1 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF MICHIGAN 3 SOUTHERN DIVISION 4 BARBARA GRUTTER, 5 For herself and all other 6 Similarly situated, 7 Plaintiff. 8 -v- Case Number: 97-CV-75928. 9 LEE BOLLINGER, JEFFREY LEHMAN 10 DENNIS SHIELDS, and REGENTS OF 11 THE UNIVERSITY OF MICHIGAN, 12 Defendants. 13 and 14 KIMBERLY JAMES, et al., 15 Intervening Defendants. 16 ---------------------------------/ VOLUME 1 17 BENCH TRIAL 18 BEFORE THE HONORABLE BERNARD A. FRIEDMAN 19 United States District Judge 20 238 U.S. Courthouse & Federal Building 21 231 Lafayette Boulevard West 22 Detroit, Michigan 23 TUESDAY, JANUARY 16TH, 2001 24 25 2 1 2 APPEARANCES: 3 FOR PLAINTIFF: Kirk O. Kolbo, Esq. 4 R. Lawrence Purdy, Esq. 5 6 FOR DEFENDANTS: John Payton, Esq. 7 Craig Goldblatt, Esq. 8 On behalf of Defendants Bollinger, 9 et. al. 10 11 George B. Washington, Esq. 12 Miranda K. S. Massie, Esq. 13 On behalf of Intervening 14 Defendants. 15 16 COURT REPORTER: Joan L. Morgan, CSR 17 Official Court Reporter 18 19 20 21 22 23 24 25 3 1 2 3 I N D E X 4 WITNESS: PAGE: 5 6 MOTIONS IN LIMINE 4 7 OPENING STATEMENT ON BEHALF OF PLAINTIFF 8 Mr. Kolbo 33 9 OPENING STATEMENT ON BEHALF OF DEFENDANT 10 UNIVERSITY OF MICHIGAN AND INDEPENDENT DEFENDANTS 11 Mr. Payton 38 12 OPENING STATEMENT ON BEHALF 13 OF THE INTERVENORS 14 Ms. Massie 65 15 WITNESSES PRESENTED ON BEHALF OF PLAINTIFF 16 ALLAN STILLWAGON 17 Direct Examination by Mr. Kolbo 81 18 Cross-Examination by Mr payton 114 19 Cross-Examination by Mr. Washington 119 20 ERICA MUNZEL 21 Direct Examination by Mr. Kolbo 126 22 Cross-Examination by Mr. Goldblatt 201 23 Cross-Examination by Mr. Washington 251 24 Redirect Examination by Mr. Kolbo 261 25 Recross-Examination by Mr. Goldblatt 273 4 1 2 3 E X H I B I T S 4 MARKED RECEIVED 5 Exhibit Number 4 133 6 Exhibit Number 15 194 7 Exhibit Number 14 194 8 Exhibits Nos. 180-183 223 9 Exhibit Number 10 272 10 Exhibit Number 11 272 11 Exhibit Number 106 274 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 Detroit, Michigan 2 Tuesday, January 16th, 2001 3 (At or about 9:30 a.m.) 4 -- --- -- 5 THE CLERK: Calling case, Grutter versus Bollinger, 6 et al., case number 97-CV-75928. 7 THE COURT: Good morning. 8 You may be seated. 9 May we have appearances please, starting with the 10 plaintiff. 11 MR. KOLBO: Good morning, your Honor. Kirk Kolbo. 12 I'm here with my colleagues, Mr. Larry Purdy, Kai Richter. 13 And my client, Barbara Grutter, is here as well. 14 THE COURT: Great. It's nice to see you all. 15 MR. PAYTON: John Payton, for the University and the 16 individual defendants. Craig Goldblatt is with me and Phil 17 Kessler is with me. 18 THE COURT: Good morning. How is everybody? 19 MR. KOLBO: Fine. 20 MS. MASSIE: Miranda Massie for the Intervening 21 Defendants. 22 THE COURT: Does anyone else want to put in their 23 appearance? 24 MR. WASHINGTON: George Washington. 25 MS. MASSIE: Excuse me, Judge. With me is Shanta 6 1 Driver, George Washington, Jodi Masley, Winnie Kao. 2 THE COURT: Okay. Thank you. 3 MS. MASSIE: Thank you. 4 THE COURT: Well, I guess it's the day that 5 everybody including myself has been waiting for, and we've put 6 a lot of work into it, everybody. A couple of things that we 7 should start off. Number one is we'll do the motion in 8 limine. 9 I have one of the Intervenors -- the Plaintiff's 10 motion as it relates to the Intervenors' witnesses, I just 11 received it this morning so that one I'm not prepared, and I 12 suspect the Intervenors are not prepared to argue this morning 13 either since they, I suspect, received it also. All the rest, 14 I'm prepared to listen to very short argument, none of which 15 is included on the clock, of course, and go from 16 there. 17 Let me just talk about a couple of things that I'm 18 not sure we've talked about. One is the media. I'm not sure 19 who's here and who's not here, but the record should reflect 20 that I received a call from Jodi Cohen. I don't know if she's 21 here or not here, I don't know. I'm not sure from which 22 newspaper. And I told her I don't talk about cases at all, 23 that -- ever, that ever appear before me now or any other 24 time, but that because of the importance of this case if the 25 media needed something that -- 7 1 an exhibit that they thought was important in terms of 2 studying it so they can understand the case, we would be more 3 than happy to make a copy for them, or something of that nature 4 if there's no objection by the attorneys. It's going to be 5 reported in most -- journalists don't spend a lot of time in 6 court. And I also indicated to her at that time and that's 7 why I'm repeating it today for everybody, I'm sure the 8 attorneys would not mind if there's something that needs 9 clarification, clarifying with them because I have no 10 intentions of doing it, and I can't do it. I don't think it 11 would be fair to either side for me to be involved in that. 12 So, I've just disclosed it on the record because she 13 sent me a fax, and in response to her fax, called her on the 14 phone and essentially told her the same thing that I'm saying 15 now. 16 So whoever is here from the media, if there's 17 something you need copied, either David or Steven, my law 18 clerks, will provide it, or the court deputy will be more than 19 happy to accommodate you. 20 In terms of scheduling, everyone has received a 21 copy of the schedule. In terms of breaks, I usually break 22 around 11:00 o'clock because the truth of the matter is, 23 although I don't think today I have anything, generally I, 24 schedule some miscellaneous matters at 11:00 o'clock while 25 you're on break. That's when we'll be doing our 8 1 miscellaneous matters just to keep certain things going The 2 criminal docket mostly, pleas, sentencings, things of That 3 nature. So we'll be doing those essentially at 11:00 And 4 sometime, we'll be doing those sometime in the Afternoon, but 5 always on a break so we don't have to worry 6 about that. 7 If the lawyers need a break or something of 8 that nature, let me know. I don't drink coffee as often -- 9 I never drink coffee, I don't drink anything usually in the 10 mornings so I don't need a break as often as other people 11 but if you need a break since there's no jury, just let me 12 know. Or if you need a break to confer with a witness, or 13 to make some phone calls, to line up witnesses or to 14 conduct business at your office since you're all here and 15 most of you are here from other states. Even Mr. Kessler, 16 your new office, I've been reading about it in the 17 newspapers -- 18 MR. KESSLER: That is true. Thank you for noticing 19 that. 20 THE COURT: You've got good PR. Whoever is doing 21 it, any newspaper you pick, there's your new office. I'm 22 sure it's going to be beautiful though. 23 So if something comes up, let us know, and we'll go 24 from there. 25 So the first matter we have this morning is the 9 1 motions in limine. The first motion that we have is the 2 expert testimony of Dr. Bok. I think that one has been 3 resolved, if I'm not mistaken. 4 Counsel? 5 MR. PURDY: May it please the Court, counsel, 6 ladies, and gentlemen, your Honor, very briefly, we -- the 7 plaintiffs have filed a motion to limit or exclude the 8 testimony -- the proposed testimony of three experts, and I 9 do believe we have resolved one of them. I think the three 10 experts that were listed were Derek Bok, Kent Syverud, 11 Claude Steele. If I understand the response I got from the 12 defendants I think they're withdrawing Professor Bok unless 13 they feel that if something arises and they need -- during the 14 course of trial that they need to call him -- 15 THE COURT: Is that correct? 16 MR. KESSLER: It's close. What we have also said is 17 that the Court had some questions related to -- 18 THE COURT: I can deal with that -- 19 MR. KESSLER: -- if we were less selective that 20 might solve the problem in another way. And President Bok is, 21 of course, an internationally known expert on these matters. 22 And he will be prepared to come here and offer testimony on 23 that sort of subject -- 24 THE COURT: I don't need it. That's not really part 25 of this case. I asked the question, there's no. 10 1 question, -- 2 MR. KESSLER: That's fine. 3 THE COURT: I don't need it. It's nothing -- 4 good. I would like to hear him. I think -- I've read his 5 resume and I think just even seeing him -- he's a gentleman 6 that's accomplished so much. But as I say, if that was the 7 only reason you were calling him -- I had asked that question 8 at the time, it was more rhetorical, more curious than 9 anything else. 10 MR. PURDY: I appreciate that. I think we've 11 resolved that. 12 THE COURT: Right. Then the next one we have is 13 Kent Syverud. 14 MR. PURDY: Yes, sir. Kent Syverud, he's the Dean 15 at Vanderbilt Law School, your Honor. 16 Plain and simply, if you look at his 17 reports, there all about educational benefits of diversity. 18 And, of course, your Honor, as everyone had made clear no one 19 is contesting that there are educational benefits of 20 diversity. It's simply not an issue in the case. The Court is 21 going to decide whether an educational institution is 22 interested in diversity, they have to have governmental 23 interest as a matter of law. There's no facts that need to be 24 heard there. 25 THE COURT: That's what -- 11 1 MR. PURDY: It's his own impressions. If you look 2 at his report, that's all it is. 3 What they suggest in the response, what the 4 defendants suggest in their response is that they actually 5 want to bring Dean Syverud in to testify about what is 6 meant by "a diverse student body." And I guess, your 7 Honor, the problem we have with that is I don't think that 8 calls for expert testimony. The University clearly contends 9 that they have a diverse student body. They have the 10 figures about what their racial and ethnic mix are -- are 11 going to before the Court. They contend that they have a 12 critical mass. They contend they get the benefits. You don't 13 need an expert to come in and say, well, you know, here's my 14 impression of what's meant by diverse student body. They have 15 it. 16 And the question before the Court, as the Court has 17 laid out in its Order, is what is the extent to which the 18 University uses race which they obviously acknowledge that 19 they do, and whether or not the extent which they do 20 constitutes a double standard. I just don't see where Dean 21 Syverud has anything to add to that. 22 And I might note furthermore that they do have 23 Professor Raudenbush who is going to come in and talk about 24 various purported admissions policies which would create 25 different levels of diversity. And he has a report that he 12 1 will be testifying that basically as I understand, a 2 supplemental report that we received from Dean Syverud last 3 Thursday or Friday, is basically he's going to come in and say 4 I agree with Professor Raduenbush, you use one policy in order 5 to get the diversity that they have, and if you don't do that, 6 you get something else. I just don't think that adds 7 anything, your Honor. 8 Finally, Dr. Steele -- 9 THE COURT: Let's talk about them one at a time. 10 MR. PURDY: Sure. 11 THE COURT: Mr. Kessler, are you going to argue 12 it? 13 Can everybody hear in the courtroom? Speak up if 14 you can't. Is the microphone on? 15 Mr. Kessler? 16 MR. KESSLER: Your Honor, Dean Syverud has very 17 important and directly relevant testimony to offer here. 18 He is a nationally acclaimed expert in the education of law 19 students and legal education itself. He was a professor at 20 the University of Michigan Law School from -- 21 THE COURT: I'm well aware of him. I've read his 22 resume and -- again, what can he offer here? Tell me -- I 23 would like to see him. I've talked to him on the phone 24 Many, many times. I've used him as a mediator in cases. 25 I've never met him, but I've talked to him probably -- 13 1 many, many times. 2 MR. KESSLER: The plaintiff herself in papers 3 that were filed -- and I guess the Court just received and 4 I just received last night recognizes the nexus between the 5 questions -- the two questions in particular that the Court -- 6 the first two questions that the Court has set for trial, the 7 extent to which race is taken into account, and whether 8 there's a double standard, and the question of the policy and 9 critical mass. 10 Let me just read from the bottom of page 1 and 2 of 11 their Opposition papers on Mr. Stillwagon that they filed last 12 night. Two of the key questions which will be litigated at 13 trial -- 14 THE COURT: Are you reading from what, one more 15 time? 16 MR. KESSLER: This is the bottom of page 1 and the 17 top of page 2 of Plaintiff's Memorandum of Law in Opposition 18 to the Defendant's Motion in Limine. This concerns the 19 testimony of Mr. Stillwagon. 20 THE COURT: Page what? 21 MR. KESSLER: The bottom of page one -- 22 THE COURT: Okay. 23 MR. KESSLER: Starting with two of the key 24 questions, do you see that? 25 THE COURT: Yes. 14 1 MR. KESSLER: Two of the key questions which will be 2 litigated at trial are, one, the extent to which race is 3 factor in the law school's admissions decisions. And, two, 4 whether the law school's consideration of race in making 5 admissions decisions constitutes a double standard in which 6 minority and non-minority students are treated differently. 7 The Faculty Admissions Policy adopted in 1992 8 sheds some light on these issue. For example, the policy 9 makes explicitly clear that the law school is committed to 10 admitted to "meaningful numbers" or "a critical mass" of 11 African-Americans, Hispanics, Native Americans even if 12 Their graded performance in college and on the LSAT is 13 "relatively far" below that of other applicants, with a 14 transcript cite. 15 Dean Syverud will testify about the meaning of 16 "critical mass." He will testify to what he saw of 17 critical mass at the University of Michigan Law School over 18 a ten-year period. He will testify as to what he has come 19 to understand that to mean as the dean and an ongoing 20 member of the faculty at the Vanderbilt Law School. He 21 will testify as to what he has seen in the converse 22 situation where you have tokenism or no diversity at all. As 23 he has seen for ten years in summer classes that he has taught 24 -- 25 THE COURT: What's the relevance to the issues 15 1 before the Court? 2 MR. KESSLER: The extent to which the law school 3 considers race and takes it into account is driven by its 4 objective of bringing together a critical mass of qualified 5 minority students. 6 To understand and to have the Court have a deep 7 appreciation for what critical mass means in that context is 8 to understand the very parameters of the extent to which race 9 is taken into account. It is the literal parameters around 10 which the answer to the Court's question one arises. 11 And it's very important that you hear that testimony. I would 12 say that especially that in a case of this profound national 13 importance and social importance that can have affect for 14 generations beyond anyone even in this courtroom, to start to 15 artificially limit testimony that bears directly on central 16 questions would really be most inappropriate and completely at 17 odds with Rule 702. 18 And he is also going to testify -- I think Mr. 19 Purdy made reference to this -- he will testify as well 20 that when you look at Professor Raudenbush's meticulous 21 statistical analyzes and he shows us what will happen if we 22 maintain the kind of a policy that we have now in place and 23 have had since 1992, or we abandon it in favor a race neutral 24 policy. 25 Professor Raudenbush tells us the kind of numbers 16 1 of minority students who can be expected to be admitted to 2 the law school. And Dean Syverud will testify that those 3 kinds of very small numbers that Professor Raudenbush 4 projects don't work. They amount to tokenism. And rather than 5 being helpful in producing the kind of important educational 6 benefits that this law school is committed to producing, you 7 will have a counter-productive result. You need to hear that 8 with all due respect. And, frankly, the record needs to 9 reflect it. 10 THE COURT: Any rebuttal? 11 MR. PURDY: Sure. Your Honor, I mean, I accept 12 everything Mr. Kessler says about what the testimony will 13 be. It's interesting if you look at the first two reports 14 of Dean Syverud, one dated back in 1998, and one dated 15 again in the year 2000, the word "critical mass" never 16 appears one time. He never talks about critical mass one 17 time. 18 What they've done, is we've filed our motion. We 19 talked to the defendants last week, and we tried to get a 20 consultation. In fact, we were going to call and what 21 objections we may have had. And we told them after they said 22 they were going to call Kent Syverud, we alerted them, we 23 said, look, he's just a diversity expert. And if you 24 read his report, that's clearly all he talks about. He talks 25 about the educational benefits he sees from a level 17 1 of racial heterogeneity within the classroom and those sorts of 2 things. We understand that. 3 But the question is -- Judge, we have two 4 questions. What is the extent to which this defendant takes 5 race into account in its admissions system. He offers nothing 6 on that. And, secondly, whether it's a double standard. He 7 offers nothing on that. 8 His evidence may be interesting from a diversity 9 standpoint, and someone can clearly -- has strong views about 10 what a level of racial diversity may bring or what the lack of 11 it may not bring to a classroom. But that doesn't have 12 anything to do with what we're here today to talk about. And 13 that's the point, your Honor, we -- the critical mass is -- 14 that's the subject that they want to get into, define the 15 critical mass. 16 And I might point out, critical mass appears in the 17 Admissions Policy. It's a clearly relevant and important 18 Term that the Court is going to hear a lot about, what does 19 "critical mass" mean. And they've listed witness after 20 witness who were involved in developing the policy where 21 that phrase was used. If they want to talk about it -- I mean, 22 if we wanted to go out and have -- bring twenty experts in 23 from around the country and say here's my definition of 24 critical mass, I mean, how would that help the Court. I mean, 25 as the University has used the phrase 18 1 they've got witness after witness that can tell you what it 2 means. And they say they have it. 3 So, your Honor, I just think it's redundant. It 4 doesn't really help the Court at all. And it's brand new. 5 The phrase "critical mass" never appeared in one report until 6 last Thursday. 7 THE COURT: In this matter -- I can't -- we'll go 8 all day, if I let you go back and forth. 9 In this matter, the Court will deny the motion. I 10 will allow the defense to call Dean Syverud, however, with 11 the understanding that I'm not making a ruling as to 12 relevance of his testimony. I've had a chance to read all of 13 his reports, and it appears that all his reports talk about the 14 diversity issue. It talks about when he first became a 15 professor and how he changed his mind, and all that. I don't 16 think that's relevant. And I'll tell you right now and 17 probably -- if there was an objection, would probably exclude 18 it only because that's not the issue before the Court today. 19 However, if the defense believes that there's some relevance 20 in his testimony, critical mass or otherwise, then I think I 21 should not exclude that. Therefore, the Court will allow him 22 to -- 23 MR. KESSLER: Thank you, your Honor. 24 MR. PURDY: Your Honor, that leaves us with Dr. 25 Steele. Dr. Steele is a professor out at Standford. And 19 1 he has developed an interesting theory that relates to what he 2 believes is a reason why there may be some disparities between 3 standardized test scores for certain minorities and others, 4 therefore -- I guess what it amounts to is some reason why if 5 a school wants to make an excuse to employ a double standard, 6 if you will. My understanding is it's the University is they 7 don't have a double standard. And Dr. Steele is going to be 8 talking -- it's just a theory called a "stereotype threat." 9 He believes it may effect -- or artificially depress test 10 scores of certain minorities. 11 I did go through his deposition, and we attached 12 transcripts to our motion, your Honor. He has no knowledge. 13 He will not connect up a single one of Michigan's applicants 14 with the concept of "stereotype threat." He's never done any 15 analysis of whether any of the people who applied may have 16 been effected by stereotype threat or whether any of the 17 students -- any minority students or majority students for 18 that matter, but he stated that stereotype threat can effect 19 everybody. 20 So I don't know what it has, your Honor. It clearly 21 has nothing to do with the two issues that this Court has laid 22 down for trial which is simply the -- 23 THE COURT: How about academic ability, one of the 24 things the defense have indicated in their response is 25 academic ability. Relevant or not relevant? 20 1 MR. PURDY: Academic ability is relevant. I think 2 everyone's academic ability is relevant, your Honor. 3 And the University is certainly free to evaluate different 4 people, different applicants' academic abilities differently 5 depending upon what the entire file looks like. 6 I assume that's true for every applicant, every candidate 7 regardless of race. 8 Dr. Steele focuses specifically on one aspect which 9 is the standardized testing. And he suggests that -- as he 10 says -- in fact, they say in their response, that stereotype 11 threat and other external pressures artificially depress 12 minority student performance on standardized tests. 13 Now, what that suggests to me, your Honor, if the 14 University wants to take the position now that that is an 15 excuse that the University may use by employing a different 16 standard for certain minorities but looking at their test 17 scores, that would be an entirely different case. It's my 18 understanding the University is not prepared to make that 19 concession, that they, in fact, do use a double standard, and 20 do it because of Dr. Steele's theory. 21 I might also point out Dr. Steele's theory is the 22 best that we can tell from the record was never even 23 considered by the University when they adopted their 24 admissions policy. So it play no role. I mean, it's an 25 interesting theory, and Dr. Steele like a number of the 21 1 witnesses in this case, your Honor, is somebody that we would 2 be fascinated to hear from. But I don't think it has anything 3 to do with the limited issue before the Court. So we would 4 ask that it not be allowed. 5 THE COURT: Mr. Kessler. 6 MR. KESSLER: Your Honor, they have put this ball in 7 play with the double standard argument. They're double 8 standard argument boils down to this: You, law school, have 9 admitted minorities whose average grades, average grades and 10 average LSAT scores are somewhat lower than the average grades 11 and test scores for white students. That is a double 12 standard. 13 Professor Steele is one of several witnesses who will 14 offer a complete negation of that position and show how 15 wrong-headed it is. 16 THE COURT: Except how does it relate to this 17 factual situation and this particular case as oppose to just 18 generally what his opinion may be? 19 MR. KESSLER: One thing he's going to do is 20 testify as to the significance and the significant 21 limitations on LSAT scores. What they mean; what they 22 don't mean; what they help to do; what they don't help to 23 do. This argument of double standard is based on a very 24 slight difference in average LSAT scores. That is one 25 of the two bases of their argument. You'll hear in the 22 1 opening and all the way through the trial that in every 2 procedural respect all of these applications are treated in 3 exactly the same way. The double standard -- 4 THE COURT: Did Dr. Steele study the University of 5 Michigan Law School's situation? Did he -- or is it just 6 general? 7 MR. KESSLER: He did not study the University of 8 Michigan Law School situation. His opinion is that he is 9 an expert on the effect, significance and limitations on the 10 significance of standardized test scores including the LSAT 11 score. It's the LSAT score in general, not the LSAT 12 score at the University of Michigan that is one of the two 13 prongs of the plaintiff's dual standard argument. They say 14 that the LSAT scores on average are somewhat lower for 15 minority students than they are for majority students. 16 Obviously we're entitled to put that in prospective and 17 show that sort difference doesn't mean anything, and doesn't 18 constitute a double standard. And that's quite 19 apart from Dr. Steele's research and experimentation on the 20 stereotype threat which is a long way from just a theory. 21 It's based on years and years of research. And it shows that 22 groups who are subject to stereotypes including but not 23 limited to some of the minorities at issue here will perform 24 in a less successful way on standardized tests particularly 25 if they're driven. About the importance of the 23 1 test. 2 So the more important the test is to them, the more 3 likely it is ironically that they won't do as well on it. 4 That is directly on the point on the dual standard. And we 5 certainly are entitled to make a record of that. 6 And frankly, I think the Court would benefit from 7 hearing it. 8 THE COURT: Rebuttal? 9 MR. PURDY: Your Honor, again, I'm not going to 10 disagree with anything that Mr. Kessler says. Dr. Steele 11 Has developed a theory and frankly it's not after years and 12 years of research. It's something that came up if I'm not 13 mistaken I think the record will reflect it was originally 14 published in 1995, some three years after the admissions 15 policy at issue were developed in this particular case. 16 And I think Mr. Kessler is walking that line that I'm quite 17 intrigued by which is, look, there's a reason why we can do 18 what we do, why we can actually either deemphasize the test 19 for certain people depending upon their race or ethnicity, or 20 why we can use a double standard. I mean, we're excused for 21 doing that because Dr. Steele says these particular scores 22 should be depressed. I guess I just don't -- first, he makes 23 clear he's never -- he doesn't even opine whether a single 24 one of the applicants -- I asked him the question, it's in the 25 record, whether a single one of the applicants 24 1 of the University of Michigan, minority or otherwise, were 2 effected by stereotype threat. There's no analysis that he 3 has. He has no knowledge of the admissions policies. 4 And, your Honor, it's like everything else, I mean we 5 can talk about the about the various reasons for why there may 6 be differences in certain groups of test scores. I don't know 7 what that has to do with the two issues that this Court has 8 set down for trial. 9 THE COURT: Okay. In this matter, again, the Court 10 is not -- you didn't file a response that's why I have not 11 allowed you to speak. 12 MS. MASSIE: I understand that, Judge Friedman. 13 It's just that this -- we're going to be covering the 14 motion that plaintiff has filed on us tomorrow. This 15 exchange goes to the heart of the Intervention phase as 16 well. 17 THE COURT: It may. But, you know, we've got to 18 follow the rules. If you had filed a response or something 19 I would have been more than delighted to have let you argue 20 anything. But each side -- anyhow, in this matter the Court 21 will allow Professor Steele to testify, again, however 22 with the understanding that I'm not ruling by any means that 23 it's relevant and because part of the reason that I set 24 some time limits on it was to give each side as much 25 flexibility as I could and to utilize their 25 1 time in the manner in which they best felt would present their 2 case and perhaps even make a record although I'm not as 3 concerned about making a record, I'm more concerned about 4 dealing with the issues that are before the Court that I have 5 enumerated for the record if that's what your desire to do is 6 fine also. 7 I will allow Professor Steele. 8 MR. PURDY: Thank you. 9 MR. KESSLER: Thank you. 10 THE COURT: We have one other motion and that -- we 11 have other motions. One is the Intervenors which I've 12 indicated we will handle in a bit. And the other one is the 13 defendant's motion as to the plaintiff, Ms. Grutter, 14 testifying. It's my understanding that the plaintiff's have 15 decided at this point not to call Ms. Grutter. Is that 16 everybody's understanding? 17 MR. PURDY: That's correct, your Honor. 18 THE COURT: Okay. Just so the record is clear. 19 And the next one we have is the issue as to Alan 20 Stillwagon. 21 MR. PAYTON: Your Honor, we filed these motions 22 because we thought that neither Mr. Stillwagon nor Ms. 23 Grutter had any relevant testimony, any relevant testimony 24 with the first two questions the Court set for trial the 25 extent to which race is used and whether or not there's a 26 1 double standard. 2 THE COURT: Just, again, at least I forget, and I 3 don't want to forget, is that the plaintiff's motion in 4 relation to the Intervenors' witnesses -- again, I hope 5 everyone will address it at the appropriate time, is very 6 similar to the issues raised as to Plaintiff Grutter. I 7 think. I'm just thinking out loud. I haven't had a chance to 8 really study it, but I read it very, very quickly morning 9 because it just came in this morning. 10 Go on, I'm sorry. 11 MR. PAYTON: I actually haven't read that motion 12 carefully either, but I think they are, in fact, different. 13 THE COURT: They may be. I just don't -- the only 14 reason I said it right now is because I was thinking of it, 15 and I wanted to at least make sure that everybody at least -- 16 we're all in a position to at least address it. 17 MR. PAYTON: Sure. 18 THE COURT: It's not here today. Okay, as to 19 Stillwagon. 20 MR. PAYTON: Mr. Stillwagon. This case is about the 21 current admissions policies and practices of the law school. 22 I don't think there's any question about that. This phase of 23 the case is about only injunctive and declaratory relief. 