remarks, and I want to say a few words 3 about the policy. And what I want to say really, your Honor, 4 distills down to this, and I know the Court is very familiar 5 with the policy so I have no intention in taking any time to 6 go into it in detail. But the policy itself, on the face of 7 the policy itself, there is proof of the existence of the 8 double standard. 9 The policy is written just -- the police as written, 10 effectively sets up a whole racial category of applicants 11 whose admissions are to be sought in what the policy calls 12 "meaningful numbers." "Meaningful numbers" even though the 13 academic credentials within this group, the test scores and 14 grades, the selection index that was so often referred to in 15 the policy, even those are as the policy says "relatively far 16 from the upper-right portion of the grid where the great 17 majority of application decisions are to be made." 18 We think, your Honor, that demonstrated 19 categorically a difference. That's clear evidence of the 20 existence of the double standard. 21 And, of course, the policy goes on to talk about 22 critical mass. This has been I guess a marvelously useful 23 concept for the law school and its witnesses. There's a line, 24 your Honor, from Louis Carroll's "Looking Glass" or Mark from 25 "Humpty Dumpty" where he says when he makes a word work hard, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 15 1 he pays it extra. Well, I think, your Honor, the Law School 2 owes a lot of money to this phrase "critical mass" because 3 they make it do a lot of work. I want to make a couple of 4 points about it. 5 The first point actually, your Honor, 6 relates back to something that I said at the time of the 7 summary judgment hearings in this case. We have called, the 8 plaintiffs have called, and we're not the only ones, other 9 courts have done this as well, we have called the concept of 10 critical mass a concept that is vague, amorphous, ill-defined, 11 one that as a matter of law is not adequately defined to 12 support a narrowly tailored consideration of race. 13 Your Honor, given what has been said about critical 14 mass in the course of this trial, I don't know how our 15 characterization of critical mass can be assail. It should be 16 notorious by now that indeed this concept, the articulation of 17 it, is one that is so vague, of one that is ill-defined that, 18 in fact, it cannot support the use of race of in the 19 admissions process. In fact, it's been very featured, and the 20 very form of this seems to me that would serve the Law School 21 so well. And I think it's clear, your Honor, how it has 22 served the Law School, the use of this concept "critical 23 mass." 24 It's done so because it has enabled the Law School 25 basically to continue its longstanding tradition of applying GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 16 1 double standards in the use of race. And to do so with the 2 use of language that is intended and I think to some extent 3 soothes and obscures. It permits the continuation in effect, 4 though not in name, of what was formally called a "special 5 admissions program" one that operated under the Law School's 6 policies prior to 1992. 7 The concept of critical mass and the way it's used by 8 the Law School has permitted effectively the setting aside of 9 some percentage or range of percentage of seats intended for 10 those and only for those who can contribute to this concept of 11 critical mass. And we know what that range is, your Honor, 12 even if it's not written in the policy, even as we know each 13 year that there is some number with respect to residency, that 14 the policy itself does not mention that, in fact, is a real 15 number. And we know, your Honor, that critical mass means 16 despite the ambiguity of the concept itself, from a number of 17 things in this case. 18 We know it first of all, your Honor, simply from the 19 data, the Law School tells us first of all that they have 20 critical mass, and so we can see that they -- we can see from 21 their own admissions data what fact it amounts to. And we 22 have, your Honor, we've seen much evidence in this case about 23 the statistics in terms of what the composition of the class 24 is, and each year, your Honor, what the statistics have 25 demonstrated, and I think there's one exhibit in particular GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 17 1 that makes this point, it's Exhibit 98, it's going back to 2 1992, the Law School have never had something less than eleven 3 percent underrepresented minority students in their class. 4 That seems to be at least the low end, the approximate low end 5 of the benchmark of critical mass. 6 Your Honor, we also have testimony on that subject, 7 in this area. We have testimony, your Honor, I think, for 8 example, from Professor Lempert in this case. He was asked 9 about critical mass. This is on page 84 of Volume 3 of the 10 transcript. 11 "I don't know. I think at the time when I wrote the 12 drafts, it seems to me based on committee's 13 discussions that sort of captured the sense of 14 what one needed at a minimal critical mass." 15 He was answering a question about whether or not a number of 16 eleven to seventeen percent captured that concept of critical mass. 17 We've heard, your Honor, I think through Ms. Munzel, 18 Dean Munzel, that, in fact, one of the things that she does in 19 assembling critical mass, she, herself, I think testified she 20 doesn't know what the concept means. But one of the things 21 that she does is look at the daily reports that she can see 22 generated on a regular basis that will tell her how this 23 year's class sizes up compared to past classes. And, of 24 course, what happens from year-to-year, we see the same thing, 25 the critical mass amounts to a range somewhere between eleven GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 18 1 and seventeen percent. 2 So the concept itself is illusive, your Honor, it's 3 quite clear what the Law School is doing. And this bring me 4 back again, your Honor, to Justice Powell's opinion Bakke, the 5 benchmark against which at least the Law School had made its 6 policy, Justice Powell made clear that he would not approve of 7 an admissions system that involved a systematic exclusion of 8 race. One that amounted in his words to the functional 9 equivalent of a quota. 10 Well, I believe, your Honor, that effectively is what 11 is accomplished with the policy at issue in this case. What 12 the numbers do, what the data do simply confirm that the Law 13 Schools Admissions' Office carries out these policy mandates 14 with respect to, of course, obtaining a critical mass. They 15 assure each year, the Admissions Office does, that there will 16 be meaningful numbers, critical mass of minority students 17 somewhere near or between or approximating eleven and 18 seventeen percent. And to accomplish that objective minority 19 applicants are admitted whose grades and test scores place 20 them relatively far from the upper right portion of the grid. 21 Your Honor, the policy itself and the way it's 22 implemented, it self-contemplates systematic exclusion to the 23 extent that there needs to be the policy called for in the 24 Admissions Office ends up enrolling a critical mass of 25 minority students. And it's important to understand, your GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 19 1 Honor, that critical mass can only be brought by one type of 2 student. Critical mass is only brought by students who belong 3 to particular races and ethnicities who can fulfill it. 4 Barbara Grutter, and people like her, white students, 5 Asian students, cannot compete for seats in a class to the 6 extent that the Law School is trying to fill their critical 7 mass to reach their meaningful numbers. That, your Honor, is 8 systematic exclusion. The numbers in this case bear out the 9 bear out the conclusion that what Michigan operates is at 10 least the functional equivalent of a quota. 11 All the defendants, your Honor, are really left with 12 on this defense that this is not a systematic exclusion, that 13 this is not a quota, is their defense that there is not an 14 affix in the quota, that the numbers enrolled at the Law 15 School vary from year-to-year, that there's a range. 16 Your Honor, this is simply, it seems to me, elevating 17 form over substance. Race is not considered to any less 18 extent, there is not any less of a double standard simply 19 because there is not one single number, not one single fixed 20 number that represents critical mass. Choice of words, don't 21 it seems to, your Honor, decide the issue. It Doesn't matter 22 that the policy does not use the word "quota." It doesn't 23 matter that the Law School dropped its formal reference to 24 the term "special admissions program." With the 1992 policy, 25 your Honor, and the manner in which it's implemented, the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 20 1 policy still has in effect a special admissions program. And 2 it is not in substance it seems to me any different than the 3 one that was in effect prior to 1992, with respect to the way 4 in which race is considered in the process. 5 Your Honor, I want to talk a little about some of 6 the testimony. I've talked about statistics, I've talked 7 about the data, I've talked about the policy itself. As I 8 mentioned there is this third general category, much of the 9 testimony the Court heard in this case. 10 Your Honor, I've already indicated, for example, 11 that Professor Lempert has testified at least historically, 12 historically what critical mass has meant at the University of 13 Michigan Law School, or to him at least as he was the chairman 14 of the committee something in the range of eleven to seventeen 15 percent. I've indicated, of course, something Dean Munzel's 16 testimony with respect to use of the daily reports, to assist 17 her in achieving critical mass. 18 There also, your Honor, is the testimony that we've 19 heard in this case from former Dean Shields. I want to refer 20 to that briefly. On the subject to the extent which race is 21 considered -- and this was one of the issues, your Honor, in 22 which the University has said that you simply can't make any 23 judgment about extent -- this is what Dean Shields said in 24 response to this question. 25 "Q Would it be fair to assume, is it accurate to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 21 1 assume, and I'm not asking you about any individual 2 file here but the average here, the difference 3 here in terms of decision-making with respect to 4 African-Americans and these cells and 5 Caucasians, can generally be explained by the 6 Extent to which race is taken into account in 7 The admissions process? 8 "A Generally, yes." 9 Here we have, your Honor, the Dean of Admissions 10 himself, the Dean who was actually on and participated in the 11 drafting of the faculty admissions committee and was there for 12 a number of years afterwards, here we have him acknowledging 13 something that the defendants themselves have tried to deny 14 and have tried to deny, for example, through their own expert. 15 Your Honor, I don't think it's really disputed. I 16 don't think it should be disputed in this case that minority 17 students are generally admitted with generally lower test 18 scores and grades. And there was testimony to back that up. 19 Here, again, your Honor, is from Dean Shields. 20 "Q And in order to achieve that critical mass. 21 of minority students the practice was and the 22 policy called for a willingness to admit minority 23 students from generally lower academic 24 qualifications than majority students; 25 isn't that a fair statement? GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 22 1 "A I think that's a fair statement." 2 And, your Honor, this is testimony that we heard -- 3 not from one of the University's witnesses, but from Professor 4 Franklin, John Hope Franklin, and I think it's worth 5 commenting on because of what I just read from Dean Shields. 6 "Q Professor Franklin, when it comes to 7 universities and college admissions you've been 8 clear, have you not, that you do not support the 9 admission of less qualified minority applicants 10 over more qualified Asian applicants? 11 "A That's right." 12 Your Honor, that's what Dean Shields has testified 13 that they do, and that's what Professor Franklin has indicated 14 is wrong. 15 Your Honor, I've talked enough I think about the 16 testimony. We're going to spend some time in our briefing, 17 citing to much more of the testimony and the documents and 18 maybe some of the other points. I want to just turn, your 19 Honor, to the third issue because again I think it's really 20 established beyond any serious dispute that there race is used 21 to a great extent in the process. And effectively and 22 functionally it has a resulted in effect double standards at 23 the Michigan Law School in the functional equivalence of a 24 quota. So I turn to the third issue, your Honor, the issue of 25 leveling the playing field. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 23 1 The contention as I understand it, your Honor, is 2 that the consideration of grades and test scores disadvantages 3 disproportionally minority students to a large extent. And, 4 therefore, because of that, race must be a consideration in 5 the admissions process. That's how at least I understand the 6 point of view that's being urged by the Intervenors, and I'm 7 not sure it's being urged by the Law School, but I want to 8 address this issue. 9 First, your Honor, if the premise, indeed, 10 justifies the conclusion, if the differential in test scores 11 and grades justify the conclusion then we should at least be 12 fair about one thing. This is just another way of saying that 13 there must be different standards, that students should be 14 treated differently on account of their race because of this 15 premise. But the double standard according to this theory is 16 that it's a justified one. 17 Now, your Honor, I think there are a number of 18 obstacles, many of them are legal, and I'm not going to take 19 up the Court's time today arguing points of law. Again, we 20 will raise those at the appropriate time in the briefs that we 21 file. 22 A substantial case has been made that there are -- 23 has been shown that there are different scores in terms of 24 LSAT and grades in terms of minority students and not minority 25 students, your Honor. I don't believe, your Honor, there's GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 24 1 been a case made here of bias. There has been a case made 2 that there are disparities. And we, in fact, would have 3 stipulated to that. It shows up in the Michigan data and it 4 has shown up in some of the national pool data, that is, that 5 minorities have tended, the minorities that are concerned here 6 tend to score lower on some of these indices, like LSAT, SAT 7 scores. It's somewhat baffling, your Honor, that it's become 8 an issue in this case because I think we've made it clear from 9 the very beginning that we don't stand here as defenders of 10 the LSAT or any standardized test. Your Honor, we don't stand 11 here, the plaintiffs in this case, we don't stand here as the 12 defenders of any particular criteria that the Law School might 13 choose to use. It's the Law School that makes those 14 decisions. It's the Law School that made the decision in this 15 case to be highly selective with respect to grades and test 16 scores. And they are entitled to make those decisions, your 17 Honor. It's not for us, it's not for the plaintiffs to tell 18 the University of Michigan Law School that it can't use the 19 LSAT scores, they can't waive them heavily in the process. 20 It's not for us to tell them that they can't be selective on 21 these criteria. 22 Your Honor, we've heard testimony from the Law 23 School that they value diversity, and we have said many times 24 before and I will say it again today that we don't stand here, 25 the plaintiffs don't stand here as opponents of diversity. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 25 1 But the University of Michigan Law School having made the 2 choice, having made the choice to be highly selective on test 3 scores and grades, and to mandate as a matter of policy that 4 those are very important factors, and its students by and 5 large be shown from these reaches, the Law School is free to 6 not at the same time achieve its objective of diversity by 7 treating people differently on the basis of race, by effect 8 allowing a race-based double standard, by systematically and, 9 in fact, excluding students from competing for these seats 10 that go to establish a critical mass for minority students. 11 Your Honor, we heard from defendant's own expert, 12 Dean Syverud from Vanderbilt that there is a relationship 13 between selectivity and diversity. There's a trade off here. 14 And it only stands to reason here, your Honor, it's common 15 sense. If grades and test scores disadvantage 16 disproportionately minorities, the less consideration, the 17 less importance those criteria have, the easier it will be to 18 achieve diversity. 19 According to the Law School, your Honor, diversity 20 is a governmental interest. I have not heard a case here 21 made, I have not heard a case made in the last several weeks 22 that being a highly selective law school is a compelling 23 governmental interest. I have not heard the case made that 24 being highly selective on criteria like the LSAT is a 25 compelling governmental interest. I have not heard a case GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 26 1 made that the vast majority of the class ought to be selected 2 from the upper reaches of the selection index. They have not 3 the made that's a governmental interest. 4 And if it's not, your Honor, if being highly 5 selective, if being highly selective, if being highly 6 selective on the criteria that the Law School itself has 7 chosen, is not a compelling governmental interest and if 8 diversity is, then truly the former must yield to the latter. 9 So selectivity must yield to diversity. 10 But that's not the choice the Law School has made 11 here. Instead, your Honor, what they have tried to do is have 12 it both ways, and people have paid the price for that, people 13 like Barb Grutter, and the thousand of other applicants out 14 there like Asians and other races who cannot compete on an 15 equal footing for spaces in the class because of the choices 16 that the Law School has made. 17 Your Honor, we've heard many times from the 18 defendants that the Law School admits students by taking a 19 look at files on a case-by-case basis, by looking at the 20 individual files, by looking at individuals with personal 21 characteristics. That the LSAT like race is just one factor 22 in the admissions process. We see that, your Honor, in their 23 Exhibit 4, when they cite four examples of people whose values 24 to the class, is in their personal qualities and 25 characteristics notwithstanding relatively low or lower LSAT GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 27 1 scores. And I think in most of those cases all if not most of 2 them, what the testimony is and what the exhibit indicates is 3 that those personal qualities of those individuals bring to 4 the class have nothing to do with their race. 5 The testimony, your Honor, in this case has not been 6 that the Law School must reach into the upper reaches of 7 selection index in order to get students with interesting 8 backgrounds and experiences. The testimony has not been, your 9 Honor, that qualified students can only or primarily be found 10 at the ninetieth or ninety-five percentile or above on 11 selection indexes and LSAT scores. 12 The testimony has not been, your Honor, that better 13 lawyers are produced from the pool of students with the 14 highest test scores and grade. Indeed, your Honor, on each of 15 these points, the evidence has actually been the other way 16 around that most of the applicant pool at Michigan is highly 17 qualified, and can be expected to succeed academically at the 18 Law School, and to go on to graduate even though they're not 19 in the upper reaches of the grid. 20 The testimony has been, your Honor, that students 21 even in the middle range of LSAT scores can do well and do do 22 well as many of the minority students at the Law School. 23 Again, we are not suggesting that these students can't do 24 well, can't be qualified at the school. They don't have to 25 have LSAT scores that are of the ninetieth or ninety-fifth GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 28 1 percentile. That's what the Law School has chosen to be 2 important for them in selecting a class. 3 And, of course, your Honor, Professor Lempert who 4 testified just yesterday has demonstrated that one doesn't 5 have to score in the upper reaches of the LSAT in order to 6 have a high selection index to go on and do well in life after 7 law school. 8 And if all those things are true, your Honor, it 9 seems to me that the Law School is hard press to explain how 10 racial classifications can justify the two things they want at 11 the same time: Diversity and high selectivity and test scores 12 and grades. If the one is compelling the other must and 13 should yield. That, your Honor, is what narrow tailoring 14 requires. The Law School may not have it both ways at the 15 expense of the rights of people like Barb Grutter and others 16 like here. 17 Your Honor, I want to turn last to the issue of 18 societal discrimination. There's been testimony about that in 19 this case. And once, again, your Honor, there's been 20 testimony from many of the Intervenor witnesses on this. Your 21 Honor, as I said before, and I think I said this at summary 22 judgment, I think we've said times in this case, we don't 23 challenge, the plaintiffs don't challenge the premise that 24 there has been a long and sorry history of unjust race 25 discrimination against minority groups in this country, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 29 1 particular groups like African-Americans. And we don't 2 suggest for a minute that racism and race discrimination 3 against these groups is found only in the history books, that 4 there's not a continuation in many respects of the effect, and 5 the fact that many of the practices of those areas continue. 6 Societal discrimination has a long history and has it a 7 persistent and continuing effect. We have heard that not just 8 from some of the Intervenors and I think some of the 9 statements made by the University of Michigan in this case. 10 And we don't challenge it, your Honor. It raises some legal 11 issues, your Honor, in respect to what justifies the use of 12 race in admissions and we will address those probably in some 13 of the briefings that will be filed. 14 And I think it's important to understand, your 15 Honor, that when the Intervenors, when Mr. Payton was talking 16 about these social issues and we heard testimony, we heard 17 comments about racial division, segregation, disparities in 18 education and income, we are no longer talking, your Honor, 19 about the diversity rationale, about the educational and 20 intellectual benefits of a racially diversed education. 21 Instead, your Honor, we are talking about the use of race in 22 law school admissions to remedy longstanding, complex social 23 problems. We're talking about diversity in the classroom, in 24 the school in order to remedy societal discrimination. That's 25 what we're really talking about. And that presents some legal GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 30 1 issues, your Honor, some I think we will be addressing in the 2 briefings that we file with the Court. 3 Your Honor, on the subject of discrimination, the 4 nation's history of discrimination I do want to say one thing. 5 Mr. Payton asked a question of Professor Foner that I still 6 remember, a question although it was really a statement, one 7 that troubled me and I think it actually sums up really the 8 differences in the principles involved here. He asked 9 Professor Foner, your Honor, to agree that there is no "we," 10 that there is no "our" society. That he said, I think, you 11 have to look at it for each racial group to really understand 12 how they see themselves, the society, other groups, freedom, 13 this country. There is no "we --" 14 But that, your Honor, we believe essentially is the 15 premise on which racial preferences depend. And it is the 16 premise of what racial preferences will always mean. But only 17 that race has matter in our nation's past, but not only have 18 we always been divided, but that race will always matter in 19 the American society, that we will always be divided along 20 racial lines. That is the premise of racial preferences. It 21 is the premise that we will persist in thinking of people's 22 qualifications, in work, in terms of their skin color and not 23 their unique individual qualities, that to know something 24 about someone that we actually have to know what their race 25 is. That's what racial preference has brought to the American GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 31 1 vision. 2 Our vision, your Honor, is different. We don't 3 believe in the position Mr. Payton has expressed. We fully 4 recognize and acknowledge as I say, your Honor, a long sad 5 history of race relations in this country. We don't believe 6 that we are bound by definitely into the future. The American 7 Creed, the proposition that all men are created equal is on 8 that has often been more honored and breached than the 9 observance for some including like African-Americans. But it 10 seems to me, your Honor, that our progress as a nation has 11 always been measured largely by whether we are retreating from 12 or advancing towards that Creed, whether the Dred Scott case 13 or the Fourteenth Amendment embodies our national principles, 14 whether Plessy versus Ferguson, or Brown versus the Board of 15 Education, is the law of the land. 16 Your Honor, the use of race to learn anything about 17 someone, to learn about their qualifications is a step 18 backward. It's in the tradition of retreating away from that 19 great American principle of equality. 20 Today, your Honor, for this generation the question 21 is whether we're going to allow social theories, contrast by 22 diversity, to permanently change, to permanently change the 23 landscape so that race will always matter to a regime of 24 racial preferences. If that, your Honor, were the choice, we 25 will advance the principle of non-discrimination by requiring GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 32 1 that we get beyond race and that we get beyond race now. 2 We believe, your Honor, that is the course that is 3 the right one. That is the one that advances the American 4 Creed. And we believe that is the one the Court should apply 5 in deciding this case, your Honor. 6 Thanks. 7 THE COURT: Thank you, very much. 8 MS. MASSIE: Judge, if I could just ask, I 9 understand there are a number of other students downstairs 10 waiting, if there is any way that we can fit more people into 11 the courtroom? 12 THE COURT: Just looking out there, I don't think 13 so. What we're hoping to do or what we talked about this 14 morning was to be able to use the hallway. There's judges on 15 the floor that are in trial, and it just won't work and 16 because of the court reporter -- we talked about it this 17 morning. I know Lisa is doing a great job out there trying to 18 coordinate those that are here, students and otherwise. That's 19 all I can do. 20 MS. MASSIE: We can't have people sit up or sit on 21 the floor, or anything -- 22 THE COURT: No. 23 MS. MASSIE: Is that a fire hazard? Okay. 24 THE COURT: I don't know about a fire hazard; it's 25 just not right. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 33 1 We can rotate people. Why don't we take five 2 minutes and then we won't have to interrupt Mr. Payton with 3 people coming in and out. We will take a real five minutes. 4 (Court recessed, 9:45 A.M.) 5 (Court reconvened, 9:55 A.M.) 6 THE COURT: Okay. You may be seated. 7 Mr. Payton? 8 MR. PAYTON: Good morning, your Honor. 9 THE COURT: Good morning. 10 MR. PAYTON: I, too, want to thank everyone 11 associated with the case. It's gone very well. And I think 12 in a sense, it's been a clean case, that is, we've had very 13 few disputes among ourselves. I don't think there's any 14 question about credibility. I think the facts have come in 15 pretty straight forwardly. And I think our task is to figure 16 out what those facts mean. 17 I want to start where Mr. Kolbo left off with my 18 question to Eric Foner, and his use of it about my asking 19 aren't we incapable of having a unified "we." He completely 20 misunderstood my question, and I think he completely 21 misunderstands what this case is about. I was about where we 22 are now, and this is case is about how we get from where we 23 are now to being something different than little separate 24 groups. 25 We do agree that this case is about Bakke. We GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 34 1 believe that this case is controlled by Bakke. And it's 2 controlled by Bakke and the educational benefits that come 3 from having a racially and ethnically diverse student body. 4 Educational benefits that the University of Michigan Law 5 School judges to be crucial to its educational mission. 6 Benefits that as he said are undisputed in this record. 7 Let's go back to the summary judgment argument in 8 December. Mr. Kolbo argued then to this Court that -- sort of 9 what he said now -- even if there is a compelling interest in 10 achieving the benefits of diversity, even if Judge Powell's 11 opinion is controlling, that somehow what we do is wrong in 12 trying to achieve that. I said then and I say now that the 13 way the Law School makes admissions decisions is exactly the 14 way Justice Powell said that a Constitutional admissions 15 system should work. 16 This Court directed us to try the three issues. 