24 It's what we do right now. 25 Mr. Stillwagon was the Director Admissions from 27 1 1997, to 1990, August of 1990. That's eleven to twenty- years 2 ago. He has had nothing to do with the law school since then, 3 since August of 1990. He's not had any contact with any 4 person in the Admissions Office since that time. 5 In April of 1992, the faculty, the whole faculty, 6 adopted a new admissions policy, a new comprehensive written 7 policy which you've seen and which is going to be obviously a 8 major document in this trial. It was written a faculty 9 admissions committee that worked on it for eight months. 10 Worked very hard to produce the document. 11 A new director of admissions served on that 12 committee, contributed to the discussions and the policy, and 13 was charged with implementing that policy. The parties have 14 stipulated in the Joint Pretrial, they have stipulated that 15 the director of admissions is charged, charged with 16 implementing that 1992 policy. The parties have stipulated 17 that the 1992 policy has remained in effect, unchanged since 18 it was adopted in 1992. I don't think there's any dispute 19 about how it's been operated. 20 Plaintiff concedes in her opposition that Mr. 21 Stillwagon has no knowledge of the system as it has 22 operated since 1992. She argues instead, but plaintiff is not 23 Stillwagon on that subject. That's the only subject of this 24 trial. Our admissions policies; how they'll operated 25 what we do. That's the only subject of the trial. 28 1 Given that we have a comprehensive written 2 admissions policy about which there is no real issue about 3 how it's being operated, that's what the whole trial is 4 about. 5 Now, she makes as her final argument that her case is 6 brief, Mr. Stillwagon's testimony won't be very long, but he's 7 here. All that's true. But his testimony isn't relevant to 8 anything that we're going to be talking about. We have the 9 policy which was adopted two years after he left. It's being 10 implemented by new admissions officers. It's been in effect, 11 unchanged. Admissions counselors and officers are charged 12 with implementing that 1992 policy. That's all this trial 13 ought to be about. 14 THE COURT: Thank you. 15 MR. KOLBO: Your Honor, Kirk Kolbo, for the 16 plaintiff. 17 I can be fairly brief. There's a very simple and 18 basic reason why Mr. Stillwagon's testimony is relevant. The 19 most basic level is to provide the Court some background in 20 this case. 21 The 1992 policy was a new written policy, but in the 22 policy itself, it went on to say, and I'm quoting from the 23 1992 policy. 24 "Our object in this memorandum is as much to 25 Ratify what has been done, to reaffirm our goals 29 1 as it is to announce new policies." 2 I think this Court is entitled to hear what about 3 the old policy that's still in the new policy. How did the 4 old policy operated in such a way that one can understand in 5 what respects the new policy is very similar to it. 6 There's another reason, your Honor, where I think 7 there's some relevance to hearing this. There's a document, I 8 think it's Trial Exhibit 61, that states the 1992 policy was 9 basically to address a new articulation as to what had 10 happened before. If it's just a new articulation, your Honor, 11 that's very useful, it seems to me to have the Court 12 understand how the old policy which in may respects was 13 similar was articulating. One of the things the Court will 14 discover through documents and as well through Mr. Stillwagon 15 is the law school operated with what is called a Special 16 Admissions Program. 17 We think one of the things the evidence will show 18 in this case is that the law school still operates in 19 effect and in substance a special admissions program with 20 respect minority students. It would be helpful to the 21 Court, and that's what we're talking about there, at the most 22 basic level, there's some helpfulness to understanding what 23 the old system was like so it can be compared to the new 24 system in particular with respect to the fact that many 25 areas the new system, as I say, ratifies policies of the 30 1 old system. 2 It's going to be short testimony, your Honor. I 3 think it will provide the Court some useful background. We 4 took a number of depositions in this case in which we 5 learned that virtually all of the current law schools 6 officials pled pretty much ignorance about how the system 7 worked prior to 1992 during Mr. Stillwagon's tenure. They 8 simply plead sort of amnesia on that. So we think it's 9 helpful for the Court to understand what Mr. Stillwagon was 10 doing, how he was operating under the mandate of the policies 11 that were in effect at that time, and to compare them to the 12 evolution of the policy that occurred in 1992. We think it's 13 very relevant in that point, your Honor. 14 THE COURT: Thank you. 15 MR. PAYTON: I find this almost amazing. Mr. 16 Kolbo admits up here that, in fact, none of the current 17 people had any responsibility for operating the admissions 18 program since 1992, and he's deposed them all. He doesn't 19 seem to know anything about how it was operated in the 20 1980s. That seems to me conclusive that what was happening in 21 the 1980s is not relevant to how they were operating the 22 system. 23 Now, we can do a historical sort, you know, sort 24 of retrospective on of what's been going in the 1980s, and how 25 things happened in the 1980s, but if the people who 31 1 operated the policy since 1992 don't have any contact with that 2 or even know what happened, what does it matter at all, at 3 all. 4 THE COURT: Again, without ruling on its 5 relevance, the Court will allow Allan Stillwagon to 6 testify. Again, relevance is not one of the reasons that 7 I'm making that ruling. I think that, again, it's important 8 for each side to put on their case the way they feel it 9 should be put on without wasting time of either side and the 10 Court. Therefore, the Court will allow that. As I 11 indicated before, the plaintiff's motion in limine as. 12 To the Intervenors' witnesses I will -- we'll talk about it 13 You know, at the end of the day, see how much time each 14 side needs in order to respond according since I don't 15 think it's going to come up for awhile, and we can go from 16 there. 17 Any other preliminary matters before we proceed? 18 Okay -- yes, Mr. Payton? 19 MR. PAYTON: This is just housekeeping. What do you 20 plan on the way of lunch? Is there a regular time? 21 THE COURT: Good question. I usually like to 22 break for lunch -- what I'd like to do to be honest with 23 everybody, if we have a witness, and -- I don't like to 24 break inbetween, you know -- I like to break at a good 25 point so we can do it. Usually I take a lunch between 32 1 12:30, 1:00, 1:15, in that area. But if we're in the 2 middle of a witness, and we can get that witness out by 3 working another fifteen, twenty minutes, you know, not have 4 to bring that witness back -- 5 MR. PAYTON: An hour? 6 THE COURT: An hour is fine. Is that okay 7 with -- 8 MR. KOLBO: That's fine, your Honor. 9 MS. MASSIE: Fine with us. 10 THE COURT: Okay. If turns out you need a little 11 bit more time because unfortunately Downtown Detroit doesn't 12 have a whole lot of eating spots, let us know, but let's plan 13 on an hour for lunch. 14 Okay, we're going to go on the clock. As I indicated 15 one other time, I'm certainly welcome to hear some Opening 16 Statements. I know a lot about the case. I've read a lot of 17 the information in terms of the Motion for Summary Judgment 18 and so forth. So you may proceed. 19 Just so you know about the time -- and as I 20 indicated, there's going to be a sheet up here every day. 21 David and Stephen will be keeping time. We've got three 22 time watches. The time will be any time that's used -- 23 other than objections unless the objection -- if it's too 24 hard to stop and go on with the objection, with the 25 understanding that I wanted to do it just to keep things in 33 1 perspective. I mean, if someone needs an extra hour or 2 two, or something, I'm not going to tell you, you can't do 3 it. But it's just so we have some way of keeping it together. 4 But on the same token if someone needs another twenty hours, 5 you're probably not going to get it, but I'm not going 6 to say, you know, for a couple of hours that you can't -- if 7 you have some things that you have to -- that are 8 important to you, that you have to put in, I certainly 9 understand. 10 The record should reflect that we talked about -- the 11 time I gave you was really based upon the estimates you gave 12 me in terms of how long you thought the case should take and 13 so forth. 14 With that said -- oh, the other thing, there's 15 going to be some sheets up here. We're just going to do a 16 cumulative total every day. You are more than welcome 17 to take a look at the sheets. We're just going to keep them 18 right here. There's no secret. My law clerks are going to 19 keep the time. We have a backup timing, Jeremy Segal, he's 20 an undergrad student at the University of Michigan. They have 21 a program up there where we take an undergrad student every 22 year through one of the professors. So he spends a 23 semester with us. And he's going to be kind of a backup 24 timing. And we also have student from Wayne University who's 25 an undergrad student that wanted to -- just kind of 34 1 back us up in case we forget to turn the clock. The student 2 from Wayne isn't here today, but he'll be here tomorrow. He 3 will be probably every other day with Jeremy or something of 4 that nature. Just so everybody who he is. 5 Okay. You may proceed. 6 OPENING STATEMENT 7 MR. KOLBO: Thank you, your Honor. 8 Again, Kirk Kolbo, on behalf of the plaintiff. 9 I know, your Honor, that you are very familiar 10 with the facts of this case, and I'm going to be very 11 brief. 12 We have a simple case. I simply want to give the 13 Court sort of an idea of what we're going to be doing and what 14 our time frame is. We expect to put our case in, in one or 15 two days, perhaps three days at the most. And I just want to 16 tell the Court a little bit about what that's going to look 17 like. 18 In a technical sense, your Honor, I think our 19 burden actually has already been met in this case in so far 20 as the Court is not going to be trying the question of 21 whether or not race was used as a factor in the admissions 22 process. I think technically probably once that point had 23 been conceded, the burden shifted to the defendants to 24 establish a compelling governmental interest which, of course, 25 the Court has taken under advisement as a matter of 35 1 law in terms of whether diversity is that interest. And, 2 secondly, their burden is to demonstrate that if they have 3 established a compelling governmental interest that the means 4 that they use, the manner, the extent to which they take race 5 into account in the admissions process is a narrowly tailored 6 one. And I understand that basically is the fact, that legal 7 question, is what's going to be tried here in the next several 8 weeks. 9 Although we're not technically perhaps required to 10 put on evidence at this point in view of that burden and the 11 burden shifting, we do think it's appropriate as the 12 plaintiffs in this case to let the Court hear and to have the 13 plaintiffs go forward with some of the evidence on the manner 14 and the extent to which race is used in the process. 15 We're going to do it basically, your Honor, 16 through three witnesses, and then a variety of documentary 17 evidence as well as some deposition designations in the 18 case, your Honor. We're going to start out as the Court 19 has already heard the motions in limine with some background 20 testimony. And I except that background testimony to be 21 provided by Mr. Allan Stillwagon who was involved in the 22 Admissions Office, was the principal Admissions Officer, 23 responsible for carrying out the admissions policy of the 24 Law school from about 1979, until about -- I think the 25 last year, the last academic year for 36 1 2 Which he made admissions decisions was 1990. 3 I expect that Mr. Stillwagon will provide testimony 4 In some detail but in particular with respect to how 5 the law school operated what it called very candidly at the 6 time and accurately a special admissions program that operated 7 for minority students, for certain designated minority groups. 8 And that program I believe he will explain again in much 9 detail than I'm going to elaborate on here, provided that 10 through a series of faculty resolutions and mandates 11 throughout the 1970s, I think principally the faculty mandated 12 that the admissions office was responsible for making 13 admission decisions in a manner that would lead probably to 14 the enrollment of approximately ten to twelve percent 15 unrepresented minority students from the designated minority 16 groups. And that the special admissions program was to be 17 used if that enrollment level couldn't be reached through the 18 regular admissions process. And effectively, I think what 19 Mr. Stillwagon's testimony will demonstrate and we think a 20 number of the documents that we will be offering as well will 21 demonstrate that the special admissions program was, in 22 effect, basically a manner of considering academic credentials 23 of minority students, of these designated minority students 24 under a very different and lower standard that was generally 25 applicable in the regular admissions process. That will be 37 1 kind of a background, your Honor, for what I believe is pretty 2 much undisputed about the way the admissions process worked at 3 least up until the time that Mr. Stillwagon departed again, 4 that last academic year was for 1990. 5 Then, your Honor, our second witness is 6 going to be the current director of the admissions office 7 for the law school. Her name is Ms. Erica Munzel. I believe 8 her testimony will be -- and I'm not going to go into any 9 detail here, your Honor, because we'll get this in the 10 course of the trial -- but Ms. Munzel I believe has been 11 in the admissions office since approximately January or so of 12 1993. She was associate director, basically number two in 13 charge next to Dennis Shields until approximately I believe 14 it was early of 1998 sometime. And since 1998, she has been 15 either the acting director of admissions or the director of 16 admissions for the law school. So that she is the one. 17 That is knowledgeable about how admissions have worked in the 18 law school for the last couple of years before that, at least 19 back in 1993. And she is the individual that is knowledgeable 20 about how the admissions policies work to date in light of the 21 new policy. So we're going to have some testimony from her on 22 that subject. 23 24 Finally, your Honor, our last witness will be our 25 expert witness in this case, Dr. Kinley Larntz. He is 38 1 professor emeritus at the University of Minnesota where he 2 has taught, I believe approximately thirty years. He is 3 the former chairman of the University of Minnesota's 4 Department of Applied Statistics. And I'm not go into any 5 detail here, your Honor, with respect to Dr. Larntz' expected 6 testimony. 7 There were, as the Court is familiar, we filed about 8 five -- four or five of his reports as part of the Summary 9 Judgment record. Much of his testimony, in fact, really all 10 of his testimony, the substance of it, will be based on large 11 part upon those expert reports. We put together a 12 presentation for the Court, sort of a summary presentation 13 because the report themselves are very extensive and it would 14 take days to have a witness take us through it. So we put 15 together an abbreviated sort of summary presentation that Mr. 16 Larntz, Dr. Larntz will present to the Court as part of his 17 testimony. 18 And basically what Dr. Larntz did, your Honor, as a 19 statistician, he worked with -- he was given access to the law 20 school's database. They maintain a data base each year that 21 contains a variety of information and characteristics on 22 applicants, residencies, grades, test scores, gender, a 23 variety of things. And he was able to do a variety of 24 comparative physical analyzes with that database basically for 25 a six-year period, your Honor. From 1995, which is the first 39 1 year to which this class has been certified right up until the 2 most current class, the first-year class that was enrolled in 3 the year 2000. 4 And what we expect that Dr. Larntz' testimony will 5 show is that race is not just used as a -- I guess a plus 6 factor that might sometimes tip the scale in close cases, but, 7 in fact, it was more in the nature of a super factor that has 8 enormous consequences, particularly at middle ranges or a 9 combination of LSAT scores and undergraduate grade point 10 averages. 11 use a lot of sort of comp English when I talk about 12 size, your Honor, of the preference we believe is pretty 13 clearly given at the law school for race. But what we asked 14 Dr. Larntz to do is try to put that in a little more 15 scientific and quantitative form, and that's what we expect 16 his testimony will do. 17 And, finally, your Honor, we also intend to put 18 our case in through a number of exhibits, deposition 19 designations and so forth. At the end, we expect your 20 Honor, to be able to demonstrate not simply by the 21 preponderance of the evidence that race is used in an 22 improper manner here, but we think we can establish that 23 decisively through the evidence and the witnesses that you 24 will hear in the next two weeks. 25 THE COURT: Thank you. 40 1 MR. KOLBO: Thank you, your Honor. 2 THE COURT: I appreciate it. 3 OPENING STATEMENT 4 MR. PAYTON: Good morning, your Honor. 5 Mr. Kolbo is correct that it is probably realistic to 6 look at this case as having the burden that primarily falls on 7 us since we have an affirmative defense. And I think I'm 8 going to try to be brief, but I'll be a little bit longer than 9 Mr. Kolbo, but not that long. 10 This case -- we're going to use a few of the 11 exhibits just in the course of this matter here. This 12 case, unlike some others, about the use of race as a 13 factor, along with many other factors in the admissions 14 process. Is greatly helped by the fact that we have a 15 comprehensive written admissions policy that governs all 16 admissions. 17 The three witnesses that Mr. Kolbo indicated he's 18 going to call, Mr. Stillwagon, as you will see as I think 19 everyone has conceded, the plaintiffs as well, doesn't know 20 anything about that policy. It was developed after he 21 left. 22 Mr. Larntz, the plaintiff's statistical expert also 23 does not know that policy. He has constructed a model that 24 generates the number that Mr. Kolbo was referring to 25 and his model does not reflect our process. And I don't 41 1 even think he claims it reflects how we make our admissions 2 decisions. 3 Now, Ms. Munzel, another of his witnesses, is our 4 current Director of Admissions, and she certainly knows how 5 the policy works. And she will testify that race is merely 6 one of many factors that are taken into account on a 7 file-by-file basis to achieve one aspect of our comprehensive 8 admissions policy that values diversity. She will make it 9 point blank that there is no dual system. 10 Mr. Kolbo left the impression that the odds of a 11 minority student getting, versus a majority student getting 12 into the University of Michigan were much higher. He said 13 that race is -- and I use every day language a super factor of 14 enormous consequences. 15 Let me give the Court the numbers that I believe 16 matter. And that will be presented to the Court as 17 undisputed, that is, the data is the data. 18 For 1997, that's the year that Ms. Grutter 19 applied, three hundred African-American students applied to 20 The University of Michigan Law School, three hundred. Of 21 those three hundred, two thirds were rejected. And only 22 one hundred three were offered admissions. That's 34.3 23 Percent were offered admission. Twenty-seven came. 24 Twenty-seven out of a class of three hundred and sixty-two, 25 7.5 percent. Same year, 1997, one thousand nine hundred 42 1 eighty-two white students applied to the University of 2 Michigan Law School. Of those one thousand nine hundred and 3 eighty-two, seven hundred and eighty-three were offered 4 admission, 39.4 percent. A higher percentage of offers than 5 for the African Americans. 6 Put it the other way, the law school rejected a 7 larger percentage of the African American applications, than 8 the percentage of the White applications. Two hundred and 9 thirty-three of the white offerees came. Out of the class, 10 same class, three hundred and sixty-two, that's 64.4 percent. 11 About nine times the number of white students came than 12 African Americans. 13 I would say that by any measure, any measure at 14 all, the numbers of minority students that we have the 15 University of Michigan Law School, have been modest, 16 twenty-seven African Americans in Ms. Grutter's year of 17 1997. 18 Professor Steven Raudenbush, our expert on 19 statistical analysis, has reviewed all of this data. And 20 his analysis shows that even if there was no minority 21 students at all, that is, if we simply eliminated the 22 under-represented minority students from the applicant 23 pool, just took them out, that the resulting increase in the 24 rate of admittance for the black students would be marginal. 25 It would be an increase of six percent. It would go from 43 1 thirty-eight to forty-four percent in 1997, Ms. Grutter's 2 year. That's if all the minority students were simply 3 excluded. 4 And what's driving this is the fact that there aren't but so 5 many under-represented minority applications or students in 6 the first place. And, therefore, their presence or not can 7 only have a marginal impact on the overwhelming remaining 8 applicants and students. 9 People show that Mr. Larntz' analysis of this entire 10 issue is, in fact, fundamentally flawed. 11 This trial is limited to the three issues that the 12 Court has set forth. But it's really important that 13 these issues be viewed and appreciated in the larger 14 context in which they arise. To fully understand -- to 15 take the Court's first question, the extent to which race 16 is a factor in the admissions process, it's crucial to 17 know why we use race at all. In fact, the plaintiff's one 18 witness, Gail Heriot, will say that. We'll introduce 19 portions of her deposition testimony in which she stated 20 that an admissions policy like the Harvard policy that's 21 attached to the Bakke opinion, or like the policy right 22 here before the Court, the extent to which race is considered 23 in the admissions process is in large part a function of 24 what you mean by a critical mass. That's why Mr. Syverud's 25 testimony is going to be important. That's 44 1 why a lot of witnesses are going to talk about what critical 2 mass is. 3 The educational benefits only come about if there is 4 critical mass. And we take race into account only to that 5 extent. 6 Now, there's no mystery or subterfuge here. We set 7 forth a comprehensive written admissions policy in 1992, in a 8 document drafted by a faculty committee that was established 9 by the dean and adopted by the full faculty of the law school 10 as the policy of the law school. 11 As I said in talking about Mr. Stillwagon, the 12 stipulated facts are that the director admissions is charged 13 with implementing that policy. The policy I think is Exhibit 14 4. You've seen it? 15 THE COURT: I've seen it. Is it Trial Exhibit 4. 16 MR. PAYTON: I believe we tried to keep the same 17 numbers. 18 THE COURT: I've seen it many, many times. 19 MR. PAYTON: This is it. And we're going to hear 20 from a number of witnesses about this policy. We're going 21 to hear from Lee Bollinger, the dean, that in the fall of 22 1991, appointed the Faculty Admissions Committee and 23 charged them with looking into all of this. And the 24 Committee drafted the policy. And Dean Bollinger presided 25 over its adoption by the full faculty in April of 1992. And 45 1 Mr. Bollinger is currently president of the University of 2 Michigan. 3 We'll hear from Jeff Lehman who was a faculty member 4 of the Faculty Admissions Committee that drafted the policy in 5 1991-1992, and he's the current dean of the law school. We'll 6 hear from Dennis Shields, who is one of the individual 7 defendants in this case who was then newly recruited to be the 8 Director of Admissions in the summer of 1991, and whose 9 initial emergent into Michigan law school was serviced on this 10 committee with the faculty charged with coming up with a new 11 policy. He contributed to the policy; functioned with the 12 committee; met the faculty; and helped design the program that 13 he was then charged with implementing. We'll hear from 14 Richard Lempert who was the professor who chaired that 15 committee in 1991. 16 The policy is a comprehensive policy about all 17 admissions. It makes it clear that the law school desires a 18 class of excellent students that have varying backgrounds and 19 experiences; recognizes that students learn a great deal from 20 each other. 21 So the question is: How do you select the students 22 to achieve those things? The policy states that the most 23 general measure predicting academic success is a composite -- 24 and this is on page 3 of the policy -- is a composite - I'm 25 giving just a short little quote here, 46 1 "An applicant's LSAT score and undergraduate 2 gradepoint average." 3 It notes that these measures are far from perfect, 4 certainly not complete. And, in fact, it notes at the bottom 5 of page 3, that. 6 "At Michigan the index for three of the four most. 7 recently admitted classes, the grades and test 8 scores explain on average 27% of the variance in 9 the first-year graded performance." 10 That means that nearly three-fourths of the 11 difference in those grades, cannot be explained by the 12 grades or the test scores. But, you know, the general 13 matter, higher is better. But the policy makes it quite clear 14 and explicit that -- and this is on the next page, page 4, 15 quote, 16 "Even the highest possible score ought not 17 guarantee admission." 18 And it goes on, the next page, quote, 19 "A low score ought not automatically deny a 20 candidate admission." 21 We don't admit LSAT scores. And we don't admit 22 GPA's. We admit whole students, whole persons. And there is 23 a whole lot of other information and practices that are 24 important in making a decision and judgment upon any 25 applicant: Recommendation, essays, curriculum, undergraduate 47 1 institutions, trend in grades, experience, et cetera. As the 2 policy says, considerable discretion is exercised in the 3 admissions process, and it ought to be. 4 Here's the point: Once the director of admissions 5 concludes that an applicant would succeed academically at 6 the law school and is, therefore, qualified, every such 7 applicant has a chance of being admitted. At that point 8 it is up to the applicant to make the case that this 9 discretion that the policy sanctioned should be exercised in 10 his or her favor. 11 This evaluation is the essential point of the 12 file-by-file review that the Admissions Office follows 13 regularly and without exception. 14 Now, everything I've just said about the admissions 15 process and the admission policy applies to all applicants, 16 minority, non-minority, everybody. I have described the 17 general policy. 18 The policy often notes that there are two 19 principal reasons why applicants may qualify for 20 admission despite having scored not at the very top of the 21 range. First, there are applicants as the policy said for 22 whom we have good reason to be skeptical of their scores. 23 The policy gives an example, Student X -- the policy refers. 24 To the student as Student X. That's a student that had good 25 grades but not nearly as good LSAT. And on closer review 48 1 of the record, it turned out that that same student had 2 very, very good grades in college, but the same not so good 3 LSAT scores, had out performed the test. And that's one of 4 the reasons you allow exceptions. You can take that into 5 account. 6 This first category, again, applies to all 7 students. And I will note that the example of Student X 8 is. In fact, a real student who was just summed up in there 9 and made anonymous, a real student, and it was a white 10 student. But it could have been any student who benefited 11 from that. 12 The second reason why an applicant may qualify for 13 admission if the score is not at the very top of the range is 14 that the policy says that -- it's nine of ten of the policy 15 is, 16 "This may help achieve that diversity that has 17 The potential to enrich everyone's education and 18 Thus make a law school class stronger than the sum 19 of its parts. In particular we seek to admit 20 students with distinctive perspectives and 21 experiences." 22 Now, the policy makes clear and the witnesses will 23 explain that this is diversity in the broadest sense of the 24 word, students with distinctive experiences and perspectives 25 as well as students that make special contributions to our 49 1 profession and our society. 2 Again, the policy gives examples. A student 3 originally from Bangladesh who had absolutely outstanding 4 recommendations, and very impressive experiences, but only 5 moderate achievement. A single mother who had very impressive 6 personal experiences, but who had very good academic 7 achievement but modest scores. 8 The policy also lists other possible achievements 9 that could be noted, taken into account by future admissions 10 committees, future directors of admissions. Ph.D. in physics. 11 It mentioned an Olympic Gold Medal, a Vietnamese boat person. 12 It wasn't suppose to be a rigid fixed category. Simply life 13 experiences, perspectives that could bring some real 14 contribution to the diversity and the livelihood and vitality 15 of the law school class. 16 That's the question that gets asked all the time, 17 will they make the law school a more lively and vibrant place 18 in which to study law for all applicants including the -- the 19 policy makes it absolutely clear that they must demonstrate 20 sufficient academic strength to be able to thrive at the law 21 school. 