17 I'm going to go over the first of those two issues and allude 18 to the third issue, but I'm going to stick pretty much to the 19 first two issues. The first two questions are the ones that 20 address whether or not our system complies with Bakke. I 21 agree with Mr. Kolbo, he's going to be surprised that the 22 answers I think are absolutely straightforward, and they 23 require no experts at all. 24 Bakke says that an institution of higher education 25 may consider race as one of many factors in its admissions GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 35 1 process. Race can be taken into account to the degree 2 necessary to achieve meaningful numbers of qualified minority 3 students, so long as the students compete on the same basis 4 against each other. I don't think there is any disagreement 5 with that legal standard. Race can make a difference between 6 getting in and not getting in. I don't think there's a 7 disagreement that that's exactly what Bakke contemplates. 8 Under this standard, the answers to the first two 9 questions are simply -- absolutely clear. Here they are: The 10 record is undisputed that the Law School uses race in its 11 admissions process only to the extent necessary to achieve a 12 critical mass of underrepresented minority students. The 13 extent to which race is considered varies from file-to-file, 14 just as Mr. Kolbo admitted. For some students, it makes no 15 difference at all. Other factors determine their admission. 16 For other applicants, consideration of race can be more of a 17 factor and, of course, in some cases as Mr. Kolbo admitted, it 18 can be decisive. 19 Indeed, to use race to obtain the critical mass is 20 confirmed by the evidence that we've heard regarding the 21 dramatic reduction in underrepresented minority students at UC 22 Berkeley and UCLA after Proposition 209. 23 California is our most racially and ethnically 24 diversed state. We were told that the University of California 25 gets about ninety percent of its undergraduates from within GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 36 1 the state. After Proposition 209, at those two schools, 2 Berkeley and UCLA, there was a fifty percent drop in its 3 Latino students. Not because they didn't have eligible 4 students, qualified eligible Latino students, but because they 5 couldn't take race into account to select them. The number of 6 African-American students dropped even more and what we heard 7 made it clear that their numbers are now so low that there are 8 unsufficient numbers of African-Americans to constitute a 9 critical mass in a diversed student body. 10 We would not use race if we didn't have to in order 11 to obtain the meaningful numbers of minority students that we 12 need for our educational mission. We have to, and that fact 13 simply cannot be avoided. 14 The consequences of the Law School's use of race is 15 that there is a modest level of underrepresented minority 16 students in the class. He said that the number was I think 17 eleven percent, I believe in most recent years it's been 18 around fourteen percent. But the numbers do vary, they do 19 fluctuate, but they're modest. 20 Mr. Kolbo and the plaintiffs and have used Professor 21 Kinley Larntz and his grids to show that there are past 22 admissions decisions in which qualified white students have 23 not been admitted, and where equally, exactly equally 24 qualified minority students have gotten in. 25 Now, I'll come back to the Larntz's grids later, and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 37 1 I'm going to go over them in some detail. But I want to 2 remind the Court of our Exhibits 182, 183, those are the 3 scatter charts that showed all of the admissions decisions for 4 1997, that's Ms. Grutter's year, showed them by 5 underrepresented minority, and by white students, and it 6 showed rejected and admitted. And if you recall, those 7 scatter plots showed considerable overlap in both categories, 8 overlap with respect to rejected, and overlap with respect to 9 admitted. 10 The legal standard is clear, we can use race and we 11 can use it to the extent necessary to obtain a diversed 12 student body. And I think just looking at those charts it's 13 quite clear we do no more than that. That's the evidence on 14 the first question: The question of extent. 15 Now, the second question: Is there a double standard? 16 Just define double standard: Where applicants are evaluated 17 separately or according to different standards. The record 18 could not be clearer on this. There is one set of standards. 19 He couldn't find any other set of standards. All the 20 applicants are judged by that one standard. That's what the 21 1992 policy says. The parties have stipulated that that's the 22 policy that has governed admissions since 1992. They've 23 stipulated that the directors of admissions, Mr. Shields and 24 Ms. Munzel are charged with implementing that one, unified 25 policy. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 38 1 Dennis Shields and Erica Munzel testified that they 2 used the same standards to judge every single applicant, every 3 single file. Professor Lempert said the same thing yesterday. 4 President Bollinger, Dean Lehman, everybody testified that's 5 how the process was to work and does work. Race is taken into 6 account but the standards are the same. 7 The evidence is clear that race is not given so much 8 weight that it prevents each applicant regardless of race from 9 competing with all other applicants to gain admission. To the 10 contrary, as the admissions data show the Law School rejects 11 on average over this time period about two thirds of the 12 minority applicants that it receives. If race were the trump 13 card that Mr. Kolbo just indicated that it is, that simply 14 couldn't be true. It just couldn't be true. All students are 15 evaluated under the same set of factors. 16 Now, plaintiff would like to reduce this issue to 17 the following: That applying the exact same standards and as 18 part of the process using race is a double standard. That just 19 can't be right as a matter of logic; otherwise, the use of any 20 factors that may not be present in all applications would also 21 be a double standard. 22 No one says that we have a double standard that's 23 applied to students who get good recommendations. 24 Nevertheless, recommendations can certainly be very important 25 in making decisions. It can very often make the difference GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 39 1 between being admitted and not being admitted. 2 The term "double standard" is just a label that's 3 put on the consideration of race by those who don't believe we 4 should be using it at all. If race couldn't make the 5 difference in some cases, Bakke would have no meaning at all. 6 Moreover, there is no claim that there was any separate 7 process, separate applications, no separate files, no separate 8 readers, no separate anything. Those things would constitute 9 a double standard, but they don't describe our admissions 10 process. 11 The interest of achieving the benefits of racial 12 diversity is at all times fairly weighed against the Law 13 School's other interests in admitting a class that will be 14 dynamic, filled with exceptional students who will go on to 15 become exceptional lawyers. 16 Now, the plaintiff has eagerly, eagerly in this 17 trial and today, agree that the policy requires, mandates, 18 that all students be very well qualified, and that this has 19 been adhered to. Nevertheless, the plaintiff persist in 20 focusing on the disparity in grades and test scores between 21 our minority students compared to our white students, our 22 majority students. That's misleading and of no significance. 23 In 2000, the median GPA for white admitted students was 3.68. 24 The median GPA for African-American admitted students was 25 3.40. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 40 1 Now, I think in every day parlance that is not a 2 gigantic disparity, and it doesn't have the significance that 3 they're trying to attach to it. The exhibits that I've 4 referred to, the scatter plots from 1997, are very 5 illuminating on this, Exhibits 180 to 183. They show all of 6 the students from 1997, broken out by admitted and rejected, 7 and then broken out by minority and majority. They show that 8 all the students have similar distributions. That the 9 minority students and the white students greatly overlap on 10 the chart. 11 Plaintiff's claim of significantly different 12 qualifications doesn't remain after viewing these charts. And 13 I have yet to point how we make much more informed and 14 sophisticated judgments about our students than merely those 15 that are reflected in a simplistic comparison of GPA and LSAT 16 scores. But, I'm coming to that right now. 17 This is a crucial context I think for both of the 18 first two questions. The context is how our admissions 19 process actually works. I guess the world would be easier if 20 it worked sort of as Professor Larntz described which is just 21 two things: grades and LSAT scores. It would be easier but it 22 certainly wouldn't be better. All the applications compete 23 against each other. Every file is read. Every part of every 24 file is read. All factors, all relevant information are taken 25 into account. Grades and test scores certainly quite GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 41 1 important are never used alone. And in the context of a 2 complete and rich file, grades and test scores rarely drive a 3 decision to admit or to reject. No grids are used in the 4 process of making admissions decisions. No cells are used in 5 the process of making admissions decisions. The Law School 6 doesn't admit grids, or cells, or grades, or test scores. It 7 admits people, whole people. 8 Many of us, many of us in this room, have been on the 9 outside of the admissions process. That is, we all at some 10 point or another applied using grades and test scores in 11 filling out things and we've seen the results. And I think 12 it's fair to say that at one time or another we all had a view 13 that grades and test scores were the only real criteria that 14 mattered, that the most qualified meant the students with the 15 highest GPA and with the highest test scores, that the other 16 factors were just kind of play factors, and they really had no 17 significance at all. 18 In this trial we all learned otherwise. We learned 19 just how much of an art admissions is, and how that art is 20 practiced by a committed and experienced group of 21 professionals. 22 Professor Lempert was asked yesterday if there is a 23 correlation between law school GPA, LSAT scores and success 24 after law school. His study shows that there is not. He 25 explained that this follows because our admissions process GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 42 1 takes so many other factors into account. That's why an 2 admitted student with a moderate LSAT score cannot be judged. 3 By that score in isolation. We do a pretty good job of 4 selecting uniformly excellent students. And because we use 5 those other factors, there is and there could be no 6 correlation between LSAT GPA and professional success. The 7 Lempert study, in fact, proves that we take our policy 8 seriously, and that it does what it was intended to do. 9 The admissions policy at the University of Michigan 10 Law School has played a major role in the creation of one of 11 the country's finest law schools. In this trial, we got an 12 unique tour of how the process really works, and how it was 13 formulated. Let me just go back for a second. 14 1991, then Dean Bollinger, created the Faculty 15 Admissions Committee, and he put the new, then new Director of 16 Admissions, Dennis Shields, on it. And one of the first 17 things Dennis did was to bring actual application files to the 18 Committee. Few of the committee members had ever read a file. 19 Dean Lehman testified -- he was professor then, just on the 20 committee -- that it was a "very a significant exercise for 21 me" to read a file. He had thought that it would be very 22 easy, just look at the grades and the LSAT scores, and you 23 look at a file to just sort of confirm what you've got out of 24 the grades and then LSAT scores. He told this Court "that 25 turned out not to be possible." GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 43 1 Professor Lempert, Chairman of the Committee and 2 the principal drafter of the policy told the Court that "when 3 you read files, you get the feeling of the complexity of 4 students. And you get a feeling for the whole student...you 5 get away from the sense of rigid numbers..." 6 Reading the files turned out to be invaluable 7 because when you admit a student, you have to look at the 8 whole person, not just the grades and not just the test 9 scores. 10 During Erica Munzel's testimony, the Director of 11 Admissions, she went through an actual file of an actual 12 applicant. We can probably remember her story. But do any of 13 us remember her SLAT score, or her GPA? No. What we remember 14 is her story. A very impressive woman. Went to Vassar. Was 15 a Rhodes Scholar. Had compelling essay about growing up in 16 Washington, D.C., where her family's business burned down in 17 the 1968 riots. We learned what she took away from that 18 experience. She had great recommendations. Her SLAT score is 19 not what made her a student we wanted. If it had been a 20 little bit lower we still would have wanted her. Though, at 21 some point, of course, they may have affected our judgment of 22 her. We remember her story because once you know the grids and 23 the LSAT score, once you know her story, the grids and the 24 LSAT scores just recede in significance. Her grades, her 25 SLAT, they just don't matter once you hear the story at all. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 44 1 You know the person. We don't admit GPAs and we don't admit 2 LSAT scores. 3 The Faculty Admissions Committee was transformed 4 when it read files, when it appreciated how the process should 5 work. And it made sure that the 1992 policy incorporated this 6 learning. While grades and test scores are the "most general 7 measure" of law school performance, the policy makes it quite 8 clear that they "are far from perfect." And as we've all 9 heard they are responsible for less than twenty-seven percent 10 of the predicted first-year graded performance. "Even the 11 highest possible score ought not guarantee admission." "And 12 even a quite low score ought not automatically deny a 13 candidate admission." Those are quotes that we've all heard 14 from the policy. I should point out those quotes have nothing 15 to do with achieving racial diversity. Those are the general 16 points in the policy. 17 It is important to realize that this does not reflect 18 any trade off with regard to the quality of our student body. 19 In fact, it's just the opposite. We look beyond grades and 20 test scores in order to select the best class we can. And 21 this point is independent of any consideration of race that we 22 make. The Lempert Study proves that. 23 The policy goes through just how carefully a file 24 should be read. The enthusiasm of the recommenders; the 25 quality of the undergraduate institution, the quality of the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 45 1 essays, the difficulty of the courses; the indications that 2 the applicant has unique perspectives, view points, 3 experiences that would contribute to a diversed class, all 4 this should be reviewed. It requires and the policy 5 explicitly acknowledges the need for discretion. 6 The Gospel According to Dennis, that's the October, 7 1992 memo that Dennis Shields wrote that addresses how to go 8 about implementing this new policy, how a file must be read in 9 detail and thoroughly. Why all this case? Well, here's a 10 main point: We go to all this trouble because of a preeminent 11 law school needs to care about the composition of the class it 12 is selecting. We've concluded as an educational matter that 13 having a diversed student body is essential to our educational 14 mission. We, therefore, seek, we all know the quote, "that 15 diversity which has the potential to enrich everybody's 16 education and thus make the law school class stronger than the 17 sum of its parts." You know the rest of the quote about 18 diversity and view points and all of that. I'm not going to 19 go over all that again because we know it very well. 20 The policy makes it clear that one of the aspects of 21 diversity that is very important is racial and ethnic 22 diversity. And, again, that's the part on page 12 that I 23 think we can all recite, the special commitment to making sure 24 that those minorities that have been victims of discrimination 25 are represented in meaningful numbers so that they can GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 46 1 contribute to the diversed student body that we want. 2 Everyone who has testified regarding this mission has 3 agreed that it is critical, that it is crucial. President 4 Bollinger, Dean Lehman, Professor Lempert, Dean Syverud, 5 Professor Orfield, Professor Allen, Professor Foner, Dean 6 Garcia, Professor Wu. In fact, Mr. Kolbo and Mr. Purdy have 7 throughout the trial and Mr. Kolbo has today agreed that 8 having a racially and ethnically diversed student body is 9 important and educationally valuable. The point is not 10 disputed. 11 But for this to succeed educationally, it's simply 12 necessary that a critical mass, meaningful numbers of 13 students, minority students, be present. The policy uses both 14 terms, critical mass, meaningful numbers. Critical mass is 15 neither mysterious nor controversial. Dean Syverud, an expert 16 on legal education, testified about the need for critical mass 17 of minority students. It is crucial because he testified 18 there's a dramatic difference when a class has only token 19 numbers of minority students as opposed to a class where, as 20 he said, "there are enough black and Hispanic students that 21 there is a diversity of views and experiences among the 22 minority students so that everybody in the class starts 23 looking at people as individuals in their views and 24 experiences, instead of as races." 25 This provides the minority students with the freedom to GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 47 1 express a diversity of views. It also provides the 2 non-minority students with a demonstration that not all 3 members of a minority group think alike. The 1992 policy 4 benefits both minority and majority students. As a result, all 5 students are able to interact with each other and learn from 6 each other, and hopefully become the "we" that I was asking 7 Professor Foner about. 8 How does our policy actually play out in the 9 classroom? The effect on the law school class where a critical 10 mass is dramatic as Dean Syverud testified, and it affects the 11 education of all the students. Just as the lack of a critical 12 mass can leave a class flat, often with the minority students 13 being silent because they don't want to be spokespeople for 14 their groups. 15 Think back to what Dean Syverud said about that. And 16 about what Chrystal James, one of the two black law students 17 at UCLA said about the same topic. They said the same thing. 18 You need a critical mass of minority students so that 19 individuals are free to be themselves. So that all students 20 see that the broad range of ideas and perspectives held by all 21 members of racial and ethnic groups. That's how you challenge 22 stereotypes, and that's how you break them down. 23 Why is racial and ethnic diversity important to 24 achieve the educational benefits we have heard about? Because 25 race is so unique in our society. It's not the same as GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 48 1 religious diversity or special view points. Recall the 2 testimony of Erica Dowdell, the student from Detroit, now an 3 undergraduate at Michigan, who testified as the Intervenor's 4 first witness. She told us that she grew up in and went to 5 schools all the way through high school that were all black. 6 That she had no idea how isolated she had been until she went 7 to a suburban high school in Detroit, in the suburbs where the 8 students had not realized how isolated they were at an all 9 white school. 10 As Professor Orfield testified, this segregation is 11 not just a Michigan problem, and not just a Detroit problem, 12 it's a national problem. As he said, it has "led to a lot of 13 deep ignorance about other groups in the society on the part 14 of each group in the population." He told us that at a group 15 level we hold onto stereotypes and rarely communicate with 16 each other. There is a profound -- it's profoundly unhealthy 17 for us as a society that's been plagued by horrible racial and 18 ethnic oppression and discrimination. 19 Professor Orfield's research showed, again, his 20 quote, "for legal education that students who are in more 21 racially diverse settings see their perspectives change, 22 actually change their minds on important issues, redefine the 23 way they think about their career and their clients. It has 24 very deep effects on all racial groups..." 25 Professor Allen provided human content to this GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 49 1 research because ignorance is the basis for much of racial 2 stereotyping and hostility that minority students face on 3 campuses today. 4 Professors Franklin and Foner made it clear that 5 until we honestly deal with each other we will have difficulty 6 overcoming our past. 7 Other aspects of diversity are important as well, 8 and we value them, but they're not the same as racial and 9 ethnic diversity. 10 Now, it is true that the concept of critical mass 11 does not have precise boundaries. I'm not going to deny that. 12 It is an imprecise notion because it is about human beings 13 reacting to one another in a group. But that's just the nature 14 of the concept. The concept of critical mass is clearly what 15 Bakke says you must have, you can try and get it in order to 16 achieve the benefits of having a racially and ethnically 17 diversed student body. 18 It's not possible to achieve a critical mass under a 19 race neutral system. Professor Lempert testified to that. 20 Dean Lehman and Dean Syverud both testified about Professor 21 Raudenbush's statistical analysis in which he looked at 22 various law school settings, first-year section, first-year 23 half section, dormitory, in order to determine the 24 distribution of minority students under the current system, 25 the current numbers, and under an alternative race neutral GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 50 1 system. And both deans concluded that his analysis indicated 2 that it would not be possible to have a critical mass of 3 minority students under the race neutral system. 4 Dean Syverud was asked if a good law professor -- 5 and he's a good law professor -- could compensate for the lack 6 of a critical mass of minority students and still achieve the 7 educational benefits that come from a critical mass, he told 8 the Court that he could not. And he referred to his 9 experiences in an extremely homogenous class in Germany where 10 he has been teaching for a number of years and where the lack 11 of diversity is quite apparent. He explained that the 12 benefits of having a racial and ethnically diversed class 13 cannot be taught. 14 Our Admissions Policy is not an experiment. The 15 amicus brief filed in this case by the American Association of 16 Law Schools makes clear that our policy is mainstream. It was 17 informed, and was informed by history and experience, and it 18 was crafted by law professors and experienced admissions 19 professionals. It has been in place and operational since 20 1992. The Law School Faculty has not found occasion or need 21 to change it in any way. It has resulted not only in the 22 vibrant and diversed student body that was envisioned, but it 23 has also achieved the racially and ethnically diversed student 24 body that it also sought. And the critical mass of minority 25 students has been essential, crucial to its success. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 51 1 That's the policy, and that's how the policy works. 2 All of this evidence that I've just described, and I believe 3 is completely undisputed. The Law School considers race to 4 the extent necessary to achieve a critical mass of minority 5 students. 6 In response to all of this, I believe the plaintiff 7 relies principally on Professor Larntz who constructed a model 8 that has no relationship to how we actually make admissions 9 decisions. Mr. Larntz agreed, in fact, that all he did was 10 look at data that was given to him and he took it on the basis 11 and the form in which he received it. And he said he was only 12 looking at the results of our decisions, after the fact. 13 Our expert, Professor Raudenbush, explained that it's 14 no surprise that what Professor Larntz got was so skewed 15 because all they had -- and they had the same data -- were 16 limited data in a very rich process, but they just couldn't 17 quantify most of the factors we take into account. And you 18 can't inside the process if all you have are two pieces of 19 information that used in the process, and the process, in 20 fact, is multi, multi factored. 21 Professor Raudenbush is one of the nation's foremost 22 educational statisticians. He has twenty-five years 23 experience. This is his area. And on Monday, Professor 24 Raudenbush gave us a simple example to show why Professor 25 Larntz's odds ratio approach fails. He took two law schools. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 52 1 This was Exhibit 228. He postulated two law schools with very 2 different admissions policies. We know exactly how the 3 policies worked, he just defined them. One takes race into 4 account a little, and one takes race into a lot. Apples and 5 oranges. 6 Professor Larntz's approach would give exactly the 7 same odds ratio for both schools, even though we know that the 8 extent to which race is taken into account is very different. 9 That means that Professor Larntz is not measuring extent 10 because he couldn't tell the difference the two. The means he 11 couldn't tell the apple from the orange. 12 So what about results, or the causal impact of the 13 policy? Has Professor Larntz given us a good measure of that 14 impact? Absolutely not. 15 First, remember how Professor Larntz chose his 16 analysis. He testified he was given the 1995 grid. That's 17 Exhibit 16, and that grid reflected the admissions decisions 18 that were made that year. It was created, however, after the 19 fact of those decisions. 20 But Professor Larntz relied the grid as reflecting 21 how we actually made the admissions decisions. He thought that 22 the cells on the grid, he took them to be reflections of the 23 significance that our process attached to those rather small 24 differences in GPAs and LSAT scores. 25 As we all know, as I just went through how we make GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 53 1 decisions, it doesn't reflect anything of the sort. We don't 2 take those small gradations into account in our process. 3 Grades are not the same everywhere. They're not just frozen. 4 You just don't look at all GPAs and just take them as GPAs. 5 Remember I think we had a student from -- in one of 6 the examples in the policy, Student Z, who went to the 7 University of Florida. Had a very high GPA. And the question 8 was: How do we evaluate that GPA? And I think we could all 9 go through the process that the Admissions Directors use at 10 the Law School. Are all the colleges and universities same 11 academically? Of course not. What courses are reflected in 12 that GPA? Are the grades trending up or trending down? We've 13 learned a lot in this trial about how you actually analyze 14 that kind of information, and why you would never want to rely 15 just a simple version of that information. Because to reduce 16 someone's academic achievement to a single GPA and then 17 compare it against another student's single GPA, in our view 18 is simply unwise. We want a lot more information. 19 We don't over-rely on the LSAT score either. They 20 are useful when correctly employed. They provide a means, the 21 LSAT provides a means of comparing students across schools. 22 They're also useful in predicting within bounds performance in 23 law school. This is true with respect to all students, 24 whether white or African-American or Latino. But they only 25 predict so much. So the Policy requires caution in their use. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 54 1 Two or three points difference in the LSAT don't drive our 2 decisions. Remember the scatter charts. You can just see, 3 they don't drive our decisions. The Gospel According to 4 Dennis, that kind of difference doesn't drive our decisions. 5 Now, the Intervenors has called witnesses that have 6 questioned the reliability of the LSAT. However, only one of 7 them, I believe, Jay Rosner, even suggested that we should 8 stop using it. The others cautioned that it should not be 9 overly relied on, and we certainly don't do that. None of 10 those other witnesses knew anything about our policy or how we 11 use the LSAT. 12 Professor Lempert did, and he told this Court yesterday that the 13 LSAT was validated for both minority and majority students at Michigan 14 with respect to first-year grades. He also told the Court that from his 15 experience at the Law School Admissions Council he was unaware of any 16 study showing that the LSAT was directly biased against minorities. 17 Though, he like many other witnesses, thought that it may reflect societal 18 bias. The bottom line is that we certainly do not have a rigid approach 19 to LSAT scores. 20 Therefore, the predicate for Professor Larntz's work 21 just isn't there. The predicate to his model, his cells, as 22 being the definition of how we make decisions, they are a 23 misrepresentation of how we do make decisions. And, 24 therefore, the model and its conclusions are useless. 25 So Professor Larntz based his whole analysis around GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 55 1 grids that have no role in our admissions process. They're 2 not used in making any decisions at all. In fact, they don't 3 even fairly describe the results that they were -- the results 4 in that they were just limited to these two factors. 