22 And then on page 12, the policy references the law 23 school, " 24 "Commitment to racial and ethnic diversity 25 With special reference to the inclusion of students 50 1 from groups that have historically been 2 discriminated against including African- 3 Americans, Hispanics, and Native Americans, who 4 without this commitment might not be represented 5 in our student body in meaningful numbers. These 6 students are particularly likely to have 7 experiences and perspectives of special 8 importance to our mission." 9 This commitment, the witnesses will explain is part 10 and parcel of the law school's boarder interest in creating a 11 lively and diverse student body "by enrolling" - -this is 12 where it references critical mass, 13 "By enrolling a critical mass of minority 14 students we have ensured their ability to make 15 unique contributions to the character of the law 16 school." 17 Racial and ethnic diversity is a part of the value 18 the law school places on general diversity. 19 The policy was drafted to make these points clear and 20 very unambiguous. I should note and I think the Court noted 21 at the beginning that the Court has under submission the 22 evidence that we presented in connection with our motion for 23 summary judgment regarding the significance of the educational 24 benefits that come from having a racially diverse student 25 body. And Mr. Purdy this morning said that no one has taken 51 1 issue with the fact that there are educational benefits that 2 come from having a racially and ethnically diverse student 3 body. That it benefits the education of all students, 4 minority, non-minority. 5 And as an educational matter this is especially 6 important because of the fact that -- and unfortunately 7 we continue to be plagued by a segregated society. And I 8 would also add it has special significance for the legal 9 profession. 10 That's the admissions policy, your Honor. You'll 11 hear the testimony from the drafters, the two deans under 12 which it has operated and the two director of admissions that 13 have operated it. So given that context what is the extent 14 to which race is a factor in the law school's admissions 15 decision? The answer can't be quantified. It's one race. 16 It's one of many factors that are considered. It's simply 17 a part of the effort to have a diverse student body. And 18 it's taken into account to achieve that necessary critical 19 Mass. 20 I don't think there's going to be an argument that 21 you have to have a critical mass. The extent to which it is a 22 factor has to do with the minority applicants. Each file, 23 each file is individually read. The extent to which race is 24 taken into account will effect -- may effect a decision, but 25 it will effect in ways that vary from file-to-file, from 52 1 applicant-to-applicant because you read each file, 2 cover-to-cover. Race is not given, however, so much weight 3 that it prevents each applicant regardless of race from 4 competing with all other applicants to gain admissions to a 5 law school. 6 To the contrary. As to the admissions data that I 7 referred to earlier, the 1997 data shows the law school 8 rejects many minority applicants, two thirds of the 9 African-Americans that year. And this is not an isolated 10 year. That's a pattern across all the years. 11 Again, in 1997, it rejected a larger percentage of 12 the African-American applicants and the White applicants. 13 No one, no one could fairly examine that data and conclude that 14 race was an excessively weighed factor much less a trump card. 15 It's certainly not a super factor. It certainly does not have 16 the form of significance. But the question becomes: Isn't 17 there some way to quantify this use of race? 18 As Mr. Kolbo has indicated his expert, Kinley Larntz, 19 has purported to do. Actually there isn't. Mr. Larntz' 20 analysis is flawed. And our expert, Professor Raudenbush, 21 will show that. Moreover, not only his is method flawed, the 22 way he has implemented his own method is flawed. And thus he 23 has misleading, and I'll say fantastic, what he's going to 24 call odd ratios. 25 There is another point: The plaintiff's effort to 53 1 reduce our admissions process, the entire process to two 2 numbers, LSAT and grades, plus race is fundamentally at odds 3 with how we make any admissions decision. The plaintiff has 4 completely ignored how the decisions are actually made and has 5 substituted an artificially three-factor analysis: grades, 6 LSAT, race. And as long as misleading that this is, I just 7 want to take a look at it on its own terms which I think are 8 incorrect, but on its own terms. 9 Now, we produced in discovery the database that Mr. 10 Kolbo talked about that has a lot of data, but it's limited 11 data, but it has a lot of data that describes students, where 12 they're from, where they went to college, what they LSAT score 13 was, what their grades were, et cetera. And that's the data 14 that Mr. Larntz, plaintiff's expert used to come up with what 15 he's going to present to the Court. 16 We produced a chart that graphically illustrates that 17 same data. A number of witnesses will testify about the 18 charts we produced. I just want to show them to you. It 19 began in 1997. Here's what I want to show. It is a chart 20 that shows the admitted majority students. 21 THE COURT: What exhibit number is it, just for the 22 record, do you know? 23 MR. PAYTON: It's coming. 24 THE COURT: That's okay. 25 MR. PAYTON: I'm going to walk up and talk loud 54 1 enough for everybody. Can you see that? Can you look at your 2 Exhibit 180? 3 THE COURT: Sure. It's here. I'd like to have it. 4 It will take me a minute to get it in the right order. 5 MR. PAYTON: It's Volume 13, and it's Exhibit 180. 6 THE COURT: You may proceed. 7 MR. PAYTON: And what we have is we have a graph, a 8 chart. On the left side it shows the range of LSAT scores, 9 twenty, all the way up to one eighty. And on the bottom it 10 shows the ranges of GPA's. It's just a graph. And this plots 11 every single one of the majority admitted students for 1997. 12 And they're bunched in the upper right-hand corner just as Mr. 13 Kolbo indicated the policy says we try to get people who are 14 bunched up there, okay? So that's every admitted majority 15 student, okay. 16 Now, I'd to put up the same chart for the admitted 17 under-represented minority students. 18 THE COURT: What number is that? 19 MR. PAYTON: One eighty-one. 20 THE COURT: Okay. 21 MR. PAYTON: And this has the exact same scale. And 22 it shows every single one of the admitted under-represented 23 minority students. Again, bunched in the upper right-hand 24 corner. And these are transparencies so I'm going to overlay 25 them, and then synchronize the scale so they're on the exact 55 1 same scale and you can see that now what we see is a glob of 2 all of the students. This is now all of the students. And 3 you can see the overlay. If you could pull it apart so that 4 the judge could see just what the overlay looks like. Put it 5 back up there. You will see that there is considerable 6 overlap between the admitted majority students and the 7 admitted under-represented minority students. 8 Now, we can do the same thing for the students who, 9 in fact, were rejected in 1997. So if we put up the majority 10 students who didn't get in. And, this is very single one on 11 the exact same chart. And we just put on top of that the 12 overlay of the rejected minority students. I'm going to put 13 it right on top. And, again, you see there's considerable 14 overlap in the rejected students. 15 Now, what we see from this is really quite dramatic, 16 that what you would have expected to see given the way the 17 plaintiffs have presented this evidence is two completely 18 different universes of applications, okay, and that the 19 enormous gap, the terrible gap that he referred to in the 20 summary judgment was a super factor, the enormous consequences 21 that he referred to this morning, you would expect to see 22 completely different universes of the plots, but you don't. 23 In fact, you see that they look like one of the same thing, 24 just two little parts. And you can see that clearly there is 25 some difference, but it's clearly a difference that is much, 56 1 much smaller than the rhetoric has indicated. 2 That's the actual data. We just plotted it, okay? 3 We didn't do anything else with it but plot it up there so 4 that it can be seen because the visual is really quite 5 dramatic. It also shows and I think this is also important 6 that every one of these students looks really strong on just 7 these two measures. They're all up there in the upper 8 right-hand corner. 9 Now, we don't deny that we use race. We don't deny 10 that we take race into account. We don't deny that it's a 11 factor that can make a difference. If it wouldn't make a 12 difference, it wouldn't be a real factor. But as these charts 13 reveal, we use race quite judicially. 14 Now, I now want to look at how the decisions are 15 actually made because this is about an artificial world. That 16 doesn't reflect how we make decisions. When I said we don't 17 admit LSAT scores, we don't admit LSAT scores. We don't admit 18 GPA's. We look at whole people. And this will become really 19 clear in the testimony of Ms. Munzel, Mr. Shields, the two 20 directors of admissions. There's simply no mechanical process 21 of selecting students for admissions. Every file is read. 22 Every relevant factor is considered, and individual judgments 23 are made. 24 You're going to hear testimony about how the 25 admissions process operates. I'm going to describe it 57 1 briefly. 2 An application comes in. The application is put into 3 a file folder. Some information, most of the information 4 that's in this database, name, address, test scores, grades, 5 whether the applicant's a Michigan resident, race, gender, 6 undergraduate institution, that kind of information is loaded 7 into a database. When letters of recommendation and the 8 transcripts are received the file is ready, is complete, it's 9 ready to be reviewed. 10 Then usually the director of admissions, but every 11 now and then someone, but usually the director admissions then 12 reads the file folder. They start by looking at the objective 13 factors, some of the factors, the grades and the test scores. 14 The first impression of an applicant. And we're going to see 15 an actual -- and we're going to redact the name of the actual 16 student, but we're going to go through an actual file folder 17 so you can see exactly how this works and appreciate how the 18 process works, that there's a report in there that's prepared 19 by a centralized organization, Law Services, and it assembles 20 various information. And the report will give you a sense not 21 only of what the grades and the test scores are, but will put 22 it in the context of every other student from that student's 23 college who has also applied to law school. So you can see 24 just how that student did in comparison with all the other 25 students that are coming from a college and are trying to get 58 1 into law school. 2 Let me just also mention something to just sort of 3 set it aside because there's been something that's misleading 4 here. There has been some mention, at times a lot mention of 5 what's called the law school index score. And that is a score 6 that reflects the relationship between the LSAT, undergraduate 7 grades, and first year law school grades. Now, there is such 8 an index formula and there is an index score. However, we 9 don't use it to make decisions at all about admitting or not 10 admitting a student. We don't use it at all for that purpose. 11 It's not even in any student's file. It's not there. When we 12 go through a file you'll see there's no place where there is 13 an index score. 14 The index score is instead used simply to figure out 15 the order in which you want to read files. It's just a way of 16 sorting files you want to read. But let's go back to the 17 file. 18 For every single applicant, they go in and read the 19 rest of the file, no matter how high or low the LSAT scores or 20 the grades are. They turn to the undergraduate transcript. 21 They figure out what they can from the applicant, from all of 22 that. Where did the applicant go to college? What kind of 23 classes did the applicant take? Was thee a trend in the 24 grades? Was the transcript padded with easy courses? Did the 25 applicant compare himself or herself for the study of law? 59 1 They turn to the applicant's essays. What makes this person 2 tick. What have they done. What does this person have to say 3 about why they're applying to law school. Is there anything in 4 their background or experiences that make them unusual or 5 interesting that leads you to think that they will make 6 special contributions to their fellow students and their law 7 school class? Do they have something interesting to say? Are 8 their essays well written? Can they describe something about 9 their activities, interests, or background which actually is 10 of note. And then they'll look at the letters of 11 recommendation. Do the applicant's college professors speak 12 of the applicant? Do their supervisors or their colleagues 13 work? Is this someone who would contribute to the class? Is 14 it likely that this person would contribute to the education 15 of their fellow students? Is there something in their 16 background that the recommender can tell us. 17 And, yes, one of the things that they also look at 18 and consider is the applicant's race. Will they contribute to 19 a racial or ethnic diversity at the law school? And part of 20 this is about the concept of critical mass, no doubt about 21 that. It's not as if, however, there's a particular number of 22 law students that is critical mass. But one of the purposes 23 of the admissions process is to make sure that there are more 24 than a token number of minority students because in order to 25 get the benefits of diversity, you can't create a sense of 60 1 isolation among the minority students as you do when you just 2 have token numbers. Otherwise, you will not get the benefits 3 that you're seeking. 4 It's not a matter of a concept you can put a specific 5 number on. But I think everyone understands what the concept 6 is about. 7 Quote -- this is from Bakke, 8 "When the committee on admissions reviews the 9 large middle group of applicants who are 10 admissible and deem capable of doing good work in 11 their courses, the race of an applicant may tip 12 the balance in his favor just as geographic origin 13 or life spent on a farm may tip the balance in 14 other student's favor." 15 That's Justice Powell in Bakke. And that's just what 16 our policy's contemplates and just what we do. 17 "So long as the university proceeds on 18 an individualized case-by-case basis, there 19 is no warrant for judicial interference in the 20 academic process." 21 That's Justice Powell in Bakke again. 22 As to the issue of whether the law school's use of 23 race constitutes a double standard, I think that question can 24 be very easily resolved. The elements of the earlier and 25 discarded special admissions program that Mr. Kolbo talked 61 1 about, a special admissions program, they simply don't exist 2 any more at all. The evidence will show conclusively that 3 there are no separate consideration of minority or 4 non-minority applicants. That there's no separate data base. 5 That there are no separate readers of certain files. That 6 there are no separate anything. There is one system. And all 7 of the applicants are considered by using the same policy. 8 In fact, other than the fact that the law school does 9 pay attention, some attention to number, by trying to enroll a 10 critical mass of minority students, other than that there's 11 absolutely no difference in the manner that race is considered 12 and the manner that say, good essays, or colorful letters of 13 recommendation are considered. 14 Does the law school have a double standard for 15 students with good letters of recommendation? Of course not. 16 Does it have one standard for students who have leadership 17 potential and a different and lower standard for students who 18 do not? Of course not. 19 What the evidence will show is that these are factors 20 that are taken into account in trying to understand the whole 21 person who is trying to gain admission to the law school. We 22 consider whether the applicant has strong letters of 23 recommendation. We consider the applicant's leadership 24 abilities. We consider whatever is presented that gives us 25 insight into the applicant's ability to succeed and to 62 1 contribute to the law school. And we consider race as part of 2 that process. 3 The term "double standard" is just a label that's put 4 on by those who think we shouldn't use race as a factor at 5 all. 6 Now, yesterday, I think we all reflected on the life 7 and inspiration of the Reverend Martin Luther King, Jr. It 8 was a time to reflect on progress as well as how much there 9 yet remains to be done. It remains to be done to bring us 10 together as a society and to achieve understanding throughout 11 society. 12 "It is not too much to say" noted Justice Powell in 13 Bakke "that the nation's future depends on leaders trained 14 through wide exposure, to the ideas of students as diverse as 15 this nation of many peoples." 16 Justice Powell then noted that the benefits of a 17 racially and ethnically diverse student body is a matter as he 18 said, "even at the graduate level" where "our tradition and 19 experience lends support to the view that the contribution of 20 diversity is substantial." And he concluded by quoting these 21 two sentences by Swett versus Painter, the 1949 case in which 22 the Supreme Court found "segregated and legal education 23 unconstitutional, 24 "The law school, the proving ground for legal 25 learning and practice cannot not be effective in 63 1 isolation from the individuals and institutions 2 with which the law interacts. Few students and 3 anyone who has practiced law would choose to study 4 in an academic vacuum removed from the interplay of 5 ideas and the exchange of views with which the law 6 is concerned." 7 Your Honor, the relevant evidence that will be 8 presented at this trial will establish that the University of 9 Michigan law school uses race in an appropriate way to achieve 10 a diverse student body with a critical mass of minority 11 students. It will show that the process reviews each 12 application individually, one by one, using the same 13 consideration and that that is exactly what Justice Powell 14 commended in Bakke. 15 THE COURT: Thank you. 16 Ms. Massie? 17 MS. MASSIE: Judge, can we take a short break, 18 please? 19 THE COURT: Sure. Why don't we take our morning 20 break right now and we'll be all set. We'll take about 21 fifteen minutes. 22 (Court recessed, 10:20 a.m.) -- -- -- 23 24 25 64 1 (Whereupon a recess is had.) 2 THE COURT: Okay. You may be seated. Thank you. 3 Okay. I can't say that we will always be as prompt as we are 4 today, but we took everything off our docket today so 5 that we would be able to accommodate everybody here. 6 Sometimes when we say fifteen minutes, what the Court calls 7 a fifteen-minute recess, I get in the back and there's a 8 million orders to sign and a million phone calls. My kids 9 were calling, something's wrong or car doesn't start or 10 something like that. So usually fifteen-minute recess 11 takes a little bit longer, but today we're going to try to 12 be as punctual as we can, but I don't want you to believe 13 that that's going to happen all the time, because it just 14 doesn't. And next week, one of these weeks coming up, I 15 don't think it's next week, I may be presiding, which I 16 will need to handle miscellaneous matters, too, so with 17 that said, the Intervener's interested in doing an opening 18 statement. 19 MS. MASSIE: Thank you, Judge, we are. Judge 20 Friedman, this will be a trial about the most fundamental 21 concerns this nation has always faced and faces now. Our 22 history has taken shape in a field defined by two magnetic 23 poles; on one hand the pole is segregation and the 24 maintenance of inequality, and on the other hand, are truer 25 and better impulse towards racial equality and integration. 65 1 That tension has defined many sectors of our common light, 2 but no such sector has been as much defined by that 3 tension, and has been as in turn as defining of that 4 tension as education. This case began as an attack on the 5 measure of progress that we've achieved. But it gives us 6 the opportunity, ironically, to achieve far more. The 7 Plaintiff's proofs are, in fact, the Intervener's proofs. 8 Only one of our witnesses, a statistician named 9 Kinley Larntz about whom you've heard a little bit will 10 have anything to say that bears on her basic claim. That 11 claim is that aggregate differences by race and test scores 12 and grades prove discrimination against white law school 13 applicants. 14 In true, as our witnesses for the intervention 15 will show, that prove exactly the opposite. They prove 16 that continuing and persuasive existence of discrimination 17 and bias against Black and other minority applicants, not 18 discrimination against white law school applicants. 19 Affirmative action will convince you is the 20 only way to offset that bias against minority applicants. 21 In fact, it is only possible to read Kinley Larntz work as 22 evidence of discrimination against white people by sealing 23 it up in a factual vacuum chamber and therefore by 24 implicitly accepting the idea that test scores and grades 25 are fair and race neutral measures of merit, which is to 66 1 say, in turn, the view that Black, Latino and Native 2 American law students are inherently and biologically 3 inferior. 4 The factual erring of all three of the issues 5 that you have set for trial in this case will definitively 6 refute that racist and pernicious view. They'll provide a 7 context for understanding why the academic criteria are not 8 race neutral, and why at this moment in our common lives 9 together they could not be. They'll show that affirmative 10 action lessens the extent to which race is a factor in 11 admissions in real terms, and that affirmative action is 12 absolutely necessary as a first step toward fairness in the 13 application process. And they'll show that race is not 14 just a box that you check on an application form so that a 15 statistician can later make distinctions in his data about 16 it as the Plaintiff would have it, but a whole set of 17 contemporary and historical experiences in which inequality 18 and unfairness only ever run one way against black people 19 and other minorities in this society, not ever, not ever 20 yet in our history against white people. 21 So in the end while Kinley Larntz' work is, we 22 agree, marred by exaggeration and mythological problems, 23 its basic point that the criteria differences exist is 24 correct. That points the beginning, not the end of the 25 inquiry. We'll show why these differences exist, why 67 1 they're a function of racism; and thus, why the 2 consideration of race and admissions is an absolute 3 necessity. 4 The discrimination against minorities and 5 unearned advantages for white applicants which structure 6 educational opportunity in the broadest sense, including 7 the opportunity to perform at the highest level and which 8 are tempered by affirmative action have several sources. 9 Like we need to begin with broad questions of social and 10 educational inequality and with the connections between 11 race and class, but race is a force in American life, 12 independent of class, and particularly so in education. 13 All of our witnesses will help show how these 14 dynamics are operationalized, are put into effect in higher 15 education admissions, and how they provide a necessary 16 context for evaluating the impact of any admissions 17 program, before you even get to its intent. What's its 18 impact, what are its effects? 19 Gary Orfeld is one of the foremost experts. In 20 fact, it's hard to think of anyone who could really compete 21 with him for this title on school integration in this 22 nation. And he's occupied that position for decades. He's 23 from Chicago. He now teaches at the Harvard School of 24 Education and he's testified in countless cases involving 25 integration and education at all levels, often as a 68 1 court-appointed witness. 2 Gary Orfeld will testify about how racial and 3 equality and segregation are growing in our country right 4 now, not -- excuse me, not diminishing, but growing. He'll 5 talk about the social costs that are associated with that. 6 Together with another of our experts, Eugene 7 Garcia, who's the Dean of the Education School at the 8 University of California at Berkeley. Gary Orfeld will 9 show that affirmative action in higher ed is a necessary 10 part of increasing equality throughout the educational 11 system, including in K through twelve; that is to say, 12 diminishing the current, extraordinarily cruel and 13 destructive role of race and races in education, including 14 all the way up on through professional school and through 15 the application process that leads to it. 16 Orfeld and Garcia will show that only 17 affirmative action can help us move forward. They -- only 18 affirmative action can help us move away from a system in 19 which opportunities are sharply constrained and defined by 20 race and racism. Affirmative action, in other words, 21 diminishes the role of race in education and in, excuse me, 22 in admissions. There's no substitute for it. 23 K through twelve improvements depend upon it 24 absolutely. And we can see how necessary it is for 25 achieving a measure of integration in higher ed by looking 69 1 at the demographic figures from the University of Michigan 2 Law School before this school adopted affirmative action. 3 It was a segregated school. It wasn't 4 segregated by law but it was segregated, in fact. And in 5 law schools in California and Texas where affirmative 6 action has been eliminated, the schools have returned to 7 segregation. 8 Orfeld and Garcia will be testifying principally, 9 though not exclusively, about race and education with 10 respect to Black and Latino young people. We also have a 11 witness on our may-call list, Faith Smith, who's an expert 12 on Native American educational affairs and she'll be 13 testifying, if time permits, about the dire consequences of 14 eliminating affirmative action on the Native American 15 community and on Native American young people in terms of 16 their ability to get any kind of a higher education. And 17 that's because of the continuing dramatic effect of race 18 and racism, of social inequality by Native Americans in 19 this country. 20 She'll convince you, Judge Friedman, that when the 21 University of Michigan Law School takes the race of the 22 rare Native American applicants who's overcome severe 23 burdens, to the extent that she or he is even in a position 24 of being able to consider applying to a law school, much 25 less a law school such as the University of Michigan. The 70 1 law school by taking her race into account is mitigating, 2 is mitigating race discrimination, not adding to it. 3 John Hope Franklin will provide historical context 4 for the program in place at the law school. He'll testify 5 that steps toward integrating education have always meant 6 the reduction of the role of race as a factor in the 7 starkly unequal distribution of educational resources. 8 John Hope Franklin has lived through much of the 9 history that he will describe. And he's one of the world's 10 most honored historians as well as being the Chair of the 11 President's Initiative on Race. 12 There are two very highly regarded scholars on our 13 may-call list, both of whom were originally listed by the 14 university in this case? Thomas Sugrue, who's a 15 sociologist and historian. And Eric Foner, a historian, if 16 called, make clear respectively the contemporary and 17 historical significance of race in American life, its 18 singularity as a category. 19 Sugrue's research is granted in current data from 20 the State of Michigan which, as you know, provides about a 21 third of the University of Michigan Law School students. 22 It shows that race is connected to class in the state, 23 very, very deeply, here as elsewhere, I might add. But 24 that continuing problems of racism in many forms and 25 especially of educational segregation mean that race is 71 1 also an independent dynamic. It has its own impact on 2 every aspect of public life in the state. 3 Eric Foner's work puts the significance of race 4 and racism in historical perspective showing that in the 5 context of our history in the United States it's not 6 plausible to think that we could reduce the extent to which 7 race is a factor by claiming to be race neutral in higher 8 ed admissions. 9 Alls the ways in which discrimination against 10 minorities and race-based inequality continue to pervade 11 and structure the educational process. And they have shown 12 to obtain on the very campuses that provide the largest 13 number of student applicants to the University of Michigan 14 Law School. The Intervener's Commission to Study of 15 Conditions for Black, Latino and Native American students 16 on four of the main feeder schools to the law school; the 17 University of Michigan itself, its undergrad college, 18 Michigan State University, UC Berkeley and Harvard. 19 The team of researchers who conducted the study 20 was headed by Walter Allen, who's an educational 21 sociologist at U.C.L.A. who's testified many times in 22 critical and groundbreaking cases involving educational 23 desegregation at all age levels, including Knight versus 24 Alabama and Ayers versus Fordice. He's also testified in 25 other race discrimination and affirmative action cases. 72 1 And he's received numerous awards for teaching, research, 2 distinguished careers, scholarship, etc. He was joined, 3 among other people by Dan Sowarzanaw, who teaches in the 4 educational school at U.C.L.A. who we may call if time 5 permits. 6 Across the range of geography and across the range 7 of selectivity represented in the campuses which were 8 studied, the four campuses which were the locusts for the 9 study, the team found overwhelming evidence to confirm and 10 sharpen findings of long-existing research on the severe 11 barriers and pressures that face minority students on 12 mostly white campuses. These are pressures and barriers 13 that they face, due only to their race, that the pressures and 14 barriers isolated out of all the other pressures and 15 barriers that students, as a whole, all students can feel 16 on campuses. They're not related to class, though there 17 are particular -- there's a greater likelihood that a set 18 of pressures and barriers associated with class is going to 19 be faced by more of these students. Those are dealt with 20 in the study. But the study is focused on the pressures 21 and barriers that, specifically, relate to race and to the 22 continuing problems of racism in the environment on those 23 campuses. 