5 Why does this matter? It matters because this 6 completely explains why Professor Larntz got the large odds 7 ratios that he did. Not based on how admissions decisions are 8 actually made, but based on very small cells. Professor 9 Larntz, himself, agreed that if you drew the cell lines 10 differently, you would get different results. This is 11 especially true given the tiny numbers of minority students 12 overall and in many of these cells that Professor Larntz 13 emphasized. 14 The decisions that we make are, for the most part, 15 among students that are pretty similar. We have very highly 16 qualified students. Even in Professor Larntz's own terms, the 17 cells, we are talking only about equivalents. I think I want 18 to make that point again. In his cells, by his definition, 19 all the students are exactly the same. That's the only two 20 factors he's got, and they're exactly the same. That's why 21 they're in the same cell. 22 Now, here's my point on this. It's that they are 23 not properly defined. They should be much larger if they were 24 to contain all of the GPA and LSAT equivalents that we would 25 reach. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 56 1 On Saturday, Professor Larntz was asked if he agreed 2 that the odds ratio would be only two if the cells were drawn 3 to encompass a much larger group of cells. You just take the 4 whole little block that we used. And with the odds ratio it 5 would be two instead, you know, whatever it is, a gazillion. 6 He agreed that it would be around two, certainly would come 7 down he said. He agreed, but he complained that we were 8 ignoring the differences in qualifications among the students 9 in that larger grid that we drew. He missed the point 10 completely here. He's completely missed the point. He has no 11 basis for knowing how we define similar qualifications at all. 12 He just assumed that his cells did that. He asked no 13 questions. He conducted no inquiry. And it's not Professor 14 Larntz's fault, of course, that he was given the grids and was 15 told to rely on them. But the result is that his numbers are 16 completely unreliable, completely unreliable. 17 Also, because Professor Larntz was married to these 18 small grid cells, and he chose to use odds ratios as his 19 methodology, he was forced to throw out large amounts of data 20 in conflict with his hypothesis. Now, we've provided 21 Professor Larntz with much more data; he just chose not to use 22 all's of it. He takes the position that it's not relevant to 23 look at the enormous percentage of minority students that are 24 rejected, thirty-nine percent, the minority students are 25 rejected from his data, that it's just not important that he GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 57 1 look at that. How could that be? Every cell reflects a 2 decision by the Admissions Office. As the exhibits that plot 3 the distribution of admitted and rejected students in 1997 4 that I keep referring to show many underrepresented minority 5 students with high LSAT scores and high GPAs were denied 6 admission. Remember that area of overlap. If race is such an 7 enormous factor in admissions, why is it the case that it did 8 not cause a single one of those rejected minority students to 9 get in? 10 I'm trying to think how Mr. Kolbo wold respond to 11 this. Maybe we sort of heard. Maybe he would say that even 12 if I'm right, and what Professor Larntz has shown is that we 13 take race into account, well, if that's all he wanted to know, 14 I could have saved him a lot of trouble. We consider race as 15 a factor in our admissions process. It's in the policy, we've 16 never denied it. 17 Does it make a difference? Of course. Just like the 18 consideration of every other factor can make a difference. 19 We've never said otherwise. Even on Professor Larntz's own 20 terms, it would make a difference. 21 This is the other major problem with Professor 22 Larntz's analysis. Even taking that analysis on its own unreal 23 terms, that is, that race plays a major role in his cells, 24 that's his own terms, that would only mean that race plays a 25 role in deciding from among applicants that by definition of GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 58 1 Professor Larntz's model are equal in every other respect. 2 Equal, identical, which is to compare applicants who were the 3 same except for their race, that's what his model was trying 4 to do. 5 I'm going to go back to something that Mr. Kolbo and 6 Mr. Purdy used. Maybe it was just Mr. Kolbo in going over 7 some things with some of our witnesses, and that was a cell 8 from Professor Larntz. It was a cell on the 1995 grid. I 9 don't think we have to pull it up at all. I think you'll 10 remember it, but I can describe it. It was a call for the 11 applicants with a GPA of 3.25 to 3.49, that's a B+, and with 12 LSAT scores from 161 to 163 and that's the eighty-fifth to the 13 ninetieth percentile on the LSAT. Highly -- you know, very 14 high scores, very high GPAs. Good students. No question 15 about that. And here's what his cell looked like. 16 In that cell there were a hundred and ninety-eight 17 applicants, and seventeen admitted. And in this cell, a 18 hundred and ninety-one of those applicants were majority 19 students, and ten were admitted. Ten out of one ninety-one. 20 Seven of those applicants were underrepresented minority 21 students and all seven were admitted. Remember, you just kept 22 hearing this over and over again. Seven out seven, but only 23 ten out of one ninety-one. That gives an odds ratio of 24 infinity. This was an infinity cell. The odds ratios were 25 actually beyond astronomical, they were infinity. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 59 1 But let's look behind the numbers. There were two 2 Native American applicants, both of whom were admitted. There 3 were four African-American applicants, all of them were 4 admitted. And there was one Latino student who was admitted 5 as well. That's it. From a group of a hundred and 6 ninety-eight, their favorite cell, from a group of a hundred 7 and ninety-eight, the law school had a hundred and 8 ninety-eight -- or Professor Larntz has in his cell, a hundred 9 and ninety-eight equivalent. These are applicants who by his 10 factors are absolutely the same. From a group of a hundred and 11 ninety-eight equals, the Law School broke the tie in favor of 12 the minority students seven times. Ten times the majority 13 students got in. 14 So, if we are in Professor Larntz's imaginary world, 15 here's the question that arises in this case: What's wrong 16 with race serving as the tiebreaker in those cells of equals? 17 The answer is, absolutely nothing. If race can be a factor, 18 the premise of the trial of these three issues, if race can be 19 a factor, it can be used to break a tie. It can be used to 20 break a tie in favor of a handful, a handful of minority 21 students in a cell of equals. No one cold fairly conclude 22 that race is excessively weighted as a factor, much less that 23 it's a trump card. 24 One final point here: Professor Raudenbush showed 25 us what it really means for race to make a difference in GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 60 1 admissions. It has a large impact on minority students, but 2 only a small effect on majority students. If we moved to a 3 policy that did not consider race as one of many factors, we 4 would have far fewer minority students but the chance of 5 admission of any majority student would go up by only a few 6 percentage points. Last year, even with the policy in effect, 7 the Law School admitted fifty-eight underrepresented minority 8 students. That's it. 9 The question that this trial is about is whether the 10 Admissions Policy is lawful. Is it constitutional? It 11 certainly is not an accident that the Admissions Policy fits 12 so neatly within Bakke because it was designed to just that. 13 This is from Bakke. 14 "The fourth goal asserted by petitioner is the 15 attainment of a diverse student body. This clearly 16 is a constitutionally permissible goal for an 17 institution of higher education." 18 That's the first sentence of Section 4 in Bakke where 19 Justice Powell goes through diversity. 20 As the policy makes explicit, a diverse student body 21 is necessary for the educational mission of the Law School. 22 Justice Powell's statement in Bakke, "The atmosphere of 23 `speculation, experiment, and creation' so essential to the 24 quality of higher education is widely believed to be promoted 25 by a diverse student body." GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 61 1 That quote is confirmed by the experience of the Law 2 School and its faculty. 3 What does Bakke say about how to go about achieving 4 that diversed student? Well, it looked to the Harvard policy. 5 It attached the Harvard Admissions Policy as an appendix, but 6 it also quoted from the Harvard Policy in the Opinion itself. 7 Here's just a little part of the quote from the Harvard 8 Admissions Policy that's in the Bakke Opinion, quote. 9 "When the Committee on Admissions reviews the large 10 middle group of applicants who are `admissible' 11 and deemed capable of doing good work in their 12 courses, the race of an applicant may tip the 13 balance in his favor just as geographic origin or 14 life spent on the farm may tip the balance in 15 other students' favor." 16 As I said in my Opening, this is just what our 17 Policy contemplates and just what we do. That quotation that 18 I just read from Bakke also includes a reference to the 19 Harvard Policy of "including more than a token number of black 20 students," and notes that this means that "some attention" 21 must be paid to the distribution of students within the class. 22 That's critical mass. Critical mass is necessary to achieve 23 the benefits of diversity that comes from having a racially 24 and ethnically diversed student body. 25 "So long as the university proceeds on an GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 62 1 individualized case by case basis, there is no 2 warrant for judicial interference in the 3 academic process." 4 That's Justice Powell. 5 And literally every important way, our Admissions 6 Policy is indistinguishable from that approved by the Supreme 7 Court in Bakke. 8 I think this point requires just a little 9 elaboration because some of the questions that have come up 10 during the trial have raised some other issues. During the 11 trial and actually and is, Mr, Kolbo and the Court I think at 12 various times have raised issues about how selectivity played 13 in all of this, and maybe we should have random selections. 14 At some point I think I offered to bring President Bok to talk 15 about that, and that was not necessary, we concluded. I still 16 want to address the issue anyway. 17 Can we achieve what we think is important by using 18 a lottery, some random selection. Here's my response: First, 19 it won't work given our applicant pool. Take Professor 20 Larntz's large cell, the one that I was just describing, where 21 I asked, he was asked if you drew the large cell and the odds 22 ratio would go down to two. That cell contained almost all of 23 the students that we made offers to in 1995. If we randomly 24 made offers to that cell, the number of underrepresented 25 minority students that are represented in that cell, would GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 63 1 mean that we would see a fifty percent drop in 2 underrepresented minority students, that we would make offers 3 to. That's how the pool size and the distribution across our 4 applicants works. That's how it works. 5 Another variation on this same idea is that wo do a 6 file-by-file review without regard to race and identify people 7 we could put into that cell, and then we do another random 8 selection, a lottery. But I think here's the main point here: 9 If none of those other factors that we take into account, 10 leadership, for example, correlate with race, and I don't 11 think anyone is claiming that any of those other factors 12 correlate with race, if they don't correlate with race, the 13 results would be exactly the same as if you didn't. A fifty 14 percent drop, okay? The plan just wouldn't work. 15 But there's a more fundamental point. It is that a 16 policy -- 17 THE COURT: Your time is up, but we have an 18 agreement that you can -- 19 MR. PAYTON: I just have a few more minutes, your 20 Honor. 21 THE COURT: Go on. 22 MR. PAYTON: There's a more fundamental point here. 23 Is that a policy operated that way would not be a policy 24 designed to obtain the educational benefits of diversity. As 25 the testimony in this case has made clear, getting the rich GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 64 1 class that we do doesn't happen by accident. You need to go 2 and look for it. Think about students X, Y, and Z that are in 3 the policy. We can't be sure that they would be admitted 4 under a system that just randomly selected. The Law School 5 would certainly not be able to select them, and that's the 6 central point. We aren't doing this just for numbers. This is 7 not racial balancing. We are in this get the benefits of 8 diversity. And it's certainly not about elevating racial 9 diversity above all other things that we do, or even other 10 aspects of diversity. We read the whole file. We think about 11 all sorts of other factors. 12 That is what Justice Powell was talking in Bakke 13 when he talked about the importance and the legitimacy of 14 considering race as one of many factors. It's important to 15 realize that that is what the compelling interest in diversity 16 is. And once we understand that, it's apparent that some 17 other system, even if it would get racial diversity, but that 18 would do it at the expense of some other ways -- of the other 19 ways in which our careful file-by-file admissions process 20 improves the Law School, is not an alternative means or a more 21 narrowly tailored system to achieve the benefits of diversity. 22 My final point here -- I'm going to go back to Bakke, 23 and it's a point I made a little bit earlier in this argument, 24 and it's this: Nothing the Law School does in the admissions 25 process is different in any way at all from the system GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 65 1 expressly approved in Bakke. Nothing at all. There's just not 2 any evidence at all. And, therefore, if Bakke says that 3 Harvard, the most selective school in the country, can use 4 race and ethnicity and grades and test scores, and still be 5 Harvard, then Bakke says that the Michigan Law School can be 6 the Michigan Law School. That's what academic freedom is all 7 about. We can be, and we can define who we are. And we still 8 can do the things that Bakke says we can do. The Court said 9 Harvard could be Harvard. 10 If there were some race neutral plan that were 11 available, that required Harvard to change, Bakke would have 12 required Harvard to change. It there's some plan that 13 requires us to change, it would be inconsistent with Bakke. 