24 Those disadvantages and stresses have real 25 concrete demonstrable effects on academic performance. And 73 1 that's one of the key points and one of the key findings of 2 the study. It shows definitively that the very slight gap 3 between aggregate GPAs of white students and minority 4 students at the University of Michigan Law School, half of 5 the data that Kinley Larntz relies on for his study is an 6 artifact of discrimination against the minority students, 7 not against the white students. 8 Grades aren't a race-neutral measure of academic 9 performance in undergraduate education, rather they capture 10 the way in which disadvantage for minority students from 11 racial profiling and racist slurs to subtler kinds of 12 stigma, exlcusion and hostility continue to completely 13 define the experiences of Black and Latino and Native 14 American students on those campuses, continue to define the 15 experiences of those students, I should say, every day, 16 every day. 17 If race weren't a factor in admissions to the law 18 school, those forms of racist unfairness and bias wouldn't 19 be just ratified, they would be intensified. Existing 20 racial discrimination would be found to be a basis for 21 further racial discrimination. 22 The basic case of so-called reverse discrimination 23 on differences and GPAs, between white and minority 24 students is to argue, in essence, that racism and its 25 effects should be accepted, indeed and shrined as positive 74 1 norms. We reject that course and we're confident that you 2 will. 3 We have a team of standardized testing experts 4 with a lifetime of experience among them. David White, of 5 the Research Advocacy and Training Non-profit, called 6 Testing for the Public, Jay Rosner, of the Princeton Review 7 Foundation, and Marty Shapiro of Emory's Psychology 8 Department. 9 Their testimony will prove that the LSAT and other 10 standardized tests present an even more acute case of bias 11 and unfairness than do other academic criteria such as 12 grades. The bias on such measures is more a matter of race 13 than of class, though it's clearly a matter of both, and 14 includes, but is in no way limited to obviously unfair 15 distracting and/or insulting questions. 16 It involves, fundamentally, the statistical 17 norming procedures that underlie every LSAT administration, 18 the question-selection process, the process of developing, 19 pre-testing and then selecting questions for inclusion in 20 scored sections of the test. 21 Those methods, those statistical norming 22 procedures perpetuate, and indeed tend to increase the test 23 score gap in a relatively consistent way over years and 24 decades. That's in sharp contrast to the grade gap, which 25 has diminished over time as the level of integration and 75 1 inequality on our nation's undergrad campuses, while we're 2 still far from perfect and far from where we need to be has 3 increased. 4 That gap in grades has decreased over time. The 5 test score gap remains constant and that, again, is an 6 artifact of test norming procedures. And we have experts 7 who are going to lay that out for you, Judge. The 8 university's expert, Claude Steele, will testify that the 9 test score gap is also a product of how racial stereotypes 10 infect the psychological environment of the test taker. 11 We're also going to have some testimony on how 12 narrow the range of skills measured by tests such as the 13 LSAT is. Unsurprisingly, therefore, it correlates only 14 very weakly with performance in law school and not at all, 15 not in any way with success as a lawyer. 16 The Intervener's expert, Rick Lempert, who's also 17 a fact witness for the university Mr. Payton spoke about 18 earlier. He was on the Admissions Committee in 1992. He 19 came up with a policy that's being challenged here. He's 20 conducted a study on U of M law grads. And he compared 21 minority grads to their white counterparts across several 22 measures of success in practice. There are absolutely no 23 differences between the two groups, except for difference 24 in community service where the minority grads outperformed 25 their white counterparts, differences in mentorship of 76 1 young attorneys of all races where the same was true, and 2 differences in provision of services to minority clients 3 where the same was true. 4 Most of the Black and Latino alumni that he 5 studied almost certainly would have been rejected under the 6 admissions system that's proposed implicitly and 7 unavoidably by the Plaintiff's lawsuit. 8 They would have been rejected, despite the 9 contributions they've made to the Bar of this state and to 10 the Bar of the nation. And despite the fact that those 11 entry credentials that would have formed the basis of their 12 objection had no correlation at all with their success as 13 attorneys in practice. 14 Marcus Feldman, who's a professor at Stanford, 15 McArthur Fellow and a Co-director for the Computational 16 Genetics in Biological Modeling Center is a witness who's 17 also on our may-call list who'll be called, if time 18 permits. And he'll show that differences on IQ and other 19 standardized tests, including the LSAT and SAT and other 20 high-stakes educational tests are the product of social 21 inequality. They're not the product of nature and that 22 race itself is a social concept, not a biological one. 23 All of these differences in performance are 24 changeable. They require that we change things about the 25 test. They require that we change things about the 77 1 society. But they're all changeable. 2 And, in fact, as you can see from the fact that 3 the gap in grades has diminished over time, we stand on 4 substantial progress. We have a long way to go, but we've 5 come a long way, too. At least two students will take the 6 stand to provide, to provide you, Judge Friedman, with a 7 kind of a first-person perspective on the case that the 8 experts will prove. 9 Agnes Aleobua, who's a Black undergrad at U of M 10 from a middle-class Detroit family, and Connie Escobar, 11 who's a working class Latino and Native American law 12 student, originally from Chicago, will explain how their 13 own educational experiences have been shaped by continuing 14 racist, inequality and disadvantage, both as related to, 15 and as distinct from questions of social class. 16 These young women will also provide the Court with 17 a first-hand sense of what the opportunity to attend the 18 University of Michigan has meant to them in terms of their 19 sense of their own potential, Judge, but also their sense 20 as a potential of this society. 21 In contrast, neither the Plaintiff nor any other 22 member of the class she purports to represent, will take 23 the stand to address the issues or the equities that are at 24 stake in this trial. 25 These matters I've been talking about have to be 78 1 addressed even before you reach the university's proofs. 2 Those are proofs that show beyond any doubt whatsoever that 3 the university is acting in good faith, that it has no 4 intent to discriminate against white applicants, and that 5 it's well within the boundaries of Bakke. 6 But you don't even need to get there, Judge. The 7 reason why is that the Plaintiff's proofs, Kinley Larntz' 8 proofs, don't establish that there is any effect of racial 9 discrimination in the U of M's affirmative action policy at 10 the law school. They haven't shown that there's any effect 11 of racial discrimination. And there is no need, therefore, 12 for you to reach the question of intent. 13 Again, if you choose to do so, you'll find that the 14 university is operating in good faith, that there's no 15 racial animus toward white people, that the admissions 16 program is, the affirmative action component of the 17 admissions program is a step toward a fairer and juster 18 system. We're completely confident about that. But 19 there's no need to get to that point. 20 The goals of diversity in moving toward 21 educational integration are more than sufficiently 22 compelling for the university to be doing what it's doing. 23 But the fact is the Plaintiff has established nothing 24 through her statistical evidence. The affirmative action 25 plan that's under challenge mitigates bias and 79 1 discrimination against minority applicants. It mitigates 2 the unearned advantages and privileges possessed by white 3 applicants, just merely on the basis of their race. 4 It's not in the end a preference for minorities or 5 even, even a racial classification. It's rather a 6 corrective to a system of preferences, to a system of 7 unearned privileges for white people. 8 The Intervener's experts will present evidence 9 that's well established in several fields, but which has 10 never been brought to bear in a case like this one. We're 11 confident that it's on the basis of that evidence that 12 you'll uphold affirmative action and equality. 13 There have been very unfortunate times in our 14 legal history when courts have stood against integration 15 and for segregation, and in those moments they've 16 discredited the law. That's because integration is what 17 people want. It's what the majority of people want. It's 18 what people have fought for and died for within our 19 lifetimes, several times within the lifetimes of people in 20 this room, Judge. And in the end it's because integration 21 is what is right for our society. 22 THE COURT: Thank you. Plaintiff, first witness. 23 MR. KOLBO: If I could address the Court brief with 24 a matter? 25 THE COURT: Sure, absolutely. 80 1 MR. KOLBO: We conferred during the break if it's 2 all right with Your Honor we expect if that Stillwagon will 3 be finished sometime before lunch, and we thought we would 4 not call Miss Munzel until after lunch. 5 THE COURT: That's great. Absolutely. We'll 6 always arrange it so that we can, we don't have to just 7 break and go back and forth. Sure. 8 MR. KOLBO: Thanks, Your Honor. 9 MS. MASSIE: Thanks Judge. 10 MR. KOLBO: In that case, Your Honor, the 11 Plaintiff will call Mr. Allan Stillwagon to the stand as its 12 first witness. 13 THE COURT: Mr. Stillwagon, will you step forward 14 please. 15 A L L A N S T I L L W A G O N 16 was called as a witness and after having been 17 sworn was examined and testified as follows: 18 DIRECT EXAMINATION 19 BY MR. KOLBO: 20 Q Good morning, Mr. Stillwagon. 21 A Good morning. Is this on? 22 THE COURT: Tap it. Let's see. No. Thank you. 23 A How's that? 24 Q Could you state your full name please, sir? 25 A Allan Thomas Stillwagon. 81 1 Q Mr. Stillwagon, I'll introduce myself, we've met once 2 before, I think a couple of years ago in the course of your 3 deposition, is that correct? 4 A Yes. 5 Q We haven't met since then? 6 A No. 7 Q My name is Kirk Kolbo and I represent the plaintiff, 8 Miss Barbara Grutter, in connection with this lawsuit. 9 You're here today because you've been subpoenaed, is that 10 correct? 11 A Yes. 12 Q Could you tell us where do you reside? 13 A In Ann Arbor. 14 Q Ann Arbor, Michigan? 15 A Yes. 16 Q Were you, are you currently employed? 17 A No, I'm retired. 18 Q And how long have you been retired? 19 A Since March of 1999. 20 Q At some point were you the Assistant Dean and 21 Admissions Director at the University of Michigan Law 22 School? 23 A Admissions Office, yes, from 1979 to August, 1990. 24 Q Okay. Was the fall of 1990 the last academic year for 25 which you made admissions decisions at Michigan? 82 1 A Yes. Probably 95 percent that year. 2 Q And did you hold, essentially, the same position in 3 the Admissions Office from 1979 until fall of 1990? 4 A Yes. 5 Q Can you -- 6 THE COURT: Excuse me one second. Anyone that 7 wants, any of the lawyers that want to move around, because 8 I see there's -- you're certainly welcome to move anyplace 9 in the courtroom, so you can see. 10 MS. MASSIE: Thank you, Judge. 11 THE COURT: Go on. I'm sorry. 12 MR. KOLBO: Thank you, Your Honor. 13 Q Could you just describe briefly, generally, what your 14 authority was over admissions decisions during your tenure 15 in the Admissions Office from 1979 up until fall of 1990? 16 A Well, I inherited a set of practices and principles 17 from the earlier administrations. The policies changed 18 very little during the time I was there. And I had 19 responsibility for making the decisions. 20 Q Were you the principle decision maker with respect to 21 decisions to admit or deny, or other actions that might be 22 taken with respect to particular applicants? 23 A Yes. 24 Q And you made those decisions, and we'll get into it in 25 more detail later on; but you made those decisions pursuant 83 1 to policies you understood with the law school with respect to 2 admissions? 3 A That's right. 4 Q Would it be fair to say that you were the one who made 5 most of the decisions, admissions decisions, with respect 6 to students who applied from 1979 up until the fall of 7 1990? 8 A Essentially all of them. 9 Q Okay. Just to be clear, once you left in 1990, you 10 don't have any knowledge about the current workings of the 11 law school admissions policy, is that correct? 12 A Not at all. 13 Q Or practices. You're not familiar -- my understanding 14 is there will be testimony about the fact there's a policy, a 15 written policy that went into effect in 1992. You weren't 16 part of that process, correct? 17 A No, I was not. 18 Q Was there, during your tenure, was there a faculty 19 admissions committee or something like that? 20 A Yes. There's a faculty committee that devoted itself 21 to policy and occasional meetings of which difficult or 22 particular questions were put, but not very often. 23 Q And so the admissions committee, faculty admissions 24 committee, wasn't very active in the actual making of 25 admissions decisions? 84 1 A No. 2 Q In the case of particular candidates? 3 A No. 4 Q That again fell principally to you, is that right? 5 A That's correct. If there were other people involved, 6 it would more often have been with me. 7 Q In a particular case you might take a case to the 8 dean? 9 A Yes. 10 Q Would that, was that Dean Sandalow first? 11 A It was Dean Sandalow, and Dean Bollinger, briefly. 12 Q I take it there were -- you had a staff, did you not? 13 A Yes. 14 Q In the admissions office? 15 A Yes. 16 Q Small staff? 17 A Oh, three to five permanent people, and ten to fifteen 18 during the season. 19 Q And can you give me some idea what authority those 20 individuals had to make admissions decisions from your 21 tenure? 22 A They had no authority to make admissions decisions. 23 Q But they might review files with you, and then you'd 24 make the ultimate decision? 25 A Not very often. I had an assistant who reviewed files 85 1 in the last couple of years, but even so, I read every line of 2 every word of every application. 3 Q Now, was there any single document or set of 4 guidelines as far as, that set forth in writing the, the 5 law school's admissions policies or guidelines during your 6 tenure? 7 A Yes. There was an admission policy which was 8 published in the Law School Bulletin. 9 Q All right. 10 A And then there were some operational guidelines that 11 were handed down. 12 Q I wonder if I could ask Dwayne to show the witness 13 Exhibit 55. If you could turn to tab 55, Mr. Stillwagon, 14 and take a moment, if you would, and review the document, 15 find that tab. 16 A Yes. That's essentially the policy. 17 Q Let me just take you through a little background here 18 first of all? 19 A Sure. 20 Q The first page of Exhibit 55 is identified as Law 21 School Announcement, 1988 to 1989, correct? 22 A Yes. 23 Q And then, looks like we got some excerpts here on the, 24 what is identified as page 85, as part of this, because 25 obviously a larger document, there is a page that talks 86 1 about J.D. program admission and finances, and below that 2 admissions, is that correct? 3 A Yes. 4 Q If you want to take a look -- have you seen this 5 document before? 6 A Oh, yes, I edited it many times. 7 Q And is this the bulletin that you just described a few 8 moments ago? It's set forth admission with some policies 9 with respect to admissions practices of the law school 10 during your tenure? 11 A Yes. 12 Q Now, I want to focus on, basically, the third, 13 starting with the third paragraph and probably continuing 14 on down to the fourth paragraph of this page, third 15 paragraph beginning "one half of the entering class". And 16 I'm just going to ask you, as you read that, I'm going to 17 ask you some general questions. I'm not going to 18 necessarily take you through this line by line. 19 But the bulletin, as I understand it, describes 20 how a part of the class is selected, "primarily on the 21 basis of particular academics of tests, calculated on the 22 basis of LSAT tests, undergraduate records, and studies of 23 past performance of students of the law". Am I correct 24 that describes one part of the class being selected in that 25 fashion? 87 1 A Oh, yes, but I would emphasize that the last sentence 2 of that paragraph was very much in force as well. 3 Q The last sentence being? 4 A "That is to say that given a set of numbers or an 5 index -- nevertheless, my charge during those years was to 6 admit half of the class because of their academic strength 7 at large. 8 Q Right. Including emphasis on LSAT scores, grades, 9 undergraduate strength, things of that nature? 10 A Yes, but these were also years in which we were -- the 11 tide was turning and fewer than half of the new law 12 students came to us from undergraduate schools. So 13 graduate and professional schools and other academic 14 achievements were becoming more important. 15 Q And that's, that describes one part of the, one part 16 of the process, one part of the class that was selected, 17 correct, academic credentials? 18 A Yes. Keeping in mind that, that half and, half of all 19 other processes was divided by Michigan residents and 20 Michigan non-residents, and they have very different 21 qualifications. 22 Q Sure, and I'll probably get into that? 23 A Yes. 24 Q I'm just trying to sort of make sure -- is the 25 document, basically, an accurate description, at least, as 88 1 far as it goes? 2 A Yes? 3 Q Of how things worked when you were there? 4 A Yes. 5 Q It also describes the document, as the paragraph 6 continues, that another part of the class is selected from a 7 "pool of students"? 8 A That's right. 9 Q Who's "grades and test scores qualify them for further 10 consideration and whose selection would make the law school 11 a more livelier place"? 12 A Yes. 13 Q Was there sort of this division between, in some 14 respects, part of the class being selected on the basis of 15 academic success, as defined by yourself in the bulletin, 16 and another half roughly being, or other part, at least, 17 being considered on the basis of other factors? 18 A That's correct. 19 Q Okay. Was there a distinction during your tenure 20 between students who, on the one hand, were considered 21 primarily on the basis of their academic success, and those 22 who were selected from what's called the pool? Was there a 23 distinction between the kind of credentials that those 24 candidates brought to the school? 25 A Oh, yes. 89 1 Q What was that? Can you generally describe what the 2 nature of that distinction was? 3 A Well, the principle distinction, because of the way 4 the pool was constructed, would be that the pool, that is, 5 the two pools; the resident and the non-resident, would 6 have relatively lower LSAT scores than grades. 7 Q The pool applicants would? 8 A Yes. 9 Q And that's both the non-resident pool applicants and 10 the resident pool applicants? 11 A Yes. 12 Q They would have relatively low, lower grades and test 13 scores than those chosen from, on the basis of primarily 14 academic success? 15 A Right. 16 Q Okay. 17 A And in addition, the pool would contain all of those 18 with relatively high LSAT scores and grades who were not 19 offered admission the first time around. 20 Q Okay. Now, the bulletin goes on and refers, I think, 21 on, between pages 85 and 86. It goes on to state that "in 22 administering its admission policy" -- this is at the 23 bottom of page 85, "the law school recognizes the racial 24 imbalance now existing in the legal profession and the 25 public interest in increasing the number of lawyers from 90 1 the ethnic and culture minorities significantly 2 underrepresented in a profession. Minorities are strongly 3 encouraged to apply and to call upon Assistant Dean Allan 4 Stillwagon for information and assistance". Going on, and 5 this is now on page 86. "Black, Chicano, Native American 6 and many Puerto Rican applicants are automatically 7 considered for a special admissions program designed to 8 encourage and increase the role for minorities". Did I 9 read that completely? 10 A Yes. 11 Q Was there such a thing during your tenure as the 12 special admissions program for certain minority students? 13 A Yes. 14 Q And was the special -- we talked earlier -- a few 15 minutes ago we talked about this pool of candidates. Is 16 the special admissions program, is that part of a pool, or 17 is that something different from the pool? 18 A It's different from the pool. 19 Q Do I understand then that there were during your 20 tenure, sort of three general categories, putting aside for 21 a moment the issue of residency and non-residency. There 22 are those students selected primarily on the basis of 23 indicators of academic success. There are those students 24 picked, or were picked, from what has been described as the 25 pool; that is, those students with somewhat lower academic 91 1 credentials, is that correct? 2 A Yes. 3 Q And a third category was there were students picked, 4 minority students from the groups that we've read here who 5 were picked as part of what was called, and you have 6 identified as a special admissions program, is that 7 correct? 8 A Yes. Although there were of course minority students 9 in every group. 10 Q There were certainly minority students who were 11 eligible for and who were selected for admission, based 12 solely on academic success, is that true? 13 A Yes. 14 Q And there were such students who were, could be 15 selected and were selected from the second category that 16 you talked about, the pool, is that correct? 17 A Yes. 18 Q Where were most of them selected from for admission, 19 the ones that were actually offered admission? 20 A The most, or approximate half of the offers would have 21 come from the first two groups. 22 Q Okay. 23 A But -- 24 Q -- Are you talking about minority applicants now? 25 A Minority applicants. 92 1 Q Okay. 2 A But that group represented those minority applicants 3 who had applied to all of the top law schools in the 4 country, so the majority of applicants who enrolled would 5 come from special admissions. 6 Q The majority of minority students who were both 7 admitted and enrolled at the University of Michigan Law 8 School, both those combinations, most of those minority 9 students fell into these designated groups were admitted 10 through the special admissions programs? 11 A Yes. 12 Q Now, I just want to make sure I understand this. With 13 these three categories that we've talked about, academic 14 credentials, pool and special admissions program, can you 15 explain to me what the impact of residency versus 16 non-residency was in terms of how selections might be made 17 from those three groups of students? 18 MR. PAYTON: Your Honor, I'm going to, I guess 19 maybe just to preserve the record. I understand how you 20 ruled, but I'm finding this is going further and further 21 out of any zone of relevance, how residents and 22 non-residents and something in the 1980's system that 23 doesn't exist. 24 MR. KOLBO: You know, I think Mr. Payton has 25 talked a great -- talked about that race is one of a number 93 1 of factors as part of a larger process. I'm just trying to 2 get some background here as to how this system works. 3 THE COURT: I'll allow it for background, again as 4 background. 5 MR. KOLBO: Can you just describe briefly, is 6 there some relationship between the three categories we've 7 talked about in terms of how selections are made and some 8 relationship, if we know, as between residency and 9 non-residency, as being a factor in the admissions process, 10 generally speaking? 11 A Very prudently, the first group of non-residents would 12 have the strongest academic interventions, followed by the 13 non-resident pool, followed by the resident academic 14 admissions, followed by the resident pool, followed by the 15 minority students who had not already been admitted in the 16 previous. 17 Q Well, the last ring being the minority students 18 through the special admissions program? 19 A Yes. 20 Q Okay. And when you were describing these one 21 following another, one following the other, was that in 22 descending order of academic credentials? 23 A Yes. And controlled greatly, but the fact that 24 relevantly few Michigan applicants applied in those years 25 compared to all others, so there weren't very many. 94 1 Q Compared to non-Michigan? 2 A Non-residents. 3 Q Are you talking now about the entire applicant pool? 4 A Yes. 5 Q Not just minorities? 6 A No, the entire applicants. 7 Q Can you generally describe how the strength of the 8 academic credentials of the, of minority students who were 9 applied and enrolled through the special admissions program 10 compared to the academic credentials, generally of the 11 first two groups of students? 12 A You mean compared to the academic admissions and the 13 pool admissions? 14 Q Well, let's take, let's take the academic credential 15 admissions first, compared, generally speaking, to the 16 credentials of the minority students admitted through the 17 special admissions program. Are there some generalizations 18 you can make with respect to any differences in the 19 academic credentialing of those two groups? 20 A Well, in the absence of documents, this is old, an old 21 memory, but. 22 MR. PAYTON: Then, Your Honor, if he doesn't know, 23 he doesn't know, Your Honor. 24 THE COURT: If he doesn't know, he doesn't know, 25 but he didn't say he doesn't know. He said he's doing it 95 1 from memory. And I'm sure he'll let us know if he doesn't 2 know. 3 A Both the non-resident and resident academic admits and 4 enrollees would have LSAT scores in about the top four to 5 five percent nationally. And the grade point averages 6 which vary very dramatically from school to school were in 7 the 3.6 and 3.7 and up range. The minority students 8 admitted through special admissions, with that, would have 9 scores in the mid-thirties. 10 Q Are you talking about the absolute LSAT score or the 11 percentile? 12 A No, the absolute LSAT score. And the percentile I 13 wouldn't venture to guess. Now, I should add somewhere 14 along the way that the spread of these numbers is very much 15 different in the '90's than in the '70's because the LSAT 16 score scale was very wide and because a wide-score scale 17 was subject to abuse. It has since been narrowed 18 considerably. 19 Q The current scale being narrower or wider? 20 A Much narrower. 21 Q Well, I guess, can you, do you have a recollection as 22 to whether there were, whether there was any significant 23 differences in terms of the, the, the competitiveness, 24 academically, on the basis of academics, LSAT scores, 25 undergraduate grades between the pool, or between the 96 1 students admitted to academic credentials primarily and the 2 special admissions program? 3 A Yes, there is. 4 Q Can you describe those generally? 5 A A considerable. 6 Q A considerable difference? 7 A Between the special admissions, admits and the others. 8 Q With those admitted through academic credentials being 9 substantially higher? 10 A Yes. 11 Q Then those admitted through the special admissions 12 program? 13 A Yes. 14 Q How long was the -- during your tenure, you were there 15 from 1979 to the fall of 1990 -- was the special admissions 16 program in existence during your entire tenure? 17 A Yes. 18 Q When you came on board, you just continued to follow 19 what you understood to be something already in effect? 20 A Yes. And the special admissions program was 21 re-affirmed by the faculty, perhaps informally, but at 22 least a vote was taken immediately before I came, so there 23 was no, no doubt as I took over that that's what they 24 wanted. 25 Q Now, were there any, in terms of the students that 97 1 were to be admitted through the special admissions program, 2 did you have, did you have an understanding that there were 3 any guidelines as to what percentages or what proportions 4 of the class ought to be your goal to enroll as far as 5 underrepresented minorities in the admissions office? 6 A Ten to twelve percent was the target of those minority 7 groups which had been particularly specified by the 8 faculty. 9 Q And the bulletin that we looked at specified a number 10 of racial minorities, is that correct? 11 A Yes, the faculty named in the terms of the policy; 12 Blacks, Chicanos -- they did not define Chicanos for me, 13 Native Americans and so-called mainland Puerto Ricans, 14 Asian, Hispanic, it could be Cuban, and other minorities 15 were not included in special admissions. And I did not 16 have authority to admit them in special admissions. 17 Q Puerto Ricans, not from the U.S. mainland were not 18 part of the special admissions program? 19 A No. The idea was that there were good law schools in 20 Puerto Rico and that the mainland U.S. law schools were not 21 about to raid Puerto Rico for students. 22 Q How were -- was there some definition that you 23 understood that you were to apply with respect to define 24 who was a Chicano applicant? 25 A That was a vex question never settled. The faculty 98 1 thought it could say Mexican American and be done with it, 2 but Chicano students took exception. And so there was a 3 ten-year discussion who was who. 4 Q Now, you mentioned the number ten to twelve percent 5 as, as the goal or target? 6 A Yes. 7 Q For enrollment of underrepresented minorities from 8 these groups? 9 A Yes. 10 Q This is exclusion then of, say Asian Americans? 11 A Yes. 12 Q And other racial groups that we haven't identified 13 here as those belonging to the special admissions program? 14 A That's right. 15 Q Did you understand -- was that a sort of a fixed and a 16 rigid number, ten to twelve percent, or was it more 17 flexible than that? 18 A Well, it was flexible in the sense that if the 19 enrollment was three or four people one way or another, 20 there was no serious criticism, but it was a number which 21 had been negotiated or voted on and approved by the 22 faculty. 23 Q Okay. But it might be a little bit, might it, some 24 years, and we can look at the admissions data I think. I 25 don't think we need to take your time with that but we can, 99 1 if we looked at the admissions data in the enrollment 2 figures for the years that you were there, you're not 3 always going to find the same, exact same percentage or 4 number? 5 A No. 6 Q Of minority students enrolled in the special 7 admissions program, are we? 8 A No. It would vary, depending on day one. 9 Q And if you could enroll more than twelve percent, 10 would you do that? 11 A Oh, yes, if I could enroll more than twelve percent 12 through the first two programs especially. 13 Q Okay. 14 A That was what the faculty hoped would ultimately 15 prevail. 16 Q What, did you have an understanding as to why it was 17 that the goal was set at ten to twelve percent for 18 underrepresented minority students? 19 A It was raised from ten percent in the 1970's because 20 ten percent seemed inadequate for the faculty at that time. 21 It -- there was not -- during the time I was there any 22 serious decision taken to change the number because the 23 faculty's watching too carefully the academic performance 24 of the students who were admitted. 25 Q Was there a concern that if the number were increased 100 1 too much that you might have, there would be academic 2 difficulties? 3 MR. WASHINGTON: Your Honor, just, we'd object on 4 the foundation of this question. It seems to me he's 5 testifying from, at least double or triple hearsay. 6 THE COURT: Overruled. He was the person that 7 made that decision, and it's not necessarily for the truth 8 I suspect, it's just as to what his marching orders were. 9 MR. KOLBO: Do you have the question before you? 10 A No. 11 Q Well, let me see if I can remember it. Was there a 12 concern expressed -- you would obviously have 13 communications with faculty members about, on occasion, how 14 the admissions process worked, what kind of students we're 15 getting admitted? 16 A Yeah, constantly. No, only the dean and admissions 17 committee counted, yes. 18 Q And were there discussions about how one might, how 19 the law school might, how your office might increase the 20 enrollment of students from underrepresented minority 21 groups over and above the ten to twelve percent goal? 22 A Yes. 23 Q And was there a conclusion that that would be 24 difficult to do for various reasons? 25 A The basic reason was that the national pool was not 101 1 changing dramatically. There were certain faculty who 2 thought that if I did my job better, we would be more 3 successful. There was also a policy, or there were new 4 financial aid offers being developed at the time I was 5 leaving, which were intended to improve Michigan's 6 performance over competitors. 7 Q Do you have an understanding, putting aside the issue 8 of how many students were going to be enrolled through the 9 special admissions program; did you have an understanding 10 as the Admissions Officer as to why it was that the law 11 school wanted to have representation at some level of 12 certain numbers, whatever it might be of underrepresented 13 minority students? 14 A Yes. 15 Q What was your understanding? 16 A First and foremost the faculty found it inexcusable 17 and unconscionable that they found themselves in the early 18 '70's with no Black students. They felt, under 19 legislation, spoke to their commitment to minority 20 representation in the Bar, and minority lawyers being 21 available to minority communities, particularly when 22 encouraged to go back to minority communities and practice. 23 As the decade moved from '79 to '80, the 24 contributions of minority students to the classroom 25 experience changed from one that was rarely mentioned to 102 1 one that was a constant topic of conversation. 2 Q Did you consider yourself under a mandate to operate 3 the special admissions program? 4 A Yes. 5 Q It wasn't within your discretion to discontinue the 6 special admissions program? 7 A No. 8 Q Could you take a look, I think it's in the same book, 9 at Exhibit 53 and turn to page 53, 53, I guess it is? 10 A My book starts with 54. 11 Q Oh, I'm sorry. If you could simply turn to page 53? 12 A Got 53. I'm sorry. Yes. 13 Q Coincidentally, page 53, and Exhibit 53 at the very 14 bottom there. 15 MR. PAYTON: Hold on. Your Honor, I'm going to 16 object to any use of this exhibit at all, at all. Can I 17 just make my objection? 18 THE COURT: Yes. I thought you stipulated to these 19 exhibits. I'm sorry. 20 MR. PAYTON: No, no. We did not stipulate to the 21 admissibility of any of the exhibits. We have stipulated 22 to their authenticity. 23 THE COURT: Okay. 24 MR. PAYTON: And we reserved any other objection. 25 THE COURT: That's fine. 103 1 MR. PAYTON: This memorandum which was written 2 after Mr. Stillwagon, and was based only upon some 3 collection of documents then in the office, is simply 4 irrelevant to anything here, and it doesn't purport to be 5 complete. It's based only on the hearsay in the documents. 6 It's not been verified by anybody. I don't understand why 7 this is being used at all. If he has a question to ask 8 this witness, ask it, but don't ask the witness to try to 9 resurrect a document that's simply irrelevant. 10 MR. KOLBO: Your Honor, I think I can explain. 11 It's a lengthy document. I'm simply asking the witness to 12 refer to a faculty resolution that's quoted verbatim in 13 this otherwise narrative document, and ask him whether this 14 is the, is the faculty, one of the faculty resolutions 15 under which he was operating as the admissions director. 16 THE COURT: Does he have a follow-up question to 17 that? Is that why? 18 MR. KOLBO: I want, basically, to confirm that 19 this is, this is one of the resolutions that he was 20 operating under with respect to the operation of special 21 admissions program. 22 THE COURT: I'm not going to -- the document has 23 not been introduced, so it can't be used for purposes of 24 anything, and it wasn't in existence at the time he was 25 there. But all you want to do is to lay a foundation for 104 1 later? 2 MR. KOLBO: I think that's correct, Your Honor. 3 THE COURT: Then I will allow you to do that 4 rather than recalling him at a later time. But I'm not 5 ruling that it's admissible at this time. All I'm saying 6 is that he can lay a foundation for later, should the need 7 arise. 8 MR. KOLBO: Thank you, Your Honor. 9 Q Mr. Stillwagon, at the very bottom of page 53, the 10 very last two lines there's a date, September 7, 1978. And 11 then it starts and continues on to page 54. And my 12 question to you, as you read it, is whether this is one of 13 the faculty resolutions that guided you with respect to how 14 to operate the special admissions program during your 15 tenure. 16 THE COURT: You may take a minute to read it. 17 A Well, it's certainly familiar. Whether it's all of 18 the documentation I was using, I can't say. 19 Q But in any event, you were operating under, what you 20 understood to be faculty mandate with respect to the 21 special admissions program? 22 A Oh, yes. 23 Q Would you have, in your judgment -- as the Admissions 24 Director, would you have been able to admit and enroll an 25 underrepresented minority student population of ten to 105 1 twelve percent without the use of a special admissions 2 program during your tenure? 3 A Not without a change in the accompanying policies. 4 Q And that's a good point. Everything else staying 5 essentially the same, admissions standards otherwise 6 staying the same, had the special admissions program been 7 abandoned, you would not have been able to admit and enroll 8 the ten to twelve percent minority students? 9 A No. 10 Q We've seen that the reference to the special 11 admissions program was made in the law school announcement 12 looked at early on. 13 A Yes. 14 Q Did you have a sense as to whether it was well known 15 among the faculty as to whether or not there was such a 16 thing as a special admissions program for minority 17 students? 18 A Oh, I'm sure they all knew. 19 Q I'm sorry? 20 A They all knew. 21 Q Would you explain to minority applicants when they 22 applied, or when they were thinking about applying and 23 contacting your office, would you explain to them what the 24 special admissions program was? 25 A It would depend on the situation. We used law school 106 1 admissions counsel data files to send to all arguably 2 qualified minority students in the United States, a letter 3 from me, a bulletin, an application, a letter from the relevant 4 student organization followed by phone calls from 5 students and from faculty. They surely knew from the 6 effort we extended and the bulletin that there was a 7 special admissions program. 8 On the other hand, one did not go out of the way 9 to say, we want you to know that we're treating you 10 differently. Some students looking at the national data 11 would welcome it very much, and we had lots of letters 12 asking if we had a special admissions program. Other 13 students took offense and did not wish it to be mentioned. 14 Q Other minority students? 15 A Other minority students. 16 Q Took -- 17 A Took the cue -- 18 Q Took offense at being considered as part of a special 19 admissions program? 20 A Yes. 21 Q Did they explain why they took offense at that? 22 MR. PAYTON: Your Honor, why is this -- 23 MR. KOLBO: I'll withdraw the question, Your 24 Honor. 25 THE COURT: Very well. 107 1 Q If I could just show you then, have you take a look at 2 Exhibit 113 and ask you to show the witness the exhibit. 3 Mr. Stillwagon, during your tenure was there such an entity 4 or such a meeting called together from time to time called 5 the Law School Committee of Visiters? 6 A Yes, every year. 7 Q And what was -- can you just describe what it was? 8 A It was a group of distinguished alumni and a few, I 9 think increasing number of non-alumni, who came to the 10 school each year to take a look at the operations, to 11 attend classes, to receive reports from the dean and the 12 associate dean about what was going on in the law school. 13 And every year our admissions report was prepared first for 14 the committee visitors. 15 Q Did you play some role then in the Committee of 16 Visitors meetings each year? 17 A I attended, sometimes I presented the admissions 18 report, but usually the dean was there and I prepared the 19 written report as it related to admissions. 20 Q And if you could just thumb through yourself Exhibit 21 113 and tell me if you recognize that as an excerpt 22 concerning admissions statistics for the year 1990. 23 A Yes, although -- 24 THE COURT: Could you pull the microphone just a 25 little bit closer? There you go. Thanks. 108 1 A Remember this is a year in which I did not produce 2 these numbers. 3 Q Okay. Well, maybe you can perhaps turn to the 4 preceding exhibit, Exhibit 112, which is another Law School 5 Committee of Visitor's Report of 1989. This would be 6 during your tenure, is that right? 7 A Yes. 8 Q And do you recognize this as a document that you would 9 have prepared that compiled various admissions statistics? 10 A Yes. 11 Q For the -- would this be for the class enrolled in 12 1989? 13 A Yes. 14 MR. KOLBO: We would offer Exhibit 112, Your 15 Honor. 16 THE COURT: Any objection? 17 MR. PAYTON: Yes, I think it's simply irrelevant. 18 I'm going to object to all of this, but I think this is 19 completely irrelevant. It's about a time twelve years ago. 20 THE COURT: What's the relevance? 21 MR. PAYTON: It doesn't have anything to do with 22 this case. 23 THE COURT: What's the relevance? 24 MR. KOLBO: Well, Your Honor, I believe if we 25 would demonstrate that if this pattern continues in later 109 1 years after 1992, it's historical evidence of the same 2 practices and policies at the law school. 3 MR. PAYTON: We have the current policy. It's not 4 in dispute. They don't dispute that it's the one that 5 governs all decisions today. Now, if they want to draw 6 gross comparisons between this and any historical period, I 7 just think it's not relevant at all, not at all. 8 MR. KOLBO: Well, Your Honor, if what happened in 9 1990 can be shown to describe -- well, what's happening in 10 1992 and afterwards, it seems to me that's at least 11 probative and the Court can decide what weight to give it, 12 but it's probative. 13 MR. WASHINGTON: Your Honor, first of all we join 14 Mr. Payton's objection as to relevance, but just joining 15 Mr. Kolbo's last point, I think the critical question is, 16 have they linked it up. And at this point they haven't 17 linked it up at all. 18 THE COURT: I'll admit it, however without, with 19 taking the objections seriously as to both relevancy as 20 well as, there's got to be some link, so I'll accept it, 21 how much weight, if any weight will be given. 22 Q All I want to know, take your time on this, Mr. 23 Stillwagon, is if you could turn -- I'm not sure that the 24 pages are numbered inside here. There's a section, I think 25 it's page one, two, three, four, the fifth page into 110 1 Exhibit 112 there's -- the page is headed the "Admissions 2 Years of Means and Medians". Do you see that here? 3 A Yes. 4 THE COURT: There's a number on top. 5 MR. KOLBO: Of the page, Your Honor. 6 THE COURT: On top of each page. 7 MR. KOLBO: On 23, yes, page 23. 8 A I don't have the page number, but I have the 9 admissions year and the means. 10 Q Okay. Is this sort of a compilation of, as I take it, 11 admissions data with respect to means, GPA's, immediate 12 GPAs, for the class that enrolled in 1989 and then compared 13 to the class enrolled in 1988? 14 A Yes. 15 Q There's three categories identified at the top, one, 16 two and three. Do you see that? 17 A Yes. 18 Q Can you just tell me what those three columns stand 19 for? 20 A One, two and three are the special pieces of the 21 admissions process we discussed earlier, the academic, the 22 so-called pool and special admissions. 23 Q Is the data that's reflected here -- I'm not asking 24 you to crunch all the numbers here, but does this generally 25 confirm your testimony earlier that the academic 111 1 credentials of students admitted through this special 2 admissions category, at least is measured by, say mean, GPA 3 or, mean LSAT, or substantially lower than for the other 4 two applicants categories? 5 A Those admitted through special admissions, yes. 6 Q Yes. Did you, during the course of your -- I'm 7 finished with that particular document, Mr. Stillwagon. 8 During the course of your tenure as the Admission Officer, 9 did you ever have any conversations to ask Dean Bollinger 10 about the special admissions program? 11 A Dean Bollinger and I spoke very rarely. We had one 12 conversation about the prospects for minority admissions in 13 the near future, at which I expressed the view that if the 14 faculty should decide to increase the number of Black, 15 Chicano, Native Americans and Puerto Rican students, we 16 could do that without lowering the academic numbers to the 17 point where the students were at great risk, but I did not 18 think we could increase the number substantially just 19 because we were Michigan, and just because we were trying 20 harder. 21 Q Did you ever receive any instructions from people that 22 wanted to change anything with respect to the way the 23 special admissions program was operated? 24 A No. 25 Q Did you ever receive any criticism by Dean Bollinger 112 1 about the manner in which your office operated the special 2 admissions program? 3 A No. Although it was clear that he had greater faith 4 than I did that, that putting more money in the operation 5 producing dramatic result. 6 Q As of the time that you left -- 7 THE COURT: Put more money into the operation, 8 what do you mean? 9 A By providing full-ride scholarships for minority 10 students. 11 THE COURT: For minorities? 12 A For minorities, which many law schools do, and which 13 we were experimenting. 14 THE COURT: I see. 15 Q As of the time that you left the admissions office in 16 the fall of 1990, was there under any consideration any 17 plan to abolish or cut back the special admissions program 18 for minority students? 19 A No. 20 MR. KOLBO: I have no further questions, Your 21 Honor. 22 THE COURT: Very well. Are you going to be using 23 the overhead? If not, we'll turn the lights on. 24 MR. PAYTON: Turn the lights on. 25 MR. KOLBO: Your Honor, might I -- I did neglect 113 1 to offer Exhibit 53. If I might do that at this time. 2 THE COURT: Any objections? 3 MR. KOLBO: The law school book. 4 MR. PAYTON: From 1989. 5 MR. KOLBO: Yes. 6 MR. PAYTON: Yes. I object on the grounds that 7 it's just simply irrelevant. It's describing a system 8 that's simply not relevant to this case. 9 MR. WASHINGTON: And we join in that objection, 10 Your Honor. 11 THE COURT: Again, I'll accept it, however without 12 commenting or indicating in any manner that I will give it 13 any weight at all. 14 CROSS EXAMINATION 15 BY MR. PAYTON: 16 Q Mr. Stillwagon, you testified about the special 17 admissions program that you operated. 18 A Yes. 19 Q I believe you said it was a faculty policy? 20 A Yes. 21 Q Was it your understanding that policy in this area was 22 made by the faculty of the law school? 23 A Yes. 24 Q As of August, 1990, that's the time you were leaving, 25 you thought that Dean Bollinger was considering coming up 114 1 with a new written policy in admissions, didn't you? 2 A On? 3 Q On admissions? 4 A Not until fifteen minutes before I departed. 5 Q Well, let me just say -- you can give me the answer 6 whenever you learned it, but here's the question. Listen 7 to it. As of August, 1990, that's the date you ceased 8 having any responsibilities for admissions? 9 A Yes. 10 Q As of that date, you thought that Dean Bollinger was 11 considering coming up with a new written policy on 12 admissions, didn't you? 13 A No. 14 Q Do you remember being deposed in this case? 15 A Yes. 16 Q May I have his deposition? Will you go to page 48, 49 17 of your deposition. You do recall being deposed in this 18 case? Mr. Kolbo and I asked you questions under oath and 19 you gave answers. 20 A Right. 21 Q Are you on page 48? 22 A Yes. 23 Q Do you see a question at the bottom of the page? I'm 24 going to read the question and the answer. Question: "Was 25 there any consideration as of the time you were leaving -- 115 1 was there talk about changing or coming up with a new 2 written policy on admissions"? 3 A Excuse me. I don't see where you are. I'm on page -- 4 Q -- 48. 5 A Forty, oh, I see. I see it. 6 Q Do you see it? I'm going to read it again. Question: 7 "Was there any consideration as of the time you were 8 leaving? Was there talk about changing or coming up with a 9 new written policy on admissions? Answer: "On admissions 10 overall"? Question: "Admissions overall". Answer: 11 "Well, I think that was what Lee must have had in mind. We 12 never discussed it". Do you see that? 13 A Yes. 14 Q Were you asked that question and did you give that 15 answer? 16 A Yes. It doesn't seem to me inconsistent. 17 Q Well, you seemed to know something, though, didn't 18 you? 19 A Well, I did at the time I left. 20 Q Okay. At the time you left you knew? 21 A That day. 22 Q Something about there was going to be a new written 23 policy on admissions? 24 A That day. 25 Q That day. 116 1 A Yes. 2 Q As you left, you knew Dean Bollinger was considering a 3 new written policy on admissions, is that right? 4 A Written, no. I can't say that. 5 Q That's what this question said? 6 A Then I must have answered incorrectly. 7 Q Okay. So your answer at your deposition was 8 incorrect? 9 A To the extent that I knew that he was planning any new 10 written policy. 11 Q Okay. And when you were leaving -- this is August, 12 1990 again? 13 A Yes. 14 Q You thought that your leaving the Office of Admissions 15 was based on disagreements in policy regarding the office, 16 isn't that correct? 17 A Yes. 18 Q Disagreements with the dean? 19 A Yes. 20 Q Disagreements with the faculty? 21 A No, not that I knew of. That may have been true. 22 Q Now, there were also at this time and earlier 23 complaints from applicants to the law school regarding 24 offensive statements made by persons in the admissions 25 office towards them. Isn't that correct? 117 1 A I have never heard that. 2 Q You have never heard of any complaints about students, 3 applicants complaining about offensive statements made to 4 them by persons in the Admissions Office when you were the 5 director? 6 A Never. 7 Q Now, up until the time of your deposition a couple 8 years ago, you were unaware that there was a new written 9 policy regarding admissions, weren't you? 10 A Yes. Well, local gossip. 11 Q You knew something from local gossip? 12 A Something was up, sure. 13 Q You didn't have any direct knowledge? 14 A No. 15 Q Of a new written policy? 16 A No. 17 Q And you certainly understand that it is the faculty 18 prerogative to come up with new policies regarding 19 admissions, as well as other things? 20 A Sure. 21 Q And if you were the Director of Admissions, you would 22 implement that new policy, isn't that correct? 23 A That's correct. 24 MR. PAYTON: That's it. 25 THE COURT: Mr. Washington. 118 1 MR. WASHINGTON: Thank you, Your Honor. 2 CROSS EXAMINATION 3 BY MR. WASHINGTON: 4 Q Mr. Stillwagon, as I understand your testimony, even 5 in the 1980's, the category called, you called academic 6 admits, as I understand it, you didn't simply crunch the 7 numbers for those persons when you evaluated their academic 8 credentials, am I correct? 9 A That's correct. That was the starting point. 10 Q And you would look at a number of factors even then 11 strictly on an academic basis, is that correct? 12 A That's correct. 13 Q Now, Mr. Kolbo asked you some questions about 14 background, but he stopped back at a certain point. When 15 was your first connection with the University of Michigan Law 16 School? 17 A 1959. 18 Q You went there? 19 A Yes. 20 Q And how long were you there, sir? 21 A Well, off and on between 1959 and I believe 1965, 22 three times. 23 Q Okay. And when did you return to the University of 24 Michigan Law School? 25 A 1979. 119 1 Q And would it be fair to say, sir, that during the 2 1960's and up until the early 1970's, from what you know, 3 there was no explicit consideration given to the race of 4 any applicant? 5 A Oh, no, I did know that because I helped many 6 students, including minority students apply to the 7 University of Michigan. 8 Q I understand, but in terms of evaluating students, 9 would it be fair to say that there was no affirmative 10 action program during the 1960's? Or do you know? 11 A Oh, during the 1960's? 12 Q Yes. 13 A I get my dates right here. During the 1960's, I would 14 have no knowledge. 15 Q When you were there, though, would it be fair to say 16 that there were, essentially, no Black students at the 17 University of Michigan Law School? 18 A When I was enrolled? 19 Q Yes, sir. 20 A Essentially none. Amelia Kearse was there, Harry 21 Edwards was there. 22 Q Mr. Edwards who became DC Circuit Court of Appeals 23 Judge? 24 A Yes. 25 Q But other than the occasional person who became a 120 1 Federal Appeals Court Judge, there weren't any Black 2 students, right, nobody? 3 A Very rare. 4 Q And that continued until the nineteen, early 1970's, 5 did it not? 6 A Yes. 7 Q And that's what affirmative action began to change, is 8 the character from an all-white institution, to an 9 institution that, at least had a few Black people in it, 10 correct? 11 A Yes. 12 Q And is it your understanding that that change was made 13 possible because there was some attention paid to the race 14 of people who applied? 15 A Yes. 16 Q Now, sir, I want to just skip ahead here. You 17 mentioned that while you were Dean of Admissions Officer, 18 that you would receive material from the law school 19 admissions counsel on every minority applicant who scored 20 above a certain qualification score, am I correct? 21 A And who had made its way into the LSAT database. 22 Q Okay. But not necessarily somebody who had ever 23 thought about going to the University of Michigan? 24 A There were, on the LSAC application forms, that is the 25 forms that the students filled out before taking the test 121 1 or before submitting the transcripts for analysis, there 2 were in some years, but not all years, ways to indicate 3 that you were interested in the University of Michigan. 4 That would be indicated on reports. 5 Q Okay. 6 A From the central organization. We would have paid 7 more attention to those than others. 8 Q Okay. But as I understand your testimony you would 9 send out applications and invitations to apply to everybody 10 who you got from that database, whether or not they had 11 expressed any interest in the University of Michigan? 12 A Yes, as long as they seemed arguably qualified. 13 Q Okay. And would it be fair to say that even that kind 14 of recruitment policy did not result in a sufficient number 15 of admits in the, what you've called the academic criteria, 16 category to come anywhere close to that ten to twelve 17 percent target range that you said you had? 18 A That's right. 19 Q Because that pool was very small, wasn't it? 20 A Yes. 21 Q And those persons often went to some other law school, 22 am I correct? 23 A Yes. 24 Q Would it be fair to say then that during the time you 25 were Admission Officer, that without affirmative action, 122 1 meaning some kind of potential consideration of the race of 2 the applicant, that there would have been very few Black 3 law students at the University of Michigan at that time? 4 A That's right. 5 Q And would it be fair to say then that, and we 6 understand you do not know what the policy was after '92. 7 And as I understand it, there could be different ways of 8 considering race and different procedures and all of that, 9 but from your experience as an Admissions Officer, unless 10 you consider race as an explicit factor in considering 11 people who apply, you end up with virtually an all-white 12 school, am I correct? 13 A I'm sure that is still true. I don't have access to 14 the national data. 15 Q I understand. 16 A But I can't imagine it has changed. 17 Q Okay. Last question, or last area. You indicated 18 that you had a discussion with Dean Bollinger about, well, 19 could we increase the number of minority, all minority 20 students beyond the ten to twelve percent that you had 21 during your tenure. Do you recall that discussion? 22 A Yes. 23 Q And as I understood your answer, you told the dean 24 that there were sufficient qualified people, that if you 25 wanted to, you could increase that number without putting 123 1 anybody at risk as to whether they would graduate or not, 2 am I correct? 3 A Without putting anybody at greater risk than they were 4 already. 5 Q I understand. We all have risk, right? 6 A Yes, but there is a special consideration when you 7 turn to the admission of that part of the glass where the 8 predictors are a little discouraging. 9 Q Okay. But as I understand it, sir, your advice to the 10 dean at that point was that you could increase that number 11 without increasing, putting anybody at any increasing risk 12 than they already were? 13 A Yes, I was sure I could. 14 Q And you and he had a disagreement about whether you 15 could do that, based on the Michigan name or money or how 16 you go about it? 17 A No. We didn't have a disagreement about that. I 18 mean, this was a conversation which I instigated on that 19 topic and at that time and that conversation, he just took 20 the information. 21 MR. WASHINGTON: Okay. I have no other questions, 22 Your Honor. 23 THE COURT: Any questions? 24 MR. KOLBO: We have none, Your Honor. 25 THE COURT: Very well. You may step down. Thank 124 1 you very much. It's now 12:05. Do you want to reconvene 2 at 1:05? Is that good for everybody, enough time for lunch 3 for everybody? 1:05. We stand in recess. 4 (Whereupon a recess is had.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 125 1 - - - 2 (Court back in session.) 3 THE COURT: Next witness, 4 please. 5 MR. KOLBO: Your Honor, again just to 6 keep the Court apprised of our discussion of what we 7 had in mind today this afternoon subject to the 8 Court's approval is, we expect that most of the 9 afternoon would be taken up with Ms. Munzel. 10 And Mr. Payton and I have discussed 11 what we would like to do is regardless of when I 12 finish which would be sometime mid to late this 13 afternoon. 14 We would just agree to start tomorrow 15 with our last witness, which is Dr. Kinley Larntz. 16 THE COURT: That's fine, no problem. 17 I just assume not to have to inconvenience witnesses 18 for a half hour, 45 minutes or even an hour. 19 MR. KOLBO: Thank you, your Honor. 20 THE COURT: Even more it's 21 important. 22 MR. KOLBO: Our next witness, your 23 Honor, is Erica Munzel. 24 THE COURT: We're just waiting, the 25 Intervenors are not quite back yet. 126 1 (Discussion off the record.) 2 THE COURT: Okay, your next witness. 3 MR. KOLBO: Your Honor, Plaintiff 4 call Ms. Erica Munzel as our next witness. 5 THE COURT: Okay. 6 ERICA MUNZEL, 7 was thereupon called as a witness herein and, after 8 having been first duly sworn to tell the truth, the 9 whole truth and nothing but the truth, was examined 10 and testified as follows: 11 MR. PAYTON: Your Honor, just an 12 interjection, my partner Craig Goldblatt will be 13 defending in this phase. 14 THE COURT: On this one? 15 MR. PAYTON: Yes. 16 THE COURT: Great. 17 18 DIRECT EXAMINATION 19 BY MR. KOLBO: 20 Q Good afternoon, Ms. Munzel. 21 A Good afternoon. 22 Q Could you state your full name, please? 23 A My name is Erica Munzel. 24 Q And your address? 25 A My address is 1559 Long Meadow Trail, Ann Arbor, 127 1 Michigan. 2 Q Ms. Munzel, we met once before a couple of years ago 3 now? 4 A Yes. 5 Q My name is Kirk Kolbo and I'm one of the lawyers 6 representing the Plaintiff in this case. 7 A Yes. 8 Q You are, am I correct, the current director of 9 Admissions at the University Michigan Law School? 