14 I'm at just about the end, your Honor. 15 At the summary judgment argument, the Court inquired 16 of me whether or not Bakke had any precedent. It was an 17 excellent question. The answer I gave referred to Bakke 18 itself. In Bakke, Justice Powell noted that the benefits of a 19 racially and ethnically diversed student body matter as he 20 said "even at the graduate level" where he as he said, "our 21 tradition and experience lend support to the view that the 22 contribution of diversity is substantial." And he concluded 23 by quoting these two sentences from Sweatt by Painter, the 24 1949 case in which the Supreme Court found segregated legal 25 educational unconstitutional. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 66 1 "The law school the proving ground for legal 2 learning and practice, cannot be effective in 3 isolation from the individuals and institutions 4 with which the law interacts. Few students and 5 no one who has practiced law would choose to 6 study in an academic vacuum, removed from the 7 interplay of ideas and the exchange of views 8 with which the law is concerned." 9 Your Honor, this case is about more than a law 10 school classroom. It's about our future leaders and our 11 society. "It is not too much to say" Justice Powell said in 12 Bakke, "that the `nation's future depends upon leaders trained 13 through wide exposure' to the ideas and mores of students as 14 diverse as this Nation of many peoples." 15 We have testimony about the consequences of 16 Proposition 209 in California. It has resulted in other wise 17 eligible African-American, Latino and Native American students 18 not being at UC Berkeley and UCLA. The few underrepresented 19 minority students at those campuses are isolated and clearly 20 less than would be necessary to constitute a critical mass. 21 Educationally, this is a catastrophe. For those 22 students and for the white students and the Asians who are 23 there, and for the larger university, and for California, and, 24 of course, given the importance of California in our country, 25 it reaches us as well. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 67 1 No one doubts the need or value of our 2 educational mission. Bakke was profoundly correct in its 3 statements regarding the educational value of a diversed 4 student body. "Compelling" is almost too tame a word. This 5 is, in our judgment, an educational necessity. We ask this 6 Court to find our Admissions Policy fully Constitutional, and 7 to let us go about our important mission of educating our 8 students, future members of the bar, future members of the 9 bench, leaders of our communities and of our country. 10 Thank you, very much. 11 THE COURT: Thank you, Mr. Payton. 12 Let's take again five -- whatever it takes to get 13 the other group of students in. 14 (Court recessed, 10:50 a.m.) 15 (Court reconvened, 10:55 a.m.) 16 THE COURT: Okay. Ms. Massie, you may proceed. 17 MS. MASSIE: Hello, Judge Friedman. 18 Mr. Payton ended up by speaking a little bit about 19 Sweatt v Painter. I want to take us several years forward, 20 and talk briefly about Brown v Board of Education. 21 Out in the hallway, just outside the doors to this 22 courtroom, there's a very famous Norman Rockwell painting of a 23 black child, a girl of six or so, in completely spotless 24 shoes, being escorted by four white men who are armed Federal 25 Marshals. She's carrying her school things and her head is GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 68 1 High with a rotten tomato splattered on the ground behind her 2 in a racist slur written on the wall behind her. And she's 3 surrounded by those armed Federal Marshals as she walks into 4 school. 5 Her name is Ruby Bridges. And the painting depicts 6 the first day of her first grade class when she was the first 7 black student to go an otherwise all white school in New 8 Orleans which had recently been put under a federal court 9 order to desegregate. 10 Ruby Bridges was born in 1954, the year that Brown 11 was decided. Her grandparents were Mississippi sharecroppers. 12 Her mother and father argued over whether to send her to the 13 all-white school. Her father had fought in the Korean War in 14 a segregated unit, and had become cynical while in that 15 experience and felt certain that black people would never be 16 treated as the equals of white people no matter how often and 17 how thoroughly they proved their equal talent and loyalty and 18 determination. 19 But Ruby Bridges' mother who had worked in the cotton 20 fields until the day she gave birth to Ruby Bridges insisted 21 that Ruby would have a better education and a chance at a 22 better job and a better life if she were part of integrating 23 the schools of New Orleans. She convinced Ruby's father, and 24 she convinced Ruby's father not just on the basis of Ruby's 25 prospects according to books that Ruby Bridges has written, GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 69 1 but on the basis of the prospect of all black children in the 2 United States. 3 So Ruby Bridges walked through a mob to get to school. 4 She walked through threats and slurs being screamed at her. 5 She walked past coffins, models of coffins into what 6 segregationists had placed black dolls. Every day, armed 7 Federal Marshals came to her house to pick her up to take her 8 to school. As a result of her attendance at this school, 9 riots erupted throughout New Orleans. Her father was fired. 10 Her grandparents who still lived in the state Mississippi, a 11 whole different state, were kicked off of their sharecropping 12 holdings because Ruby Bridges went to that school. 13 She was the only child in her first-grade class, the 14 single and solidarity child in her first-grade class for her 15 first-grade year because the white parents had taken their 16 children out of the class. And at recess she couldn't go 17 outside to play because she wouldn't have been safe on the 18 schoolyard. 19 The basic underlying question before the Court is: 20 Whether that year of walking through a violent mob every 21 school morning in the year 1960, not very long ago, whether 22 that year of walking past death effigies, and through slurs, 23 of learning the alphabet alone, and watching white children 24 play through the window during every recess, whether that year 25 in the life of Ruby Bridges will have been lived, will have GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 70 1 been survived, will have been undergone in vain. 2 We've made real progress. But the amount of 3 progress that we've made is still in all completely and 4 unacceptably limited. Our progress towards equality and 5 fairness and integration has always required tremendous, 6 conscious efforts and those are the efforts that are required 7 now. 8 As Gary Orfield testified, the state in which this 9 Court sits is now far more segregated than the Louisiana and 10 the Mississippi in which the Ruby Bridges' story, in which 11 Ruby Bridges' history took shape. 12 We cannot afford false comforts. We can't afford 13 complacency. And we can't pretend that there's nothing that 14 we can do. Our options are: We can keep moving forward, or 15 we can fall backward, closer to the conditions that Ruby 16 Bridges faced, and faced very recently, just a generation ago. 17 So to us, Judge, the real question is: Is the painting 18 in the poster just outside the courtroom doors, there to put 19 our minds falsely at rest, to put our minds to sleep, to make 20 us feel a shallow self-satisfaction, or is it to remind us of 21 how far we've come of what's taken, and what it's cost to come 22 this far, of how precious, how terribly precious our progress 23 is, how hard fought it is, and how far we still have to go. 24 It's in that context that I want to talk about the 25 three factual questions you posed for the parties. Your first GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 71 1 question: To what extent -- I'm paraphrasing this -- is race 2 a factor in admissions at the University of Michigan Law 3 School? Our answer I think you already know is: Not enough, 4 not merely enough. Race should be much more of a factor in 5 admissions at the University of Michigan Law School. I'll 6 come back to that in more detail in a moment. 7 Your second: Is there a double standard under which 8 minority and whites students are treated differently? Our 9 answer to that: There's absolutely a double standard, but 10 it's the opposite of the one implied by the question and by 11 the plaintiffs' lawsuit. There's a systematic double standard 12 that operates to favor white people, that operates to the 13 disadvantage of minorities, of black, Latino and Native 14 American applicants. And affirmative action operates to 15 offset that double standard incompletely. To off set it a 16 little bit, to make it less of a double standard. 17 Your third question: Does affirmative action have 18 the effect of making things more fair given the bias and 19 discrimination and inhere in admissions criteria like the 20 SLAT, and undergrad grades, the discrimination, bias, 21 unfairness that are given effect by, that are operationalized 22 by those numerical criteria. And as you know, our answer to 23 that question is that that is so without any doubt. 24 Much on the evidence on our points about grades and 25 the LSAT is completely uncontested, not just uncontroverted by GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 72 1 proof, but not contested at all by the plaintiff. 2 On the question of the extent to which race is a 3 factor in admissions at the University of Michigan Law School, 4 the Law School considers race in admissions as Mr. Payton has 5 just argued to the extent that it's needed to achieve a 6 critical mass of minority students. This approach is clearly 7 in compliance withe the letter and the spirit of the Bakke 8 case, and with any understanding of the importance of 9 diversity and integration in legal education. 10 The alternative, the alternative to ensuring the 11 enrollment of a critical mass of minority students is 12 tokenism. That's the unacceptable situation that's been faced 13 by Chrystal James throughout her law school career at the 14 University of California Los Angeles post affirmative action 15 there. And it's the situation that's been -- that was faced 16 by John Hope Franklin throughout his academic career as a 17 student because despite all of John Hope Franklin's 18 accomplishments, despite all the recognition he's achieved at 19 every stage of his intellectual life, he told us that he has 20 never been able to escape feeling like a token. John Hope 21 Franklin has always felt like a token until he arrived quite 22 recently at the Duke University History Department which was 23 much more integrated than the other departments where he had 24 been hired, where there were already black scholars, black 25 historians. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 73 1 Chrystal James in some of the most moving testimony 2 in this case made it clear that the token numbers at UCLA, the 3 fact that there was only one other black student in her class, 4 the lack of a critical mass of minority students has 5 absolutely thwarted her legal education, and harmed her own 6 sense of herself, of her potential, of her promise. 7 Without enough attention to race, to enroll a 8 critical mass in legal education every black and Latino and 9 Native American student would face the situation like the one 10 that Chrystal James described; like the one that John Hope 11 Franklin has faced his entire life. That situation has much 12 more in common with a medieval ordeal of some kind than it 13 does with the legal education. And it means that the student, 14 the black, the Latino, the Native American student is 15 constantly either warding off or absorbing a set of 16 stereotypes and stigmas. 17 It would be unacceptable for the Law School to do 18 anything less than to try to enroll a critical mass of 19 minority students.Again, there's no question that the Bakke 20 case permits their doing on. 21 Where we have achieved the measure of integration 22 and diversity has profoundly benefitted everyone as testimony 23 across from several generations and from across this entire 24 continent repeatedly made clear over the course of the trial. 25 In fact, our only quarrel with the Law School on this point is GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 74 1 that we don't believe they've yet succeeded in reaching 2 critical mass. The School has made real steps towards 3 desegregating, and toward reaching the intellectual gains that 4 accompany diversity. But nevertheless, Walter Allen's study 5 and other testimony makes it clear that there isn't yet a 6 critical mass at the Law School which is to say that more 7 blacks, more Latino, more Native American students must enroll 8 there in order for the students to be able to function freely 9 as law students in order to dispel stereotypes and stigma, and 10 in order to counter-act the very extreme pressure that those 11 students face in their isolation. 12 Walter Allen testified that the students at the Law 13 School, the minority students at the Law School feel that they 14 are under-seized, they feel out of place in territory that's 15 defined by the putative but very equally felt entitlement of 16 white students to be there at the Law School in 17 contra-distinction to the sense that the minority students get 18 that they're interlopers, that they're not treated as having 19 the same right to be there, they're not treated as being 20 equally qualified in particularly post the initiation of a 21 lawsuit like this. The stigma that those students face 22 increases dramatically. Just like Chrystal James pointed out, 23 that it took going to UCLA after the elimination of 24 affirmative action for her to feel the full stigma of racism 25 as it applies to her sense of her own abilities and they were GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 75 1 regarded by others around her. 2 But the problems at the Law School are essentially 3 problems, fundamentally problems of too few numbers. They're 4 problems that you can solve, that you can help solve. We need 5 a holding here that will allow the Law School to enroll 6 greater numbers of minority students so that there can be a 7 critical mass there. A holding that says that the Law School 8 can take inequality into account, can take the need to offset 9 inequality into account in making its admissions decision, in 10 designing its affirmative policy, will make the students at th 11 Law School, all of them, of all races, have a far richer and 12 better legal education. 13 Your second question: Is there a double standard? 14 Mr. Kolbo suggested that the Intervenors' view is that we 15 think there's a double standard, we think it's fine, we think 16 it's justifiable. That's not so. We think the double 17 standard runs the opposite way from what the plaintiff 18 contends and what the question suggests. The evidence shows 19 indisputably and overwhelmingly that there's a built-in double 20 standard in education generally, not just society at large, 21 but that's true too, and there was evidence of that at trial, 22 but in education and specifically in law school admissions, 23 that that double standard favors white students and white law 24 school applicants. 25 There are several components of this double standard GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 76 1 which fundamentally reflects and expresses how much race and 2 racism continue to be a defining access in this society? But 3 the components of the double standard combine to make race a 4 systematic element of education and admissions. Systematic to 5 use the words of Walter Allen following his study of feeder 6 campuses to the U of M Law School and the U of M Law School 7 itself. 8 There's a segregation and inequality in K through 12 9 schooling and that you heard about from a number of witnesses 10 including Erika Dowdell, including Gary Orfield, including 11 Eugene Garcia. Beyond that, beyond the connections between 12 race and class in this country, shameful enough fact in 13 itself, there's a set of ways in which race operates 14 independently of class in this context. There's a set of ways 15 in which race and racism structure the educational experiences 16 and performance of even the most economically privileged 17 minority student. 18 These modes include differences in material 19 resources. They include unequal treatment that is racialized, 20 that is based on race, that is racist by even very well 21 meaning white people. They include the stigma and the false 22 racist stereotype of intellectual inferiority that effects 23 every black student regardless of class, and that it also 24 effects Latino and Native American students. 25 Those stereotypes and stigmas have an impact on GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 77 1 academic performance that can be and has been empirically 2 demonstrated and proven. These dynamics are described in the 3 work of Claude Steele, and other educational experts who 4 testified in the case. And perhaps most vividly by the 5 students who testified for the Court. It's very difficult but 6 it is imperative for white people who haven't ever faced the 7 systematic degradation of their mental capacity and worth 8 based on race, to grapple with the extent to which their own 9 privilege in this regard has shaped their experiences, to 10 grapple to the extent to which their educational achievements 11 no matter how hard fought, no matter how impressive, are 12 always made, are always reached under circumstances and 13 conditions that favor them while disadvantaging and 14 disfavoring the success of minority students. 15 There are other questions that are involved in the 16 resolution of whether or not there's a double standard in 17 place in law school admissions including differential access 18 to test preparation classes, basic questions of test 19 construction, questions of what undergraduate GPA means in the 20 context of race and racism in this society, and in our 21 educational system. And I'll return to some of those shortly. 22 The bottom line here, Judge Friedman, is that 23 there's a sharp double standard, and that to take account of 24 race and racism is the only way to offset the double standard 25 arises out race and racism. There is no other way to deal GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 78 1 with it than to take account of race and racism. So 2 affirmative action is the only way to reduce what would 3 otherwise be an untrampled double standard in admissions. 4 We can begin to measure the extent of the double 5 standard -- and I'll talk about this more in a bit -- by 6 looking at what has happened in California. Another way of 7 saying that is we can begin to measure the extent of double 8 standard of unfair inequality that is pressed on black people 9 and other minorities through the educational system that is 10 ratified and operationalized by admissions systems when they 11 dibby out opportunity and deny opportunity on the basis of 12 opportunities that have already been unfairly and unequally 13 distributed by looking at the disparities between 14 representation in a given educational program, and 15 representation of different populations in the population as a 16 whole, that the starting point for figuring how much of a 17 double standard there is because we start from the premise 18 that we are all created equal. Any disparities in performance 19 and attendance at law school and so on come out of problems in 20 our educational system, not problems in black children, then 21 young adults, then law school applicants; Latino children, 22 young adults, law school applicants; Native American children, 23 young adults, law school applicants. Those are problems of 24 race and we have to deal with them by taking account of race. 25 Your third question, does affirmative action have the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 79 1 effect of reducing the unfair impact of using test scores and 2 grades in law school admissions. Here, I think the evidence 3 is absolutely clear, that affirmative action is the one way of 4 taking account of the unfairness and bias that are put into 5 effect by the use of those measures. And as I said earlier a 6 lot of this evidence is not just un-countered by evidence from 7 the plaintiff, but completely and totally uncontested. 8 Undergrad GPAs and LSAT scores are thoroughly 9 saturated with unwareness and bias. They don't measure real 10 achievement. They don't measure the capacity to learn law. 11 And as Rick Lempert testified yesterday, they certainly don't 12 measure the capacity to practice law and to be successful in a 13 law practice. 14 Walter Allen's testimony showed that undergraduate 15 GPAs -- and again he was focused on the feeder schools to the 16 University of Michigan Law School reflect continuing problems 17 of racism and bias and the pressure of stereotypes, the 18 downward pressure on academic performance of stereotypes that 19 persist even for the best prepared and highest achieving 20 minority students, the student who've overcome countless 21 burdens that their white counterparts have not had to overcome 22 to arrive at these campuses, to have the ambition to go to law 23 school still face a set of factors that make their GPAs means 24 something different. They mean something different in those 25 grids that Professor Larntz is found of. They simply don't GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 80 1 mean the same thing across race. And the Court should not 2 regard them as meaning the same thing across the race. 3 After the testimony that's been presented here it 4 would be to simply ratify the racism and racial dynamics that 5 produce those differences to regard those grades as meaning 6 the same thing across race. 7 Another source of differences in GPAs, of course, 8 differential K through 12 education. I mentioned that briefly 9 before. It's clearly the case that for students who arrive on 10 a campus like the U of M Ann Arbor, or UC Berkeley, or Harvard 11 of MSU, coming out of Cass Tech like Erika Dowdell, versus 12 coming out of a better funded mostly white suburban school, 13 there will be an impact on GPA. In some sense that's prior to 14 the question of when you get there, the racism and the racial 15 dynamics that are still there to impede academic performance. 16 They're in some ways related, in some ways different things. 17 Both very powerful factors that show up in aggregate 18 differences in GPA. Affirmative action has the effect of 19 offsetting those differences, of offsetting what would be the 20 astonishing unfairness of looking at numbers, credentials that 21 are shaped by racism and unfairness, and simply rubber 22 stamping them, ratifying them, using them as a basis for 23 imposing more hardship, more exclusion, less opportunity at 24 every stage of the educational process. 25 The evidence on LSAT is just as compelling, Judge. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 81 1 There's untested evidence, for example, from David White, 2 setting the bias I've just discussed in grades, shelfing that 3 completely for the sake of argument. He controlled for grades 4 at the same undergraduates schools and found that 9.2 gap 5 persisting in LSAT scores between black and white law school 6 applicants. Two grads from Michigan State, or from Yale, or 7 from whatever school, but the same school, they have the same 8 GPA, they have a 9.2 point gap, a gap of 9.2 points. 9 You could take Professor Larntz's grids and -- 10 again, this is neither controlling for grades. It's only a 11 step toward what would be fair and add 9.2 points to the LSAT 12 scores of every black students in those grids. That would be 13 far less of a double standard than what the plaintiff is 14 proposing. It wouldn't be enough because it's not controlling 15 for the differences in grades. They are used as the base 16 measure by David White, and it's not controlling for all the 17 test-making dynamics that Professor Shapiro told you about, 18 the mechanics of test production, the selection of test items 19 that mean the big gaps are reproduced and have a tendency to 20 be increased statistically over time by question selection 21 procedures. Those tests are made in a completely internal 22 process. There is no external reference. And it's just a 23 circular process that reproduces biases and test score gaps. 24 And what the plaintiff would have you do is ratify that 25 process and ratify in inequalities and the unfairness that it GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 82 1 produces. 2 First of all, the plaintiffs they're not defenders 3 of the LSAT, and they're not defenders of any particular 4 criteria, that's their whole proof. That's all their proofs 5 in this case are based on. That's their proof of 6 discrimination and those aggregate differences, but those 7 aggregate differences don't prove discrimination against white 8 people, Judge, they prove discrimination against black people, 9 against Latinos, and against Native Americans. 10 You just can't eliminate the LSAT. We agree with Mr. 11 Payton on that, as on most things in the case, the one 12 exception being whether there's critical mass at the Law 13 School now. You can't just eliminate the LSAT. That would be 14 a complete evasion of the problem. That would be a dodge. 15 The SLAT is only one measure that ratifies, that re- affies 16 (sp), that puts into effect, compromises bias and 17 discrimination. There's also grades. There's anything else 18 you could select. You can't use a cutoff point that relies on 19 the LSAT because you would have the exact same problem. You 20 can't -- you would end up sensibly with a resegregated 21 profession, a resegregated law school because there is -- 22 given the bias in the test, and given the distribution curve, 23 there is no cutoff point that you can select for that purpose. 24 Even if it would be proper to select a cutoff point in 25 psychometric terms, which it would not. But there is no GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 83 1 lottery solution to this situation. 2 Race is the dynamic, racism is the problem. We need 3 to take those into account. There's no shortcut. 4 I want to talk briefly about the question of 5 selectivity. The truth is, Judge Friedman, legal education in 6 general is highly selective. There are more people trying to 7 go to law school than there are slots for them. That's one of 8 the basic reasons why the supposed tension between selectivity 9 and diversity that's been invoked in the case is a false 10 tension. 11 We can't have a lottery or a cutoff for the reasons 12 just discussed. There is no solution of eliminating the LSAT 13 and grades. That won't work because it doesn't get at the way 14 any criterion is going to be effected with racial bias and 15 discrimination. 16 There are going to continue to be schools like the 17 University of Michigan as Gary Orfield and Eugene Garcia 18 testified are schools that train leaders. There are flagship 19 schools. They're going to be more competitive in admissions 20 than most other schools. The only question is: Will they be 21 reserved exclusively for white people. Or will they be 22 democratic institutions of the state that reflect the 23 diversity of the state's population that moves toward a 24 measure of integrating the leadership of our society, of 25 integrating an integrationist leadership of our society. GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 84 1 Those schools in addition to themselves matter, key 2 the rest of the system. If affirmative action is eliminated 3 at schools like Berkeley, Michigan, other top state schools, 4 it gets eliminated throughout the legal education system, and 5 throughout the higher education system. That would be the 6 outcome of the wrong holding in this case. And what that 7 would mean is not just a redistribution. 8 Dean Garcia and Professor Lempert were both very, 9 very helpful on this point. Dean Garcia said look what we've 10 seen in California is the resegregation of the UC system. But 11 it's going to get worse because at the schools which are less 12 competitive, less well regarded, where it isn't as easy to get 13 into grad school at the other end, to get into law school at 14 the other end, to get a high-paying job at the other end, to 15 have the kind of opportunities that higher education is 16 designed to further at the other end. At those schools now, 17 two we're seeing reductions in the numbers of underrepresented 18 minorities as those schools become increasingly competitive 19 with the so-called cascading effect of students who are black 20 and Latino and Native American not being admitted to Berkeley 21 or UCLA, and going -- being admitted to schools that are 22 further down than in a UC hierarchy. 23 But as Eugene Garcia testified, essentially what 24 "cascading" means in the end is that black and Latino and 25 Native American students will cascade out of the system GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 85 1 altogether. 2 We have a study that was conducted on law schools 3 specifically that Rick Lempert testified about yesterday that 4 made the point in the specific context of legal education, 5 Judge. If affirmative action is eliminated in legal 6 education, it doesn't mean that there will be separate and 7 unequal tracks of legal education, not that we would find that 8 in any way acceptable. But it doesn't mean that. It means 9 something much worse. It means that legal education would be 10 essentially all white with the exception of the historically 11 black colleges, at the state universities which have law 12 schools. Legal education would be virtually all white. We 13 would be going back to something just, just shy, just this 14 side of Sweatt v Painter if we were to do that. 15 The statistical analysis proves it beyond any 16 question. It's uncontested. What it would mean: Is the 17 resegregation of the legal profession. That's what it would 18 mean. There is no conflict in the context of legal education 19 in any event. We would argue this more broadly for higher 20 education. But sticking with legal education at issue in this 21 case, between the question of selectivity and diversity and 22 integration that can be resolved by simply becoming less 23 selective. There are more applicants than there are spots, and 24 we need integration in every law school, in every law school. 