10 A That's correct, yes. 11 Q And you've held that position for how long? 12 A Approximately three years. 13 Q And you assumed that position, I think, was it in 14 May of 1998 as far as the official title? 15 A That's correct. 16 Q Before that I think you were acting director 17 starting about January of 1998? 18 A That's right. 19 Q And you replaced, as I understand it, Dennis Shields 20 as the Admissions director? 21 A That's right. 22 Q And you started in the office of Admissions sometime 23 in 1993? 24 A That's right. In August of 1993. 25 Q And have been there continuously ever since? 128 1 A Yes. 2 Q Before I kind of start at the beginning, I wanted to 3 ask you a couple of questions about the LSAT and how 4 that works. 5 I assume you're pretty familiar with 6 how that's scored, that is for the national 7 percentile or have some general familiarity with 8 what a score means? 9 A Yes, with the Law School Admissions test? 10 Q Yes. 11 THE COURT: Let me ask a question 12 first. How does one become a director of 13 Admissions, did you start as a professor, or is this 14 a career goal? 15 A That's a good question. I actually graduated from 16 the University of Michigan. I got a bachelor's 17 degree in 1978, and I worked for a couple of years 18 before returning to Ann Arbor where I got my law 19 degree. 20 So, I graduated from the 21 University of Michigan Law School in 1983. I then 22 practiced law in Chicago for about ten years. I 23 worked at a private law firm where I did litigation, 24 commercial litigation. 25 And then I worked in the Cook County 129 1 Public Guardian's Office. I represented children in 2 abuse and neglect cases there. And after about four 3 years in that position, I wanted to return to 4 Ann Arbor where my parents lived, because there were 5 some health issues in our family. 6 And so I was interested in returning 7 to Ann Arbor, and had always had a fondness for the 8 University of Michigan. And learned that there was 9 a position available in the Admissions Office. 10 So, I pursued that position and was 11 very fortunate to be the selected candidate by 12 Dean Shields, who was looking to hire his deputy in 13 the Admissions Office. 14 THE COURT: So you learned on the job 15 training? 16 A That's very much true. 17 THE COURT: Okay. 18 A I had a great teacher. 19 BY MR. KOLBO: 20 Q And is it fair to say, Ms. Munzel, that as a 21 director of Admissions--is that your title, by the 22 way? 23 A My title is assistant dean. 24 Q Director of Admissions, is that your title? 25 A My title is assistant dean and director of 130 1 Admissions. 2 Q And are you the most senior person within the office 3 of Admissions, as far as admission making decisions? 4 A Yes. 5 Q And, in fact, you've been the most senior person in 6 the Admissions Office since you became acting 7 director and then full director of Admissions? 8 A That's correct, yes. 9 Q Is it fair to say that you have made the vast 10 majority of admission decisions at the University of 11 Michigan Law School since you assumed the position 12 of acting director in 1998? 13 A That's correct, yes. 14 Q And I take it that was true, for example, with 15 respect to this class adjusted rule in the fall of 16 2000. You were the person who made the vast 17 majority of admission decisions for that class? 18 A Yes. 19 Q And my recollection, one of the things I learned in 20 this case is, that you're probably right in the 21 middle of the admissions cycle for the fall of 2001, 22 is that right? 23 A That's correct. 24 Q There's other things you could be doing right, is 25 that right? 131 1 A That's true. 2 Q Is there still a Faculty Admissions Committee? 3 A Yes. 4 Q And how active is the Faculty Admissions Committee 5 in the decision making process? 6 A The Faculty Admissions Committee, the members of 7 that committee varies a little bit from year to 8 year. And their involvement is to advise on 9 particular files that we bring to the Committee. 10 They're very involved in selecting 11 merit scholarship recipients. The Committee 12 actually also handles Financial Aide, it's the 13 Financial Aide and Admissions Committee. 14 So, sometimes there are financial 15 aide issues that comes to the Committee, sometimes 16 there's admission issues that comes to the 17 Committee. 18 Q Is it fair to say that the Faculty Admissions 19 Committee does not make a significant number of 20 decisions with respect to whether to admit or deny 21 students out of the entire class that's selected? 22 A I make the vast majority of the decisions with the 23 guidance of the Faculty Committee. 24 Q And there is a written admissions policy in effect 25 for the law school? 132 1 A Yes. 2 Q Wayne, could I ask you to show the witness Exhibit 4 3 or the book. 4 THE COURT: That's Exhibit 4. I have 5 my copy right here. 6 BY MR. KOLBO: 7 Q Do you have Exhibit 4 in the notebook there in front 8 of you? 9 A Yes. 10 Q Is Exhibit 4 a copy of the Law School's Admissions 11 Policy in effect today? Take whatever time you need 12 to look at it. And I think I might preface that by 13 suggesting the first page of Exhibit 4 are the 14 minutes of a resolution of the faculty approving 15 what has been attached to the same document, the 16 actual policy itself? 17 A Yes, that's correct. 18 Q And am I correct that this policy, Exhibit 4, we can 19 call it the admissions policy today. 20 A That's fine. 21 Q This policy has been in effect during the entire 22 time of your tenure within the Admissions Office, is 23 that true? 24 A Yes, that's true. 25 Q Has the policy changed in any respect since it was 133 1 adopted, at least, as far as you know? 2 A No, the policy has not changed. 3 Q As director of Admissions, assistant dean and 4 director of Admissions, do you consider yourself and 5 your Admissions staff to be obligated to carry out 6 the policy as it's written? 7 A Yes. 8 Q Do you consider that you have as the Admissions 9 director any discretion to disregard the policy and 10 to adopt your own policy that might be in some 11 respects inconsistent with the faculty admissions 12 policy? 13 A No. 14 Q And do you, as far as you know, do you make all of 15 your Admissions decisions on a year to year basis, 16 in accord with the manner in which the policy 17 direct? 18 A Yes, I do my very best to do that. 19 MR. KOLBO: Your Honor, we would 20 offer Exhibit 4 into evidence. 21 THE COURT: I assume there's no 22 objection. 23 MR. GOLDBLATT: None. 24 MR. WASHINGTON: No objection. 25 134 1 BY MR. KOLBO: 2 Q Ms. Munzel, now I would like to ask you about the 3 policy, and I'm going to start by asking you to turn 4 to page three, if you would, of the policy. 5 There's a reference, I think, on page 6 three to index scores, is that a term that's 7 familiar to you? 8 A Yes, it is. 9 Q And the policy goes into this in some detail, but I 10 want to just see if I understand it correctly. 11 The index score, a selected index 12 score which is the same thing as the index score, 13 correct? 14 A Yes. 15 Q Those terms are kind of used interchangeably. Am I 16 correct that an index score is a single number that 17 through a calculation of a formula, represents two 18 variables. 19 An applicant's cumulative 20 undergraduate grade point average, and the 21 applicant's LSAT score? 22 A Yes. The LSAT score that is used, is the average 23 LSAT score if the candidate took the test more than 24 once. 25 Q Okay. And through a formula the Law Service 135 1 Administration administers, they will calculate 2 whatever an applicant's index score is based on just 3 those two variables, correct? 4 A The Law Services make a recommendation about what 5 that formula would most appropriately be. And then 6 that is programmed into our computer data base. 7 And you should know that the GPA is, 8 the undergraduate GPA as calculated by the 9 Law Services. 10 Q And they make a recommendation about the formula, 11 the Law School is free to use it or not, correct? 12 A Correct. 13 Q Let me just ask you this, you may or may not know. 14 But am I correct that the roughly formula provides 15 that the applicant's LSAT score, or the average of 16 the applicant's LSAT score is approximately 17 two-thirds of the value of the selection index? 18 A I don't know the exact formula of the index. 19 Q To your knowledge, has the formula ever changed in 20 any significant fashion during the time that you 21 have been at the Admissions Office? 22 A I don't really know what the formula is. So it's 23 difficult for me to say for sure whether it's 24 changed. 25 Q You have never passed on any requests that the 136 1 formula be changed to Law Services, correct? 2 A No, I have not. 3 Q If I could ask you then to turn to page four of 4 Exhibit 4, and I'm looking now there's really only 5 one full paragraph on this page starting, "The 6 Committee draws the following conclusions from these 7 facts." 8 Do you see that paragraph there? 9 A Yes. 10 Q I just want to read the statement, first of all, in 11 the policy. "Bluntly, the higher one's index score, 12 the greater should be one's changes of being 13 admitted." 14 Is that, in fact, a generally true 15 statement of how the Admissions policy or process 16 works under your tenure? 17 A Yes. 18 Q The policy also states on page four that, "We expect 19 the vast majority of those students we admit to have 20 high index scores." 21 Is that also a generally true 22 statement of how the process in the Admissions 23 Office actually works? 24 That is, in the vast majority of 25 cases the admitted students have high index scores? 137 1 A Yes, it is. 2 Q In addition to the reference to index scores, the 3 policy also refers to a grid, combining the same two 4 factors that go into the selection index. I think 5 this was actually on page six of the policy. 6 Am I correct there's a reference 7 there to the grid that's attached to, I think, the 8 last page of the policy itself? I call it a grid, I 9 think it's been referred to that. 10 A Yes. I believe in about the middle of that 11 paragraph it says, "The result of the actual 12 decision making has been that the pattern of our 13 admissions decisions may be nicely visualized in 14 terms of a grid with LSAT scores along with one 15 axis, and undergraduate GPA along the other." 16 Q And it also goes on to state, again I'm on page six 17 here, after the reference to the figure that's 18 attached. "Most of our admitted students have had 19 LSAT scores and undergraduate grade point averages 20 that placed them in the upper right hand portion of 21 the grid. 22 Applicants located at the extreme 23 upper right hand corner of the grid where the 24 highest LSAT scores overlap with the highest 25 undergraduate grade point averages are very likely 138 1 to be admitted, although not all are offered 2 admission." 3 Is that, in fact, a true 4 characterization of the way admissions generally 5 works, the admissions process? 6 A Yes. 7 Q And then the policy continues to state, "The further 8 applicants are from the upper right corner, the less 9 likely they are to be offered admission." 10 Is that again an accurate 11 characterization of the way things actually work in 12 the admission process? 13 A Yes. 14 Q And then it goes on, "Thus we may think of the upper 15 right portion of the grid as indicating the 16 combinations of LSAT and undergraduate grade point 17 averages that characterize the overwhelming bulk of 18 student admitted." 19 Is that again a generally accurate 20 statement, with respect to how things actually turn 21 out in the admission process? 22 A Yes, it is. 23 Q The statements in the policy about the higher one is 24 up under grid, further up to the right one is in the 25 grid having a greater likelihood of admission, 139 1 that's kind of another way of saying, isn't it, that 2 the policy says earlier which is, bluntly, the 3 higher one's index score is, the higher one's chance 4 should be of being admitted, basically the same 5 thing? 6 A Yes. 7 Q Now, there is, I take it, although you've got an 8 admissions policy that you are mandated to operate 9 under. I assume that there is discretion that 10 you're able to exercise in your office, correct? 11 A Yes, there's a lot of discretion. 12 Q We talked about LSAT scores, we talked about grids 13 now. And I take it that you don't simply, and I 14 think I have learned this in the course of this 15 lawsuit, you don't simply take select index scores, 16 or LSATs or GPAs by themselves and rank them in 17 descending order, and then they pick automatically 18 in rank order of applicants for admission, do you? 19 A No, we absolutely do not do that. We read every 20 file, we look at the transcripts, we don't just look 21 at the GPA, we look at the transcripts. 22 We evaluate the strength of the 23 academic record. We read the personal statement to 24 see what this person is telling us about their own 25 history, and their own life and their own 140 1 achievements. 2 We read their resumes, information 3 about other activities they've been involved in. We 4 read their letters of recommendation, and we use all 5 of that information to assess the real strength and 6 real potential of the candidate, sort of no matter 7 what their LSAT and the GPA are. 8 And we are also always thinking about 9 what would this person add to the mix at the law 10 school. What would this person add to the class. 11 Q It's fair to say though, that although they're 12 certainly not the only factors, LSAT scores and 13 undergraduate grade point averages are very 14 important in the admissions process, true? 15 A Yes, they are very important. Assessing the quality 16 of their academic work and the person's potential to 17 excel in the study of law and at the practice of 18 law, are important parts of what we do. 19 Q If I can just digress a little bit perhaps, and make 20 it clear why I do this later on. But there's a 21 footnote two to the policy, you see that on page 22 seven? 23 A Yes. 24 Q And this is a footnote to the statement that we read 25 earlier, a text states, we may think of the upper 141 1 right portion of the grid as indicating combinations 2 of LSAT and grade point averages that characterized 3 the overwhelming bulk of students admitted. 4 And in the footnote drop down from 5 there it says, "The location of out of state 6 admittees as a group would, if plotted separately, 7 be higher and closer to the upper right corner, than 8 the location of all admittees since the group of 9 non-resident admittees is on the whole, somewhat 10 stronger on the plotted dimensions than the group of 11 resident admittees." 12 Is that footnote two, is that a 13 generally accurate statement about where resident 14 and non-resident admittees fall on the grid 15 generally speaking? 16 A I have not looked at residents and non-residents 17 separately on a grid to really be able to confirm 18 that. 19 Q Would it be a fair statement though, I assume you're 20 as knowledgeable as anyone about the general overall 21 academic credentials of your applicant pool, 22 correct? 23 A Yes. 24 Q Is it fair to say that on generally speaking, the 25 academic credential measured by LSAT scores and 142 1 grades are generally higher for your non-resident 2 admittees, then for your resident admittees? 3 A We have a lot more non-resident, non-Michigan 4 resident applicants to the law school then we have 5 resident applicants. So, the resident applicants is 6 sort of a smaller pool. 7 Q But my question isn't about the size of the pool, my 8 question is about the level of the academic 9 credentials. 10 Is it true that generally speaking, 11 the academic credential, at least as measured by 12 LSAT scores and grade point averages, are generally 13 higher for non-resident applicant admittees, then 14 they are for resident admittees? 15 A Resident applicants have LSAT scores and GPAs that 16 have the same sort of range as non-resident 17 applicants. So, there are some incredibly strong 18 Michigan residents who apply to the law school. 19 So, the range of their qualities, I 20 would say, is very similar, or the same as the 21 non-resident. But we have a higher volume of 22 non-resident applicants. 23 Q Well, is it not true then on a whole the academic 24 credentials of the non-resident admittees are 25 somewhat stronger than those of the resident 143 1 admittees? 2 A I think that would depend on how many resident and 3 non-residents you were looking at in a given point 4 in time. 5 Q Well, let's take all of them in one particular year. 6 All resident admittees compared to all non-resident 7 admittees, you generally expect to find that the 8 academic credentials of the non-resident admittees 9 are generally somewhat higher? 10 A It would depend on the number in that particular 11 class. Each year I have a conversation with 12 Dean Lehman and I ask him, does he have a particular 13 goal in mind in terms of how many residents we want 14 to have in the entering class. 15 And if he said to me we only want 16 five percent or ten percent of our students to be 17 Michigan residents, then I think their academic 18 qualification and their LSAT scores would be as high 19 or higher on the whole. You know, compared to the 20 non-resident admittees. 21 Q Well-- 22 A (Interposing) But he doesn't typically say he wants 23 five or ten percent, he typically wants closer to a 24 third. A quarter to a third of the class to be 25 Michigan residents. 144 1 So, because of that, I think 2 sometimes if you look at the whole, there would be 3 residents who are admitted who might have lower LSAT 4 scores and perhaps lower GPAs, then some of the 5 non-resident admittees. 6 Q And that's because of the desire to make sure that a 7 reasonable portion of the space in a class go to 8 residents of Michigan, correct? 9 A That's correct. And it also is because of the pool 10 of applicants that we have. 11 Q Do I understand that if the pool were smaller, that 12 is if the decision was to admit fewer residents from 13 Michigan, let's say, five percent as opposed to 30 14 percent, you would expect that the academic 15 credentials would be relatively closer between the 16 two groups? 17 A Yes, I think that's probably true. 18 Q Okay. 19 A It would depend on what we call our pre-admit, which 20 is the work that we do to make sure that people are 21 flying to the law school. So it would depend on the 22 strength of the pool that we had to select from. 23 Q And I think you kind of implied this, but let me 24 just ask it. I take it that residency is one of the 25 factors you will consider in making admission 145 1 decisions? 2 A Yes. 3 Q Whether an applicant is a resident of Michigan or a 4 non-resident? 5 A Yes. 6 Q And that's something that can make a difference in 7 some cases? 8 A That's right. 9 Q And in some cases it will make no difference? 10 A That's right. 11 Q And I think the policy itself speaks to, I used the 12 term earlier, I'm not sure that I can find it. But 13 it speaks to a policy directive of ensuring 14 that--this is on page two actually of the policy. 15 "A reasonable proportion of our 16 placements should go to Michigan residents, even if 17 some have qualifications lower than those of some 18 applicants from outside Michigan." 19 I was reading from page two of the 20 policy there. Do you see that there? 21 A Yes, I do. 22 Q And that's a true statement? 23 A Yes. 24 Q And are residents of the state of Michigan regarded 25 to have sort of a special claim on consideration for 146 1 admission to the law school? 2 A I don't know if I understand that question. 3 Q Well, then let me read from the policy, again on 4 page two, the very bottom. "The challenge is to 5 meet our goals while ensuring that all who enter can 6 succeed here in honoring the special claims of 7 Michigan residents to a Michigan Law School 8 education." 9 The policy contemplates that whatever 10 that means, residents of Michigan are recognized to 11 have some special claim, consideration of the 12 admission process, true? 13 A Yes. As you read the sentence, the challenge is to 14 meet our goals, while ensuring that all who enter 15 can succeed here and honoring special claims of 16 Michigan residents to a Michigan Law School 17 education. 18 Q And the policy speaks in terms of reasonable 19 proportion of residents, correct? 20 A Yes. 21 Q It does not give a target range? 22 A That's right. 23 Q Does it give a specific number? 24 A No. 25 Q And, in fact, I think you've alluded to this, you 147 1 had a conversation with the dean each year to 2 ascertain what that reasonable proportion is going to 3 be? 4 A That's right. 5 Q But it always turn out to be some number or some 6 range, correct? 7 A It's typically in my experience been a quarter to a 8 third of the class. 9 Q And so just to be clear on this, you make enough 10 offer of admissions so you can expect to actually 11 enroll, that is get a yield rate of a quarter to, 12 you said 30 percent? 13 A A quarter to a third. 14 Q Did I explain that correctly, is that your process? 15 Maybe I confused myself on that one. 16 The number of quarter to a third, 17 your objective or your mandate is to make enough 18 offers of admission based on your enjoinment to end 19 up with a yield, that is actual enrollment of 25 20 percent to a third Michigan residents, correct? 21 A Correct. 22 Q And just like I've learned this language a little 23 bit as I try to learn so many things in this case. 24 Yield means as I understand it, percentages of 25 students that actually enrolled following an offer 148 1 of admission, right? 2 A That's right. When we refer to yield, we are 3 talking about our success in--people that we admit 4 to actually enroll at our Michigan Law School. 5 Most of the people that are admit to 6 admitted to several other, you know, very tremendous 7 law schools and they're in a position to choose. 8 So, we have worked very hard to 9 provide them with information about the University 10 of Michigan, to have them talk to our students, to 11 our faculty, so that they can make a choice. 12 And, of course, we try to show them 13 why we think the University of Michigan is a great 14 place to get a legal education. 15 So, when we talk about yield, we are 16 talking about that percentage of people who accept 17 our offers. 18 Q And I think your point is well taken too. Your job 19 is not just making offers to admission, part of your 20 job is convincing applicants to come to Michigan, 21 because you are competing with other schools? You 22 have a lot of other schools competing with you? 23 A We compete with a lot of other schools, yes. 24 Q But that's part of your job? 25 A That is a big part of my job, yes. 149 1 Q And just to kind of sum up about residency and how 2 that's factored into the process. I gather then 3 there's a fair amount of flexibility built into each 4 year of determining how many Michigan residents you 5 expect to enroll as part of the process, correct? 6 A So you're asking? 7 Q There's a flexibility in that based on your 8 conversations with the dean? 9 A Yes. 10 Q Does it change from year to year, I think you said 11 it's generally been 25 percent to a third. 12 Has that changed in any significant 13 way since you've been director? 14 A In the three years that I have been the dean of 15 Admissions, that it has fallen within that range. A 16 quarter to a third. 17 Q Now, we talked earlier about index scores and I want 18 to turn back to that a little bit again, and ask you 19 to turn to page eight of the Admissions Policy. 20 The policy certainly contemplates 21 that you're going to make some offers of admission 22 to students who are not in the upper right hand 23 corner, the far upper right hand corner of the grid, 24 is that correct? 25 A That's correct. 150 1 Q And the policy itself actually, in general terms, 2 contemplates at least two scenarios, in which case 3 that's two general scenarios in which that's 4 approved, correct? 5 A That's correct. 6 Q And in reading from page eight again quoting from 7 the policy, "As we have noted, some students will 8 qualify for admission despite index scores that 9 place them relatively far from the upper right 10 corner of the grid. There are two principal types of 11 reasons for such admissions." 12 Am I correct, and I don't think that 13 I'm necessarily going to read verbatim from the 14 policy here. 15 But am I correct that the first of 16 those types of reasons generally is where you have 17 information in the file, in the applicant's file 18 which would lead you as the admissions decision 19 maker, to be somewhat skeptical about the predicted 20 value, say, at the end of the score? 21 A That's correct. We read the files and we make out 22 own judgment about this person's, this applicant's 23 potential to excel at the study of law and as a 24 lawyer. 25 So, we don't just listen to the index 151 1 score, we look beyond the LSAT score and the GPA. 2 Q And if you, for example, see that's there's 3 something in the file that suggest a mediocre LSAT 4 score, it doesn't seem to be a great predictor for 5 this student, because he or she is high achieving 6 student, you might give some lesser weight to the 7 LSAT score in that case? 8 A That's true, all though I don't give weight. I 9 don't use a formula and I don't view every file in 10 the same way. I really use my own judgment and my 11 own thinking to evaluate what I see in the file. 12 So, I read every file, I read 13 everything that the person tells us. The essays 14 that they submit and the recommendations that are 15 written on their behalf. To use my own judgment to 16 sort of interpret the numbers. 17 Q That's the first principal reason though, where you 18 might depart from what the policy calls for the 19 general policy, taking applicants from the upper 20 right hand grid. 21 That is where something leads you to 22 be skeptical about predicted value of the index 23 score, right? 24 A Where I can tell from the file where I have 25 confidence that this person is going to perform very 152 1 well in law school, then I might admit somebody that 2 has a lower LSAT score, or perhaps even a lower GPA 3 then some of the other candidates. 4 Q And then there's a second general policy, refers to 5 a second principal type of basis for granting 6 admission, even when index scores for that applicant 7 are relatively far from the upper right hand corner 8 of the grid. 9 And that second principal type of 10 reason has to do with achieving diversity, correct? 11 A Yes. Now, you're reading from page nine at the 12 bottom of the paragraph of the policy? 13 Q Yes. I didn't know I was reading from it. But, 14 yes. 15 A It says, "The second sort of justification for 16 admitting student with indices relatively far from 17 the upper right corner, is that this may help 18 achieve that diversity which has the potential to 19 enrich everyone's education, and thus make a law 20 school class stronger than the sum of its parts. 21 Q And you've read the policy, correct? 22 A Yes. 23 Q And among the different types of diversity that the 24 policy contemplates and values, am I correct that 25 there is a commitment to one particular type of 153 1 diversity, and that's to racial and ethnic 2 diversity? 3 A Yes. 4 Q And if you can turn to page twelve. That's, in 5 fact, what the policy says, isn't it? 6 A Yes. The first full paragraph on page twelve says, 7 "There is, however, a commitment to one particular 8 type of diversity that the school has long had and 9 which should continue. 10 This is a commitment to racial and 11 ethnic diversity with special reference to the 12 inclusion of students from groups which have been 13 historically discriminated against, like African 14 American, Hispanics and Native Americans, who 15 without this commitment might not be represented in 16 our student body in meaningful numbers. 17 These students are particularly 18 likely to have experiences and prospectives of 19 special importance to our mission." 20 Q That's a statement of the policy? 21 A Yes, I just read from the policy on page twelve. 22 MR. GOLDBLATT: If I could just put 23 on the record, I understand that the entire document 24 has been admitted into evidence. 25 I think that this calling of it is 154 1 out of context and is leading. So, long as the 2 entire document is in the record, that would be 3 available. 4 THE COURT: The entire document is in 5 the record, yes. 6 MR. KOLBO: And I'm not just trying 7 to read the policy to see what it says, I want to 8 draw a connection, I want to make sure that I 9 understand not just what the policy says, but the 10 way things actually work and that's how I've been 11 asking the questions and I want to continue along 12 that line. 13 BY MR. KOLBO: 14 Q Am I correct that you just read the policy with 15 respect to these commitment to diversity, racial 16 diversity or part of it here. 17 In making your admission decisions, 18 does the Admissions office, in fact, have a 19 commitment to ensuring racial and ethnic diversity 20 in the class? 21 A Yes, my job is to carry out this policy, and that's 22 what I do. I read the files as I have described, I 23 read the personal statements. I look to see what 24 this person is telling me they might offer. I read 25 the recommendations, their resumes, information that 155 1 they give us about their activities, their 2 experiences. 3 I look carefully at their academic 4 records. And I am constantly thinking about, sort 5 of constantly evaluating their potential to excel as 6 a law student. 7 And I'm constantly thinking about 8 what kind of contribution would this person make to 9 the intellectual life of the law school. 10 What would this person add to the 11 mix, is this going to be who would be engaged, who 12 would share their ideas with their fellow classmates 13 and with the faculty. 14 And we want to achieve a mix of 15 people with coming from a variety of backgrounds and 16 so forth. Including racial backgrounds that are 17 different. 18 Q And I think you answered a lot of questions, but I 19 want to make sure that one question in particular 20 was answered. 21 That is, you as the Admissions 22 officer have a commitment to one particular type of 23 diversity, and that is to racial and ethnic 24 diversity, correct? 25 A I carry this policy out and that's what the policy 156 1 instructs me to do, that's correct. 2 Q So the answer is yes to my question? 3 A I think I gave my answer. Did I miss the question? 