25 A slightly different perspective on this question: We GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 86 1 say you don't even have to reach the University's Bakke 2 dissent. That's because the plaintiff has not made out a case 3 of race discrimination. There's no prima facie case here. 4 They're relying on Larntz's aggregate differences in numbers. 5 Whether they rely on the statistics or simply on the averages, 6 or whatever part they're relying on, it doesn't matter, that's 7 what they're relying on, and those numbers don't show 8 discrimination against white people. They haven't even 9 contested the evidence against what those numbers mean, and 10 how those meanings are different across race. How you have to 11 regard them as being different across race after everything 12 you've heard from the people who come up here to take the 13 stand to testify about what's behind those numbers, about what 14 those grades mean and what those test scores mean, Judge. 15 They don't mean the same thing across race. And it would be a 16 travesty for this Court to regard them as meaning the same 17 thing across race. That would be a double standard. That 18 would be a double standard. 19 And a final perspective on your third question: How 20 much should race matter in law school admissions? And to that 21 we respond: It should matter much more than it does. It 22 should matter enough that it offsets, that it fully offsets, 23 instead of just starting to offset the racism and bias that 24 saturate the credentials and that saturate the educational 25 experiences of all students, but differentially depending on GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 87 1 their races. 2 There, again, we suggest the fair starting, a fair 3 measure of whether race is being sufficiently taken into 4 account is the population for the relevant unit. That could 5 be the state. It could be the nation. In the case of a law 6 school like the University of Michigan, it would probably be 7 some of both, but that's a starting point for analyzing 8 whether race is being taken into account in a way that is 9 sufficient to offset the unfairness that's operationalized in 10 our educational system, whether it's being taken into account 11 enough to avoid simply perpetuating and intensifying the 12 existing inequalities in education. 13 When it's not taken into account enough, what happens 14 is what happened in California. We have a grand social 15 experiment unfortunately in California. We know what the 16 plaintiff's case looks like on the other end if it's 17 successful. And it's frankly hard to hear the plaintiff puts 18 herself in Brown versus the Board of Education when what's 19 being fought for is the result of that social experiment, is 20 the resegregation of the UC system. Is what Tania Kappner 21 described yesterday in her students, in what they their 22 futures as being, and in the terrible struggle she has to 23 maintain their level of hope of engagement in their own minds, 24 in their intellectual possibilities that they know. And until 25 they reverse their ban which they are all fighting to do, they GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 88 1 have no chance of getting a decent higher education in the 2 state of their birth not matter what they do, how hard they 3 try, how many hours they spend doing their homework. 4 That's the outcome of the social experiment that's 5 being proposed for this state. We don't need it here, Judge. 6 It's just like Chrystal James said. She said her co-student, 7 the only other black student in her class, said -- because she 8 didn't want to testify, you go there and you tell them what 9 happened here and not to do it there. We want to repeat that 10 message to you because we know what this means. It's been 11 done in California. They're fighting hard to reverse it. We 12 have very confidence that they will succeed, but we don't need 13 to go through five, six, ten years of agony, of resegregation, 14 of increasing inequalities, of young people losing hope in 15 this state. 16 I'd like to go back to Ruby Bridges briefly, Judge, 17 and to other struggles of desegregation which extended into 18 higher education. As you know, Gary Orfield described 19 affirmative action as voluntary deseg plans for higher 20 education. The desegregation of higher education has not 21 always been voluntary. 22 And I want to remind the Court of Mississippi in 23 1962, when James Merridith desegregated the University of 24 Mississippi, and dozens of people died, literally fought and 25 died over the question of whether that campus would be GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 89 1 integrated. There was a small army of federal troops there on 2 the campus as I'm sure the Court is aware, and there were 3 armed battles between segregationists and federal forces. 4 It was an echo of the Civil War that Eric Foner 5 testified about. The Civil War that really stood for the 6 nation's decision to pay an incalculable price to move toward 7 our national goals of equality and democracy and freedom. It 8 was a war over the question of black equality and freedom, and 9 it was the costliest and the bloodiest war in this nation's 10 history. 11 In fact, the United States lost more lives in that 12 war than it has lost in all the other wars before or since. 13 Ten times as many American lives as in the whole span of the 14 Vietnam War. And the reason why and the question of race and 15 race equality is so fundamental to this society. It took that 16 many lives and it was worth that many lives, and that was the 17 collective judgment of the nation. 18 Our progress towards more democracy and freedom, 19 toward greater equality for all has always taken very serious 20 effort. It's never been quick and painless. But we have made 21 real progress. And the level of progress for all us has 22 always been in some sense keyed because of the history which 23 Eric Foner testified about. Not that he was trying to say in 24 any way that affirmative action is a measure to compensate for 25 the history of discrimination in this country, but that GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 90 1 nothing ever could. There's no affirmative action program 2 that could make up for it. It's not that. It's how do we 3 move forward. It's how do we move forward. That's what the 4 testimony has all been about. 5 But the progress that we've made in general towards 6 greater democracy, equality has been keyed to the question of 7 black equality because of the history of a slave system 8 Professor Foner described and so on. And the progress that 9 we've made to quote John Hope Franklin. And I'm quoting him 10 exactly, "has been miraculous." We've made miraculous 11 progress. 12 To us what that means, coming a person who the night 13 before he was to receive the Presidential Medal of Freedom, 14 was handed a coat and ordered to check it just because he was 15 black, and it was presumed that he was a person who was there 16 to check coats, is something that we should all aspire to, and 17 something that should give us great hope in our common cause. 18 John Hope Franklin's lack of bitterness of what he 19 has faced in his life, he's angry, yes, but he's not bitter, 20 and he knows that we can keep moving forward if we try. His 21 lack of bitterness, his optimism should give all of us 22 optimism. 23 And in a sense that's so, Judge, because to the same 24 extent, to the precisely same extent, as our case has been 25 directed at, the fundamentality and the importance, and the GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 91 1 significance of race in our common life has been directed at 2 our shared humanity. It's been directed at our shared and 3 common prospect, to the same exact extent as it's been 4 directed at the question of race and the racial problems and 5 divisions, and unfairness, and inequality that we still face. 6 It is about our common humanity in the end. 7 Somebody like John Hope Franklin embodies the truest 8 express of that humanity, that understanding and grace. 9 That brings me to the most important and the most 10 basic thing that every one of our witnesses had to say to the 11 Court, to the public, but in particular to the Court, that we 12 all have the same future, all of us have the same future. The 13 future of affirmative action and integration is my future, and 14 it's your future. And it's my future in part because I'm a 15 woman and the measures -- the gains that women have made in 16 the last generation are due overwhelming to the civil rights 17 movement and to affirmative action. Those programs have so 18 expanded democracy and rights to participation economically, 19 intellectually, socially in education, politically in every 20 way, that's what we owe our progress to. It's my future. And 21 I noticed from the names on the plaques in your chambers, 22 you've hired a lot of women clerks over the years. And it's 23 their futures, too. It's all of our futures. 24 It's also my future as a person who is white, and as 25 a human being in this society. It's a future of everyone in GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 92 1 this room regardless of age, regardless of gender, regardless 2 of race. It's John Hope Franklin's future, Faith Smith's 3 future. It's Connie Escobar's future. It's Frank Wu's 4 future. It's the future of Tania Kappner's students. It's 5 the future of the thousands of people from across the state of 6 Michigan who have gathered several times now in the Ann Arbor 7 campus, to declare their support for affirmative action on 8 Days of Action that have been put together on that campus. 9 It's the future of the tens and hundreds of thousands of 10 working class and poor white people who Gary Orfield has 11 testified who faced it tremendously from the way in which 12 affirmative action programs including in the state of Michigan 13 opened up higher education to lower-income white people, 14 democratized opportunity. The extent to which affirmative 15 action policies operated as a wedge that broke down, started 16 to break down in trench systems of privileged and of 17 unfairness. 18 It's the future of the student from the U of M and 19 from Detroit high schools who have filled this courtroom on 20 almost every day of this trial. It's your future, too. It's 21 your future, too, Judge Friedman. We'll move together either 22 forward -- we'll move forward together, or we'll move back. We 23 can make more steps toward equality and toward justice and 24 toward democracy, or we can allow ourselves to be pushed 25 backward, crippled, hampered, fall short of our common and GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 93 1 individual potential. It's all of our future. We all have 2 the same future. Help make it a bright one. 3 THE COURT: Thank you. 4 I want to take the time and I've said it many, many 5 times before and I think it cannot be said enough, to the 6 lawyers and to the way that they have conducted themselves in 7 this case. I am an advocate of civility between people. And 8 oftentimes I don't always see it in our professional and it is 9 disturbing. And there's going to come a time I hope not a 10 long time, but it appears not too long, that I'm going to take 11 a leadership role in this court, and one of the issues that I 12 have is the issue of civility. And this case is going to be 13 the textbook case. This case has been going on a long time. 14 I think we have shown that lawyers can conduct themselves in 15 the most professional, professional way, with sincerity and 16 vigor for their clients, but also civility towards each other, 17 but as important as each other, towards witnesses, towards the 18 kinds of things that are important. And as I have indicated 19 as I've said many, many times I appreciate it. I think our 20 system appreciates it. And I think you have well served each 21 of your clients, not only in terms of the lawyering that you 22 have done, but the civility that you have shown towards each 23 other, for the Court, very frankly, towards the witnesses. And 24 it is a textbook case. 25 Whenever you have a case that's been going on since GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 94 1 1997, and there is only one dispute that I had to decide that 2 was -- and the parties were able to sit down and to work out 3 the kinds of things that are important, the only dispute I had 4 to decide was the legitimate kind of dispute that didn't take 5 civility. There were outside parties, students of that 6 particular dispute. So I would be remised and I've talked 7 about it on many, many occasions. I've talked about to 8 colleagues, to other lawyers, and so forth, that each of you 9 have well served the clients to whom you represent. You 10 obviously don't agree on lots of issues, but you were able to 11 do the finest and the best lawyering. And for that I think 12 society as well as our profession have been well served. So I 13 want to thank you for that. I will make every attempt to do 14 the best I can, as I think I've indicated before. It's a 15 tough case. It's probably the toughest case I've had to be 16 involved in. I can assure the lawyers that the efforts that 17 you have put in, the sincerity that you've put in, I will give 18 back. I will do the best that I possibly can no matter what 19 the outcome is. I can't tell you what the outcome is. And I 20 will try to get you a decision as rapidly as possible, but 21 that time is not my important consideration. My important 22 consideration is to give each piece of evidence, each argument 23 the kind of attention that it deserves based upon the 24 lawyering and the positions of each party and the sincerity of 25 each party. So I can't tell you when the decision will come GRUTTER -v- BOLLINGER, ET. AL. BENCH TRIAL - VOLUME 15 FRIDAY, FEBRUARY 16TH, 2001 95 1 out. All I can tell you is I'll do it in a manner that will 2 hopefully be consistent with what my duties are and being fair 3 to both sides. 4 Okay, we'll stand in recess. 5 (Proceedings concluded, 11:45 a.m.) 6 7 CERTIFICATE 8 I, JOAN L.MORGAN, Official Court Reporter for the United 9 States District Court for the Eastern District of Michigan, 10 appointed pursuant to the provisions of Title 28, United States 11 Code, Section 753, do hereby certify that the foregoing 12 proceedings were had in the within entitled and numbered 13 cause of the date hereinbefore set forth; and I do further 14 certify that the foregoing transcript has been prepared by me 15 or under my direction. 16 17 ____________________ JOAN L. MORGAN, CSR 18 Official Court Reporter 19 Detroit, Michigan 48226 20 Date: __________________ 21 22 23 24 25 GRUTTER -v- BOLLINGER, ET. AL.