4 Q Is it true that in the Admissions Office is there a 5 special reference to the inclusion of students from 6 groups which have been historically discriminated 7 against, like African Americans, Hispanics and 8 Native Americans, is that true, with respect to the way the 9 process actually operates? 10 A The way the process operates is when I read files, 11 one of the things that I'm paying attention to is 12 any information the candidate has given me about him 13 or herself. 14 Including his or her racial identity, 15 background and so forth, experience. And so that's 16 one of the things that I'm paying attention to as 17 I'm reading the file. 18 Q But my question is, are you committed in carrying 19 out the policy to ensuring that there is a special 20 reference to the inclusion of students from groups 21 which have been historically discriminated against, 22 like African Americans, Hispanics and Native 23 Americans, is the answer yes or no to that question? 24 A When I read files I'm paying attention to the racial 25 identity if the person has chosen to give that to 157 1 me. And that is one of the factors that I consider. 2 Q That is inclusion of students from these groups that 3 I just mentioned? 4 A Right. And other ethnicities. 5 Q Are Puerto Ricans included within the group of 6 historically discriminated against minorities who 7 receive consideration in the process? 8 A When I read files, I pay attention to whatever 9 ethnicity a person has told me about. If they tell 10 us that they are a member of a minority group, 11 that's one of the things that I'm paying attention 12 to. 13 Q Do you understand that it's your charge within the 14 Admissions Office to make enough offers of admission 15 to applicants from historically discriminated 16 against underrepresented minority groups, to get 17 meaningful numbers of those students in the class, 18 is that part of your charge? 19 A My goal is to make enough offers of admission in a 20 given season so that we can fill the class to the 21 level that Dean Lehman has set as a goal. 22 And to achieve a mix of people, 23 people from different backgrounds with different 24 experiences, coming from a variety of walks of life, 25 people who have different prospectives. 158 1 And I pay attention to the mix of 2 ethnicities that we're achieving as I go along with 3 the process. 4 Q Ms. Munzel, the policy, am I correct, the policy 5 calls for efforts to a commitment to enroll a 6 meaningful numbers of members of certain racial 7 groups, including African Americans, Hispanics and 8 Native Americans. 9 Do you, in fact, ensure that there 10 are efforts in the Admissions Office to enroll a 11 meaningful number of those groups? 12 A Yes. 13 Q The policy also speaks later on on page twelve to 14 enrollment of a--it speaks of enrollment of a 15 critical mass of minority students. You see that, I 16 think it's on the second full paragraph on page 17 twelve. 18 "By enrolling a critical mass of 19 minority students, we have ensured their ability to 20 make unique contributions to the character of the 21 Law School. 22 The policies embodied in this 23 document should ensure that the those contributions 24 continue in the future." 25 A Yes. 159 1 Q Do you understand that it's your mandate as 2 Admissions officer to make admission decisions such 3 that you can ensure that you can that the Law School 4 will enroll a critical mass of minority students? 5 A Yes. 6 Q Do you understand that the term critical mass to 7 mean the same thing as meaningful numbers? 8 A Yes. My understanding of critical mass is that we 9 want to have enough minority students in the law 10 school so that they're able to make contributions to 11 the life of the school, to the dialogue that's going 12 on. And if there are not enough, they could feel 13 completely isolated and unable to do that. 14 So, my understanding of critical mass 15 is that we need to have a meaningful representation 16 of minority students, so that they are able to make 17 the kind of contributions that we hope they can 18 make. 19 Q Is there anyone who is more responsible or 20 knowledegable about you, more knowledgeable than you 21 about how the Law School goes about the actual 22 process of ensuring that a critical mass, or 23 meaningful numbers of minority students are enrolled 24 each year? 25 A I turn to the faculty and to the dean to give me 160 1 feedback about the quality of the class that we 2 enroll. The feedback that I get from them is that 3 they're very pleased with the mix of students, with 4 the level of engagement in the classroom, and the 5 variety of experiences that people are drawing in 6 the discussions in the classroom. 7 Q But you're the one who is actually making the 8 decisions about how to go about enrolling students 9 such that you get a critical mass, or meaningful 10 numbers of minority students, correct? 11 A Yes, I make the Admissions decisions, that's right. 12 Q So, you may get feedback, but you're the one that's 13 actually implementing the policy? 14 A That's right. 15 Q And deciding how to go about obtaining and achieving 16 enrollment that constitutes a critical mass, 17 correct? 18 A Right. It's my job to carry out the policy. Review 19 the applications, make the offers of admission and 20 then recruit the people that we have admitted. 21 Q Now, you don't have a definition, do you, of the 22 term critical mass? 23 A I told you what my understanding of that term is. 24 There is not a specific number, or there's not any 25 kind of definite percentage or target that equal 161 1 critical mass. 2 Q You were deposed in this case? 3 A Yes. 4 Q Wayne, could you show the witness a copy of her 5 deposition. I'm going to be reading from page 102 6 of the transcript. 7 You have it in front of you? 8 A I'm getting to the page. 9 Q Have you found it? 10 A Yes. 11 Q You were represented by counsel obviously at this 12 deposition? 13 A Yes. 14 Q I just want to read a series of questions and 15 answers, and ask you if these are accurately given. 16 "Q. What is--how would you define what 17 critical mass is of minority students? 18 "A I don't know that I have a particular 19 definition for that. 20 "Q Well, it is part of the policy, is it 21 not, in implementing this policy, how do 22 you make decisions about what a critical 23 mass is? 24 "A I don't know that in my capacity I have 25 to make a decision about what a critical 162 1 mass is. 2 "Q And has there, as part of implementing 3 this policy which has been in effect 4 since 1992, has anyone within the 5 Admissions Office made a determination 6 about what constitutes a critical mass 7 of minority students? 8 "A Not that I'm aware of. 9 "Q Has that ever been the subject of a. 10 discussion, as far as you know? 11 "A Not that I'm aware of." 12 Did you give those answers to those 13 Questions? 14 A Yes. 15 Q Are those true answers to those questions? 16 A Yes. There is no particular definition in terms of 17 a number or a target. And what I said today is my 18 understanding of that concept. 19 Q Is it fair to say that there must be some minimum 20 number of minority students that must be in enrolled 21 in order to achieve critical mass, or meaningful 22 numbers, there must be a minimum, right? 23 A I think that the number of people that would 24 constitute critical mass, would vary depending on a 25 lot of other factors. So, I don't know that in the 163 1 abstract you can pull a number out and say that this 2 would be critical mass and this wouldn't. It would 3 depend on a lot of other factors. 4 Q There is a number, but you just don't know what it 5 might be? 6 A I don't know that there is a number. 7 Q Well, would one be enough in a class? 8 A I would have to talk to the faculty, I think it 9 would depend on what the culture was like. It's a 10 little hard for me to imagine that one minority 11 student would constitute critical mass. 12 Q And that's my point. There's some minimum, correct? 13 If there's some minimum, you don't know what it is? 14 A I don't think you can--I don't think you can pick a 15 number out in an abstract way. I think it would 16 depend on the interaction in the classroom, it would 17 depend on the students, it would depend on a lot of 18 other factors that are not known to me at this 19 point. 20 Q And then each year as you are going about deciding 21 how to assemble a critical mass, do you try to get 22 answers to those various questions you just 23 mentioned, so that you know how much is a critical 24 mass? 25 A I rely on feedback that I get from the faculty and 164 1 from the dean about their satisfaction and 2 excitement about the students that we have attracted 3 to the Law School. That we have admitted and 4 attracted to the Law School. 5 Q Well, have you received any feedback about what the 6 minimum number might be that constitutes either 7 meaningful number or critical mass? 8 A No. 9 Q So, you have not made any effort to change the 10 number, whatever it might be from year to year, as 11 you make these admission decisions, correct? 12 A I don't think about critical mass on a day-to-day 13 basis, it's not something that I'm focused on. I'm 14 focused on reading the files, evaluating the 15 candidate that we have in a given year, and making 16 those judgments on an individualized basis. 17 So, I'm not too focused on, gee, do I 18 have critical mass. It's not currently what I'm 19 thinking about. 20 Q Isn't that part of your job? 21 A My job is to carry out the policy and to make sure 22 that in the end we have achieved the goals of this 23 policy. 24 Q But you're not making efforts to ascertain what a 25 critical mass is for a particular year, who is 165 1 making that effort in the Law School? 2 A If I were not achieving the goals as set forth in 3 this policy, I am sure that the dean would let me 4 know that. 5 Q So, you might hear from faculty or the dean, that 6 whatever numbers were getting enrolled were 7 insufficient? 8 A Correct. 9 Q To constitute critical mass? 10 A I think that if they were dissatisfied with how I 11 was carrying this out, they would let me know. 12 Q And that has not happened in your tenure? 13 A Correct. 14 Q So, whatever it is that you're getting from year to 15 year, that at least constitutes critical mass, 16 correct? 17 A Based on the feedback that I've gotten about the 18 classes that I've admitted, I believe that we have 19 achieved critical mass. 20 Q But it could be something less than what you're 21 admitting, right? 22 A I feel that we have achieved it because of the 23 feedback that I've gotten. Nobody has had a 24 discussion with me to say, you could have less, you 25 could have had more, you should have had less or you 166 1 should have had more. 2 Q But I guess that's my point. It could be that 3 you're enrolling well more than what would be 4 considered by the faculty or others to be a critical 5 mass, right? 6 A I don't know if I can answer that. 7 Q You wouldn't know, would you, unless they were to 8 complain to you, about whether or not you were 9 enrolling too few to be a critical mass? 10 A Right. I would rely on getting feedback. 11 Q I'm not going to ask you to buy into these numbers, 12 but I want to see if you can follow my point. Let's say, 13 for example, that you are enrolling a class of 14 year to year basis of, say, ten to twelve percent, 15 or ten to 13 percent underrepresented minority 16 students, and you're getting no feedback from the 17 faculty on that because they think that the critical 18 mass is something around five percent or so. 19 You wouldn't hear anything, would 20 you, from the faculty as long as you were between 21 ten and 13 percent, correct? 22 MR. GOLDBLATT: Your Honor, if I 23 could object, I mean I don't understand this 24 question. Are we asking whether the faculty would 25 give her feedback of enrollment as it existed. I 167 1 just don't understand the question7 2 THE COURT: The issue is whether or 3 not the witness understands the question. Can you 4 repeat it? 5 MR. KOLBO: I can probably rephrase 6 it a little better. 7 BY MR. KOLBO: 8 Q If you are, in fact, enrolling more on a year to 9 year basis than what the faculty would actually 10 consider necessary to be a critical mass of 11 students, you're not going to hear about it, are 12 you? 13 If you enroll something less than 14 that, as long as there's more than what the faculty 15 contemplates as critical mass? 16 A I'm not sure, you have a lot of lesses and mores in 17 that question. I'm not sure. 18 THE COURT: Why don't you rephrase it 19 one more time. 20 BY MR. KOLBO: 21 Q All you know, Ms. Munzel, is that you're currently 22 enrolling a critical mass of minority students 23 because you're not hearing complaints from the 24 faculty, right? 25 A That's right. 168 1 Q You don't know, do you, how much less in terms of 2 how few or in terms of minority enrollment you could 3 make, that would still satisfy the faculty's concern 4 for minority admissions for critical mass, correct? 5 A The faculty has not said that to me, that's correct. 6 Q You just don't know how much lower enrollments might 7 actually be that would still constitute as far as 8 the faculty is concerned, the critical mass, true, 9 because you haven't heard anything like that? 10 A I guess what I can say is that I have not heard 11 negative feedback about the mix of people and the 12 makeup of our class. 13 Q Let me just ask a couple of more specifics. We 14 talked about one student, do you know one way or the 15 other whether minority enrollment, underrepresented 16 minority enrollment of five percent would be 17 sufficient to constitute critical mass at the 18 University of Michigan Law School? 19 A There is not a specific number or target or 20 percentage that is defined as critical mass. And I 21 think I have tried to explain that I think it would 22 depend on a lot of different circumstances. So I 23 don't think I can answer that question. 24 Q So, you can't rule it out though either, can you? 25 You can't rule out five percent perhaps as 169 1 constituting critical mass, can you? 2 A Not just throwing a number out. No, I can't. 3 Q You can't rule out ten percent, can you? 4 A I don't think I can--I don't think I can give any 5 percent that alone would constitute critical mass. 6 I think that it depends on a lot of other 7 circumstances and factors. 8 THE COURT: What are the other 9 factors and circumstances? 10 A I think that would be largely up to the faculty, in 11 terms of what the environment in the classroom was. 12 The discussion of critical mass talks about-- 13 THE COURT: (Interposing) So again 14 from the faculty you don't know what they are? 15 A Pardon me? 16 THE COURT: That's not within your 17 expertise you would get from the faculty to give you 18 the feedback of what those were? 19 A Yes. 20 THE COURT: Okay. 21 BY MR. KOLBO: 22 Q And they haven't given you feedback to do anything 23 to suggest to change what critical mass is at the 24 Law School, correct? 25 A Right, I have not gotten any negative feedback. I 170 1 have gotten positive feedback that they are pleased with the 2 mix of students. So I believe that I have 3 achieved what the policy sets out. 4 Q There was reference I think in Mr. Payton's opening 5 statement to a token of minority students. What 6 does a token represent of minority students? 7 A Unfortunately I didn't get to hear Mr. Payton's 8 opening statement, I wish I could have. But I think 9 the word token typically means that it's just a 10 small, too small. It's just a one person, or a very 11 small number of people. 12 So, I mean, I think, in this context 13 you're not able to contribute because it's just a 14 token. 15 Q So, critical mass is something more than a token, 16 true? 17 A Yes. 18 Q But you don't know how much more in terms of the 19 number of percentage or a range of students that 20 would be, correct? 21 A There's not a specific number that I can give you 22 that would equal critical mass. 23 Q Or a range of numbers? 24 A Correct. 25 Q Or a range of percentages of the class? 171 1 A Correct. 2 Q Does each racial or ethnic group have its own 3 critical mass, or is it just in reference to the 4 aggregate underrepresented minority population? 5 A I don't think of critical mass that specifically, I 6 don't think of it in terms of each specific group, 7 and I don't make decisions with this idea of 8 critical mass, you know, weighing on me all the 9 time. 10 I read the applications and look for 11 people that are going to contribute to the mix, 12 contribute to the dialogue. People who have 13 different experiences, people who come from 14 different racial backgrounds and I make those 15 selections. 16 When all is said and done and I look 17 to see how have we done, you know, in terms of who 18 we have admitted and whether they're coming to the 19 Law School, I believe that we have achieved critical 20 mass. You know, just consistent with the discussion 21 that we have just had, because of the feedback that 22 I get. 23 Q Do you know whether it's possible to enroll a 24 critical mass of minority students if you don't have 25 members of a particular group in that critical mass? 172 1 For example, can you have critical 2 mass of the law school if you don't have any members 3 from the Hispanic race? 4 A The policy suggest that we want to have a critical 5 mass of minority students, and it specifically 6 mentions several ethnic minorities who have 7 historically been discriminated against. 8 I would work hard to make sure that 9 those ethnic groups are represented. But, I don't 10 feel that there's sort of a certain number of each 11 group that I have to achieve. 12 Q So, you don't try to enroll a critical mass of 13 subgroups of different racial groups, correct? 14 A No, I think of critical mass a little bit more 15 generally than that. 16 Q Okay. Do you know what in the course of the last 17 couple of years, what percentage of underrepresented 18 minority students you have enrolled at the 19 Law School? 20 A I have not looked at those statistics recently. 21 I think in this year's entering class, my recollection 22 is that we had about I think it was 25, 26 percent 23 minority students. 24 Q Does that include Asian Americans? 25 A I believe it does. 173 1 Q Do you know what the population was, the percentage 2 was of African Americans, Hispanics, Native 3 Americans and Puerto Ricans? 4 A I would have to look at some statistics, because I 5 haven't memorized those numbers, I'm sorry. I'm not 6 even sure about the guess I just made about the 7 total minority enrollment. I would have to check 8 the numbers. 9 Q Whatever those number are though, you've come to 10 conclude that they constitute critical mass? 11 A Yes. 12 Q Meaningful numbers of minority students? 13 A Yes. Based on the feedback that I've gotten, that's 14 right. 15 Q And whether they could be something less it could 16 still be meaningful and critical, you just don't 17 know, correct? 18 A That's right. I would need to have information 19 feedback from the faculty to make that judgment. 20 Q I think we covered this earlier. But would you 21 agree that undergraduate grade point averages and 22 LSAT scores are generally very important factors in 23 the Admissions decision making process? 24 A Those are very important factors that we take into 25 consideration, absolutely. 174 1 Q Would you agree that the University of Michigan is a 2 highly selective school? 3 A We are fortunate to have an applicant pool from year 4 to year that is greater than the number of people 5 that we can admit. So that we are in a position to 6 be able to be selective within that pool. 7 Q And would you agree that it's pretty well known 8 among law school applicants and faculty, that the 9 Michigan Law School is a highly selective law 10 school, is that pretty well known as far as you 11 know? 12 A I think that it's fairly well-known that we have a 13 very strong reputation as one of the best law 14 schools in the country. And I think applicants 15 realize that, and then also realize that means that 16 we probably are selective in our admissions process. 17 Q And would you agree that two of the criteria, at 18 least two of the criteria at which the law school is 19 highly selective in making admission decisions, are 20 the undergraduate grade point averages and the LSAT 21 scores of applicants? 22 A Yes, the academic record which includes the 23 undergraduate GPA as well as private work that the 24 applicant may have done, and a person's performance 25 on the LSAT are important factors that we consider. 175 1 If we're assessing an applicants potential to excel 2 at the Law School. 3 Q And in the analysis that you do taking a look at 4 academic credential like the LSAT and the 5 undergraduate grade point averages, is it fair to 6 say that there is, first of all, there's sort of a 7 threshold that you look at. 8 You want to be certain that if the 9 credentials are established, at a minimum that an 10 applicant could succeed as a student at the 11 Law School? 12 A Yes. That we want to make sure that we don't offer 13 admission, we try to avoid admitting somebody who we 14 believe would have difficulty succeeding 15 academically. 16 Q That's kind of a minimum threshold, correct, because 17 you have a lot of applicants that meet that 18 threshold? 19 A That's right. We have a lot of people who would be 20 qualified and who could perform the work. 21 Q And certainly you don't admit every students who 22 meet that threshold? 23 A That's right. 24 Q So, being qualified for admission is not the same 25 thing as likely being granted admission? 176 1 A Right. There are many people who are qualified that 2 we are not able to offer admission to. 3 Q Would you agree with me that the index scores, the 4 combinations of undergraduate grade point averages 5 and LSAT scores underrepresented racial minority 6 groups, African Americans, Hispanics, Native 7 Americans, are generally at least somewhat lower 8 than those of other racial groups, is that a true 9 statement? 10 A In our applicant pool and it's my experience with 11 the various years that I've been doing this, so that 12 I have seen the statistics for our applicant pool. 13 I think it is true that if you look 14 at the whole applicant pool the average LSAT score 15 is lower for the minority groups you mentioned, then 16 for the average LSAT score of the Caucasian students 17 in our pool. 18 Q And lower than Asian American students as well 19 generally? 20 A I think generally Asian American students as a whole 21 in our pool have had an average LSAT score that's 22 comparable to the Caucasian students. 23 Q And I think you were just referencing LSAT scores. 24 Is that same generalization true with respect to 25 undergraduate grade point averages? 177 1 A I would have to look at the statistics. I think 2 that probably is true, I'm not sure that it's as 3 much of a noticeable difference. 4 Q We would see that in the Admissions statistics that 5 is maintained in the Law School data base, correct? 6 A Well, that data is in the data base. 7 Q We can compare the undergraduate grade point 8 averages of admitted members of certain minority 9 groups to admitted members of other racial groups 10 like Caucasians and Asian Americans? 11 A Yes, you can pull that data out of the data base. 12 Q Can I ask the witness to take a look at Exhibit 14, 13 please. 14 Can I ask you whether you recognize 15 Exhibit 14, a form of it at least? I think I can 16 represent what it is without any objection, but if 17 you can tell me it might help? 18 A I don't know if I have seen this particular document 19 before, but it appears to be a chart showing 20 information about the mean and median undergraduate 21 GPA. 22 And the second page appears to be the 23 mean and median LSAT score for students who enter 24 the Law School apparently in 1994 and 1995. It 25 doesn't actually say the University of Michigan on 178 1 it anywhere. 2 Q Well, I can represent it's a document that we 3 received from the University of Michigan. 4 Do you participate in putting 5 together admission data like this, or I should say 6 admission data like this that sorts of show mean and 7 median and GPA and LSAT scores for applicants and 8 admitted students? 9 A I don't believe I was involved in putting this 10 report together. 11 Q Every year there's a meeting with the Committee of 12 Visitors. Do you participate in those meetings? 13 A The Committee of Visitors happens once a year, and I 14 typically prepare it. Since I have been the Dean of 15 Admissions, I have prepared a report for the dean 16 which I believe he has included in the report to the 17 Committee of Visitors. 18 Q And do you include information like that which is 19 pertained here on Exhibit 14? 20 A I don't believe that I have given this kind of 21 information when I have done the report. 22 Q You were in the Admissions Office in 1995, correct? 23 A Yes. 24 Q Do you remember at that time the Admissions Office 25 reporting this kind of data? 179 1 A Yes. Dean Shields would have done a report to the 2 dean for inclusion with the Committee of Visitors 3 report. 4 Q And is it fair to say that, at least, what we have 5 in front of us here is just two years, I guess. 6 1995, the GPA data shows that there are generally 7 differences in the average GPAs of the different 8 racial groups with African Americans, Mexican 9 Americans, Puerto Rican Americans having somewhat 10 lower grade point averages than other racial groups 11 like Caucasians and Asian Americans, fair statement? 12 A Yes. Fair statement that GPAs of the various ethnic 13 groups vary a little bit. 14 Q And that they're lesser for those groups obviously 15 then Caucasians and Asian Americans, that's what the 16 document reflects, correct? 17 A Yes. 18 Q And I'm turning to the next page of the same 19 exhibit, this reports mean and median LSAT scores 20 for the same racial groups, correct? 21 A Yes. 22 Q And this kind of data kind of again confirms, at 23 least for this particular year I think statements 24 you made earlier, that LSAT scores of several of 25 these minority groups are generally lower than they 180 1 are for other groups like Caucasian 2 A Yes, in this particular group, yes. 3 Q And we have to look at other years and other 4 admission data to see how that holds up, is that 5 right? 6 A That's right. 7 Q Am I correct that it's your position, or the 8 Law School's position that if you could not as an 9 Admissions officer consider race as a factor of the 10 admission process, then you would be unable to 11 enroll a critical mass of minority students, is that 12 a true statement? 13 A That's true. 14 Q And that is if everything else stayed the same in 15 the process and just changing one thing which is 16 that race would no longer be a factor, you would be 17 unable to admit and enroll a critical mass of 18 minority students? 19 A If I were not allowed, if we were not allowed to 20 consider race as a factor in the admissions process, 21 I think there would be a devastating impact on the 22 number of minority students that we will be able to 23 enroll in the Law School. 24 Q And how much less would that be? 25 A I have no--I would not be able to--that would be a 181 1 guess I would have to make. I don't know. 2 Q It didn't sound like you were guessing when you said 3 devastating, or were you? 4 A No, I believe it would be a devastating impact. But 5 I don't think I can tell you what that number would 6 be. It would depend on a particular group you were 7 looking at. 8 Q Well, would a reduction in one percent be 9 devastating? A reduction from, say, you don't have 10 to assume these numbers, but let's just take them as 11 a hypothetical. 12 If you go from 14 and a half to 13 13 and a half percent, would that be devastating? 14 A I would imagine. I would anticipate that there 15 would be a much larger drop then half of a percent 16 if we were not allowed to consider race at all in 17 the admissions process. 18 Q And that's what I'm trying to find out. You know 19 more than anybody else about how admission decisions 20 are made, right, at the Law School? 21 A Uh-huh. 22 Q And I would like you to tell me, if you can, and 23 give me a range, it doesn't have to be an exact 24 number. But to the best of your knowledge based on 25 everything that you know about admissions, how much 182 1 less would it be to constitute a devastating loss in 2 minority enrollment? 3 A I believe if we were not allowed to consider race in 4 the admissions process, we would have only a few, 5 one, two, maybe ten minority students in the class. 6 And that's partly--I mean I'm considering here as I 7 say that what our pool of applicants is, and the 8 competition that we face for the students that we 9 admit. 10 Q And the numbers that you just gave me, those are 11 numbers assuming that everything else stays the same 12 in the admissions process, and you simply remove 13 race as a factor, correct? 14 A Correct. 15 Q Is it fair to say that the reason you would be 16 unable to enroll a critical mass and that you would 17 have this devastating loss, is because without 18 considering race in the admissions process, the 19 lower academic credentials of minority students that 20 would cause you to be unable to enroll that critical 21 mass? 22 A There are so few minority students in the applicant 23 pool, and there are minority students with 24 outstanding LSAT scores and academic credentials. 25 But the number of them is small and 183 1 there are a lot of law schools who are competing for 2 those same students. So, given all of those 3 factors, I think that's what I'm basing my 4 assessment on. 5 Q Well, the number of the pool of minority students 6 stays the-- 7 A (Interposing) In the pool you mean? 8 Q The number in the pool. That number is the same 9 whether you take race into account or not, is it 10 not? 11 A In our applicant pool. If you're giving me one 12 particular year, the number of candidates in our 13 pool would be the same, yes. 14 Q Okay. And so the size of the pool is going to 15 change if you take race out of the equation, 16 correct? 17 A Right. 18 Q But because the academic credentials of that pool 19 are lower than they are for other racial groups, 20 that's the reason why if you go into a race neutral 21 system, you're going to have this devastating 22 impact, correct? 23 A Well, the average LSAT score and the average GPA of 24 the minority student in the applicant pool may be 25 lower than that for the Caucasian. But the ranges I 184 1 think are very similar. 2 So, there are some minority 3 applicants in our pool who have outstanding records, 4 just as there are Caucasian students who have 5 outstanding records, but the number of them is very 6 small. 7 Q Okay. 8 THE COURT: You can have the critical 9 mass but for the competition, is that what you're 10 saying? 11 A No, I think-- 12 THE COURT: (Interposing) Your pool 13 if it wasn't for the competition that certain 14 minorities obviously accept positions at other 15 schools, that your pool is big enough, am I wrong? 16 Because of the competition it 17 decreases your pool because, you know, that the 18 qualified candidates are going to go somewhere else? 19 A Well, certainly we lose qualified candidates to other 20 schools, but I'm not sure that's the whole 21 picture. 22 The range of strengths that are 23 represented in minority candidates, I think, are 24 similar to the range of strengths in the Caucasian 25 candidates. But there are not very many in the 185 1 pool. 2 So, we admit, you know, a lot of 3 students, but they don't all come. And if we were 4 not allowed to consider race, for instance, with 5 African Americans, we would be admitting some 6 African Americans, but there would be--those same 7 African Americans would be so highly sought after by 8 other law schools. 9 I would like to think that we 10 persuade some of them to enroll at the University of 11 Michigan. But I think it would be a very, very 12 small number. 13 THE COURT: I understand. But 14 because of the competition? 15 A Well, partly because of competition, but also 16 because there are not very many. And if you look at 17 the entire range of, let's say, African Americans in 18 our candidate pool, their average LSAT score and 19 their average GPA as a whole, would be a little bit 20 lower than the average LSAT score and the average 21 GPA of the Caucasian candidates. 22 THE COURT: I'm sorry. 23 MR. KOLBO: Can we take a brief 24 break, your Honor? 25 THE COURT: Sure. We'll take our 186 1 afternoon break and be back in 15 minutes. 2 Reconvene at 2:45. 3 (Court in recess.) 4 (Court back in session.) 5 THE COURT: Back on the record. 6 Okay, you may proceed. 7 MR. KOLBO: Thank you, your Honor. 8 BY MR. KOLBO: 9 Q I just want to go back to a couple of things that we 10 were talking about before the break, and one of 11 these a little bit earlier. 12 Do you know, has there ever been an 13 occasion since you have been in the Admissions 14 Office, when the Admissions Office and the 15 Law school has enrolled fewer than ten percent 16 underrepresented minority students? 17 A I don't have the percentages memorized, so I can't 18 answer that question. 19 Q You have to look at the data to ascertain that? 20 A Yes. 21 Q You mentioned shortly before we broke that you 22 believe that there would be a devastating impact 23 with respect to minority enrollment, if race was 24 removed from the process, correct? 25 A Correct. 187 1 Q And everything else stayed the same. You testified, 2 I think, earlier today that there are a lot of other 3 factors that go into the admissions process, 4 correct? 5 A That's correct. 6 Q A lot of intangibles, a lot of soft variables, 7 correct? 8 A Correct. 9 Q Personal experiences? 10 A Yes. 11 Q References, recommendations? 12 A Right. 13 Q In addition to the various academic experiences that 14 someone might have had. The quality that you might 15 see demonstrated in a personal essay, or a diversity 16 statement I think you have as part of your file, 17 correct? 18 A Correct. 19 Q And all of those other factors, all of those other 20 intangibles, soft variables, those can be still be 21 considered, can they not, in a process which the 22 only thing that was removed was whether or not you 23 considered an applicant's race in the process? 24 A Correct. 25 Q And even leaving all of those other variables out 188 1 there and just taking out one in consideration of 2 race, your testimony is that there would be a 3 devastating loss in minority enrollments at the 4 Law School? 5 A Yes. 6 Q Is it fair to say that one reason that the 7 Law School uses race in the admissions process is to 8 obtain a critical mass of minority students, is due to 9 the fact there are somewhat lower academic 10 credentials for the underrepresented minority group 11 relative to the other groups, is that a fair 12 statement? 13 A I carry out the policy, I was not part of writing 14 the policy. So I'm not sure that I can answer that 15 question. 16 Q Well, you have concluded in your own mind that there 17 would be a devastating loss in minority enrollment, 18 correct? 19 A Correct. 20 Q If race was he moved? 21 A Yes. And that is based on my knowledge and 22 experience with our applicant pools. 23 Q And isn't it fair to say, Ms. Munzel, that one 24 reason that would be true, all other things being 25 equal, is because the academic credentials of 189 1 underrepresented minority students are somewhat 2 lower for those groups than they are for other 3 groups like Caucasians and Asian Americans? 4 A In our applicant pool the last couple of years when 5 I have been charged with the responsibility of 6 reading the files and making the decisions, I think 7 that's true. 8 That if you look at the African 9 Americans, for instance, and compare them to the 10 Caucasian, the average LSAT score and the average 11 undergraduate GPA are probably lower than those 12 figures would be for the Caucasians as a group in 13 our applicant pool. 14 Q And the fact that that's true is a reason why it is 15 that the Law School takes race into account in the 16 process, correct? 17 A I'm not sure I can answer that specific question. I 18 followed the policy which allows us to consider 19 race, because we want to have diversity in the 20 class. And so that's what I do. I am trying to 21 achieve diversity in a number of ways, including in 22 our racial backgrounds. 23 Q Well, let me ask it a little bit differently. If 24 you took race out of the process, couldn't consider 25 it, would the lower academic qualifications 190 1 generally speaking of underrepresented minority 2 students relative to others, would that make it more 3 difficult to enroll a critical mass of minority 4 students? 5 A Yes, given the pool of applicants that I have seen 6 in the last several years. 7 Q If I can show you then Exhibit 15, you have that in 8 front of you, Ms. Munzel? 9 A Yes. 10 Q Do you recognize this document? 11 A Yes. This appears to be a grid from 1995. 12 Q Is this a grid prepared by the Law School, or the 13 Admissions Office? 14 A Yes, this was prepared by the Admissions Office in 15 1995. 16 Q And as I understand it, I just kind want to 17 abbreviate this and tell me if I misunderstand or 18 understand what this exhibit is. 19 This represents commendations of LSAT 20 scores and undergraduate grade point averages for 21 applicants and admittees, admitted students? 22 A Yes. 23 Q Just briefly characterize along the top runs in an 24 ascending order left to right different LSAT scores? 25 A That's correct. 191 1 Q Starting with the first score there of 120, the 2 first cell combination 120 to 145. And all the way 3 to the right you will see 170 above? 4 A Yes. 5 Q And then along the vertical axis there are from 6 bottom to top, I guess, ascending orders of grade 7 point averages that are represented here? 8 A That's correct. 9 Q And each of the cells represents combinations of 10 undergraduate grade point averages and LSAT 11 combinations, correct? 12 A Correct. 13 Q And each of those cells would be a number at the 14 top. For example, you look at the cell on the first 15 page there, 3.50 and 3.74 for LSAT of 156 to 158, 16 there's a number at the top 96, you see that? 17 A Yes. 18 Q And below that to the left there's a number ten? 19 A Yes. 20 Q And to the right there's a number ten, there's a 21 number three? 22 A Correct. 23 Q And do I correctly understand that the 96 refers to 24 the number of applicants who fell into that 25 particular cell? 192 1 A That's correct. In that particular year there were 2 96 people in our applicant pool who had 156 to 158 3 LSAT, and a 3.74 to--I mean a 3.--it's hard to read. 4 Is that a 3? 5 Q I think it's a 3.50 or 3.74? 6 A Okay. 3.50 to a 3.74 in terms of the Law Services 7 calculated GPA. 8 Q Ten students admitted of 96 applications? 9 A That's correct. 10 Q And just to be clear, the number to the right is the 11 number that actually enrolled in the school? 12 A That's right. Out of the ten that we admitted, only 13 three of those actually enrolled. 14 Q And this first page is a summary of the information 15 for all applicants, correct? 16 A Correct. 17 Q And then the successive pages provides the same 18 information only it's broken down by different 19 racial groups, is that correct? 20 A That's correct. 21 Q So, we got a page, the next page for Native 22 Americans? 23 A Yes. 24 Q And then following that African Americans? 25 A Yes. 193 1 Q And following that Caucasian Americans? 2 A Yes. 3 Q And following that Mexican Americans? 4 A Yes. 5 Q And then other Hispanic Americans? 6 A Yes. 7 Q What, by the way, is the difference as far as the 8 Law School's categorization is concerned, I mean 9 students who are classified as Mexican Americans and 10 other Hispanic? 11 A And your question is, what's the differences to? 12 Q Is it literally a difference if you're Mexican 13 American you fall into that category, any other 14 Hispanic combination? 15 A Well, people when they send us their application 16 they choose whether or not they want to give us 17 information about their ethnicity, it's an optional 18 question. 19 And if they do, there are some 20 choices that are provided where they can mark a box 21 or they can give us different information then is 22 listed by boxes. 23 And one of the choices is Mexican 24 Americans and another choice is other Hispanic. So 25 a person would decide him or herself how she or he 194 1 would view herself or himself. 2 MR. KOLBO: I guess at this point, 3 your Honor, I would like to offer Exhibit 15. 4 THE COURT: Any objection, 5 Mr. Goldblatt? 6 MR. GOLDBLATT: No objection, your 7 Honor. Mr. Washington? 8 MR. WASHINGTON: None, your Honor. 9 MR. KOLBO: Before I forget further, 10 your Honor, I think I need to offer into evidence 11 Exhibit 14 which I spoke of earlier. 12 THE COURT: Mr. Goldblatt, any 13 objection? 14 MR. GOLDBLATT: No objection. 15 THE COURT: Mr. Washington? 16 MR. WASHINGTON: None, your Honor. 17 THE COURT: Very well, proceed. How 18 about when we introduce exhibits into evidence we 19 don't have to go back and forth. 20 If you have an objection, just let me 21 know and I'll wait a couple of seconds before I 22 accept it. And then you can just stand up and let 23 me know, so we don't have to go back and effort. 24 And save some time on the record too. 25 MR. WASHINGTON: Should you not catch 195 1 it in time, I'll be more than glad to listen to you. 2 BY MR. KOLBO: 3 Q Have you looked at Exhibit 15 before, Ms. Munzel? 4 A Yes. 5 Q And is it fair to say, I know you haven't spent a 6 lot of time with it this afternoon, if you want to 7 take more time to look it over. 8 But is it fair to say that the way 9 admission decisions are shown on here, that is the 10 decision to admit a particular cell compared to the 11 number of applicants in that particular cell, the 12 exhibit kind of confirms with the policy, suggests 13 the policy which is the higher one's index score it 14 is the greater one's likelihood of being admitted to 15 the Law School? 16 A Yes. This grid reflects the decisions that were 17 made in that particular year. And I think you're 18 right, that this grid shows--for instance, in you 19 look at that top cell and the very furthest right 20 hand corner, you can see that we admitted 144 out of 21 151 applicants in that particular--with those 22 particular LSAT scores and GPA. 23 And out of that group that we 24 admitted, only 14 of those enrolled at the 25 Law School. 196 1 Q Does the grid generally confirm as you look at it, 2 the further applicants are to the upper right 3 greater likelihood of being offered admission? 4 A Yes. I think the grid shows that at the end of this 5 year we admitted a higher percentage of the people 6 that are in that right corner of the grid, then we 7 did the people that are at the lower left hand 8 corner of the grid. 9 Q But this grid is pretty much consistent with the 10 example grid that was attached to Exhibit 4 of the 11 Law School policy, is that correct, in that regard? 12 A I would have to look closely, but generally, yes, I 13 think that's true. 14 Q Now, as I mentioned earlier that these grids are 15 broken down on different pages, we have different 16 racial groups mentioned, correct? 17 A Yes. 18 Q Would you agree that, at least for this particular 19 year, you can take a look at a page for African 20 Americans, I believe it's the third page of the 21 exhibit? 22 A Yes. 23 Q Take a look at it, let's take a look at 24 commendations. It says here, 3.25 to 3.49 and then 25 LSAT combinations ranging from 154 on up. We're 197 1 seeing four out of five offers made, correct? 2 A In the particular cell you mentioned, that's 3 correct, yes. 4 Q And the next one up, ten out of ten? 5 A Yes. 6 Q Three out of three? 7 A Yes. 8 Q Four out of four? 9 A Yes. 10 Q One out of one? 11 A Yes. 12 Q Two out of two? 13 A Yes. 14 Q And if you can turn to the next page. You have 15 the same grid, correct, the same combination? 16 A Yes. 17 Q And this case for Caucasian students? 18 A Yes. 19 Q And again taking the same cell combination, 3.25 and 20 3.49 starting at 154 LSAT? 21 A Yes. 22 Q We have 21 applications and no offers? 23 A Correct. 24 Q 51 applications and one offer? 25 A Yes. 198 1 Q 61 applications and one offer? 2 A Yes. 3 Q 126 applications and five offers? 4 A Yes. 5 Q 91 applications and eleven offers? 6 A Correct. 7 Q And then we have the two furthest to the right, 78 8 applications and 38 offers, and 74 applications and 9 55 applications? 10 A Well, 74 applications and 55 offers. 11 Q I'm sorry, 55 offers, correct. Is it fair to say 12 that these combinations, this sort of analysis that 13 we just looked at, these different combinations of 14 cells, is there sort of one example to demonstrate 15 the way that race is taken into account in the 16 admission process? 17 A These show you the results of a particular 18 application season, and the decisions that were made 19 that particular year. 20 Q Do they reflect at least to some extent, the way in 21 which race is taken into account in the admission 22 process? 23 A I think they reflect the number of people in this 24 particular year that were in the different ethnic 25 groups. And you can see from where they show up on 199 1 this grid, you know, what their average LSAT scores 2 and GPAs were. 3 So, it gives you a sense, I think, of 4 what I was talking about before, that the number of, 5 for instance, African Americans in the pool, in our 6 applicant pool, is a lot smaller than the number of 7 Caucasian Americans. 8 Q Does it appear also to say that in looking at those 9 combinations, I know there's others, but looking at 10 those combinations, one would conclude that there 11 was a higher portion of minority students admitted 12 from these cells, then for the corresponding 13 Caucasian applicants in those cells? 14 A That's true. 15 Q And is that some reflection of the fact that race is 16 taken into account in the admissions process? 17 A Right. I think you're right. This result shows you 18 that we took race into account. 19 Q And it says something, at least, about the extent to 20 which race is taken into account, correct, some 21 characterization of that? 22 A This grid shows you the results of this particular 23 year, yes. 24 Q And it illustrates, at least, in those combinations 25 the extent, at least in those combinations, to which 200 1 race was taken into account in the process, correct? 2 A Well, I think you have to look at the files, look at 3 the individual files to really be able to answer the 4 question that you just posed. Because this just 5 gives you the LSAT score and the GPA, it doesn't 6 tell you anything else about these candidates, what 7 is their ethnicity. 8 But it doesn't tell you anything else 9 about the strength of their academic record, the 10 depth of their experience. You know, the ability 11 that they showed in their application to write well 12 and think well and what the recommenders said. 13 That's not reflected here at all. 14 Q Sure. For example, with respect to all of the 15 African American applicants who were offered 16 admission, if one were to look at those files one 17 could probably find reasons to offer them admission 18 that had nothing to do with their race, correct? 19 A You have to look at the files. I mean I can't 20 really answer in abstract, you would have to look at 21 those files. 22 Q Finally with respect to LSAT scores, am I correct 23 that the scale on which the LSAT is currently graded 24 is for 120 to 180? 25 A That's correct. 201 1 Q Is 120 the lowest score you can obtain on an LSAT? 2 A Yes. 3 Q Has that been the case for some years now? 4 A Yes. 5 Q Has that been true in 1997, for example? 6 A Yes. 7 Q 180 is the highest score that you can get? 8 A That's right. 9 Q 120 represents actually simply sign your name, you 10 get a 120, right? 11 A No, I don't know about that. 12 Q Well, it represents the lowest natural percentile 13 that you can get, correct? 14 A I think that's correct. 15 Q Wayne, could you put up Exhibit 180. Ms. Munzel, 16 you weren't here for opening statements, Mr. Payton 17 used this graphic. It doesn't seem to be showing up 18 very well right now. But Mr. Payton used this 19 graphic in the course of his opening statement, and 20 if we can get it focused. 21 My understanding is that it's sort of 22 scattered dots shows in it particular graph admitted 23 students who are underrepresented minority 24 applicants for the year 1997, with each one of those 25 dots representing a student who was admitted in a 202 1 particular combination of LSAT scores and grade 2 point. 3 LSAT scores run up the top and grade 4 point average runs across the horizontal axis there, 5 do you sow that? 6 A It's difficult for me to read this. I mean to see 7 this very clearly from here. 8 THE COURT: You have one in front of you 9 also. 10 A What number is it? 11 BY MR. KOLBO: 12 Q I'm sorry, 180. 13 A This one only goes to 18. Okay. I have in front of 14 me something that says admitted majority applicants. 15 Q I think this was admitted underrepresented minority 16 applicants, and that's 180 or 181? 17 THE COURT: That's 181. 18 A Yes, this looks like 181, it says admitted 19 underrepresented minority applicants, 1997. 20 BY MR. KOLBO: 21 Q Okay. Did you have anything to do with preparing 22 this particular exhibit? 23 A No. 24 Q Have you seen it before now? 25 A Yes 203 1 Q When did you see it? 2 A In preparation for testimony. 3 Q You agree with me that the LSAT axis starts down at 4 zero, right, in the corner, zero axis? 5 A Yes, the LSAT score runs on the side of the page. 6 Q The vertical? 7 A Vertical, that's right. 8 Q And it starts with zero, right? 9 A Right. It says zero down at the bottom. 10 Q There's 20 and then there's 40, 60, 80, 120, 140, 11 all the way up, do you sow that? 12 A Yes. 13 Q Now, it's not possible to score below 120, correct, 14 on the LSAT? 15 A Correct. 16 Q So, there's no point really in showing if you're 17 going to graph LSAT scores, there's no point in 18 showing that they're a value below 120? 19 A You can't score lower than 120. 20 Q And you happen to know from your experience, what 21 approximately, what the 50 percentile is or 22 something in that range for the LSAT scores? 23 A I would have to check, I don't have that on the top 24 of my head, sorry. 25 Q Could you turn to 117, Ms. Munzel. 204 1 A Okay, 117. 2 Q You have 117 in front of you? 3 A Yes. 4 Q I can represent to you I think without objection, 5 this is a table showing LSAT percentile table of 6 June 1995 to February 1998 from the Law School 7 Admissions Council. 8 Do you recognize, does this look 9 generally familiar in terms of the scale scores and 10 percentiles? 11 A Yes. 12 Q So, 180, for example, you held that to be a very 13 high score without looking, correct? 14 A Yes, I do. 15 Q That's 99.9 percent? 16 A Yes. 17 Q A 169 is the 97.5 percentile? 18 A Correct. 19 Q And to get to the 50th percentile one goes to about 20 it, it looks like between 150 and 151, correct? 21 A Right. 22 Q And, indeed, a 120 would be zero percentile because 23 no one can score lower than that, correct? 24 A Correct. 25 Q You can go back then looking at the preceding 205 1 exhibit. You can take that back. Just so we can 2 see a little more of it. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 206 1 Q Just so we can read this correctly, Dean Munzel, isn't it 2 true that the value that's represented by 160, for example, 3 that's at the 84 percentile approximately? 4 A I just closed that other document. 5 Q We talked about when you're taking a look at tables you 6 established that the 50th percentile was at around 150 or 151. 7 A That's right. 8 Q That would be way up here on this chart, right between 9 140 and 160 someplace? 10 A Right. 11 Q So 50 percent of the value on the LSAT score in terms of 12 percentiles are actually above this line here between 150 and 13 180; correct? 14 A In the national pool, that's right. 15 Q Wouldn't it be fair to say that this scattered plot chart 16 on the LSAT axis is about 140 or 150 instead zero, these 17 scattered plots look a lot different than they do here. 18 A They would probably look the same except they would be 19 bigger on the page. 20 Q Wouldn't they be scattered a lot more on the page? 21 A I guess if you blew it up more. 22 Q No, if we only had values going let's say 140 to 180 the 23 values would be much spread out; would they not? 24 A I'm not sure of what you're asking of me. 25 Q Aren't 50 percent of the values for scoring an SLAT 207 1 represent if I'm right here and above, that's 50 percentile 2 right here; correct, because we established that 150 on the 3 LSAT covers 50 percent of all scores on is that test? 4 A Right. 5 Q On this particular graph if -- it's compressed into the 6 very top portion of the demonstrative exhibit; correct? 7 A That the top values on this chart as you're showing are 8 140, 160 and 180. 9 Q Okay. You said you had nothing to do in terms of 10 preparing this? 11 A No, I did not prepare this. 12 Q I just have few more questions, Ms. Munzel. Is there any 13 current plan to change the manner in which the law school uses 14 race as a factor in the admissions process? 15 A No, not that I'm aware of. 16 Q Is there any point in time at which this plan stopped 17 using race in the admission process? 18 A Not that I'm aware of. 19 Q The class that's going to be admitted next fall that 20 you're in the midst of right now in making admissions 21 decisions, you're using race in the same manner in making 22 admissions decisions as you have for the past several years; 23 correct? 24 A That's correct. 25 MR. KOLBO: I have nothing further, Your Honor. 208 1 THE COURT: Thank you. Mr. Goldblatt? 2 MR. GOLDBLATT: Your Honor, if we could just have a 3 few minutes to regroup? 4 THE COURT: Go on. I'm not going to go off the 5 bench. Take your time. Otherwise it would be more than five 6 minutes. 7 CROSS-EXAMINATION 8 BY MR. GOLDBLATT: 9 Q Dean Munzel, you mentioned in response to questions that 10 Mr. Kolbo asked that you -- your job was to carry out the 1992 11 faculty admissions policy? 12 A That is correct. 13 Q That is Exhibit 4. 14 A I think I need another book. 15 Q As I understand the policy do you understand that policy 16 to be for the implementation of a special admissions system 17 with respect to minority applicants? 18 A No. 19 Q In the time have you been in the admissions office have 20 you carried out a special admissions system as it relates to 21 the admission of minority applicants? 22 A No, I have not. 23 Q Have you ever heard the term? 24 A I heard the term. I've heard it in terms of other law 25 schools and undergraduate schools. I've heard it very 209 1 generally in terms of special, sort of an admissions program 2 but it's nothing I've ever done at the University of Michigan. 3 Q Mr. Kolbo also asked you about a series of grids that was 4 Exhibit 15. Have you ever used grids like that as tools to 5 help you make admissions decisions? 6 A No, the grids show us what the results are, but we don't 7 use them as part of the decision-making process. 8 Q As the Director of Admissions do you have -- are there 9 others in your office who are involved in making admission 10 decisions? 11 A Yes. We have several admissions counselors and associate 12 -- I'm sorry, assistant directors of admissions who also read 13 applications. 14 Q Who has been responsible for training those people as to 15 how they should go about making admissions decisions since the 16 time you've been the assistant dean and director of admissions? 17 A I have. 18 Q Have you provided them with any materials to guide their 19 discretion to tell them what to do as they review files and 20 make admissions decisions? 21 A I have given them a copy of the Admissions Policy that 22 you have here as Tab Number 4. 23 Q Have you ever given them copies of the grids Exhibit 15 24 that Mr. Kolbo was asking you about? 25 A No. 210 1 Q Why not? 2 A Because it's not part of how we make decisions. 3 Q Dean Munzel, I'd like turn to the implementation the way 4 you implement the Faculty Admissions policy which is Exhibit 4. 5 Mr. Kolbo asked you a number of questions about the index, 6 score? 7 A Yes. 8 Q If you could just describe for the Court what the index 9 score is? 10 A The Index score is arrived at through a formula that 11 combines the average LSAT score of the person and the 12 undergraduate GPA as calculated by Law Services and that's what 13 the index is. 14 Q And as you review a file how important a role does the 15 index score play as you're reviewing that file? 16 A It really doesn't play any role at all while we're 17 reviewing the file. The index score isn't even reflected in the 18 file in any place. When we're reviewing a file we actually are 19 reading that file and looking at the academic transcript. We 20 are not just relying on the GPA. We're looking at the history 21 that the person has had with the LSAT. Many people take it 22 more than once. We're looking at all of those scores, and 23 we're making our own judgment about -- sort of what those 24 numerical factors mean for that particular applicant. And we, 25 of course, looking at a lot of other information in the file, 211 1 too. 2 Q Have you ever made a decision that was based only on the 3 index score? 4 A No, I have not. 5 Q As you understand it does the policy require you to look 6 beyond the index do make decisions? 7 A That's right. Even for candidates who have very high 8 LSAT scores and very strong academic records, we still read the 9 file. We want to be sure we believe that the person is going 10 to excel at the law school. It's not just a number. I've 11 never admitted anybody just because of their index score, nor 12 have I ever denied anybody just because of low LSAT score or 13 low index score. I mean I read all the files and make my own 14 judgment. 15 Q If you could just help us understand what information the 16 index score does provide. You said it reflects that GPA as 17 calculated by Law Services? 18 A Yes. 19 Q And what does, as you understand it, Law Services do to 20 calculate the GPA? 21 A What Law Services does, it serves the purpose of putting 22 all the GPA's from all of the hundreds of graduate institutions 23 that applicants have attended. It puts their GPA's all on the 24 same scale. It doesn't do anything to calculate for the 25 strength of the curriculum that the person selected, or the 212 1 strength of the school that the person attended. It simply 2 takes schools that may have a GPA that's on a five point scale, 3 it puts that onto a four point scale. Or if the school has a 4 three point scale, it puts it onto a four point scale. That's 5 what Law Services does when they calculate the GPA. 6 Q So if there were two applicants one of whom went to a 7 rigorous and competitive undergraduate institution where they 8 chose very demanding courses, And other attended a much less 9 rigorous institution and chose relatively easier courses but 10 ended up getting the same grades would their GPA as shown in 11 the index score reported from Law Services be the same or 12 different? 13 A Yes. Their GPA as reported by Law Services and 14 as used to calculate the index would be the same. 15 But, of course, we would view -- because we look at 16 more than just the GPA, we're looking at the other 17 factors that you just mentioned, we would look beyond 18 that and take those other things into consideration. 19 Q How is it that you go about looking at those other 20 things? You mentioned the types of considerations you look at, 21 but how do you consider those? 22 A We look at the transcript itself. We look at every 23 single semester to see what did this person take, how did they 24 perform in those courses. Did they take a lot of pass-fail 25 courses where it might have been easier to achieve a high grade 213 1 in the remaining courses they took. We look at information on 2 the -- what's called the LSDAS report. That's the actual 3 report that Law Services send us. And that has a lot of 4 information about the school itself, the undergraduate 5 institution that the candidate attended, and the other students 6 at that school that are also going through this application 7 process. We have information about them that we can use to 8 help us access the strength of the school that the applicants 9 attended. 10 THE COURT: Does it rate schools numerically, or 11 does it tell you about the school verbally? 12 THE WITNESS: It does not rate schools numerically 13 at all. It tells us about the other students at that school 14 who has taken the LSAT. It will tell us what their average 15 LSAT score is. So for the students at a particular 16 institution we know what their average LSAT is. And it gives 17 a distribution of the grades that that group of people have 18 taken. It just shows us about the people -- 19 THE COURT: It's statistical. It gives you 20 statistical information about the students that have gone 21 through the process. 22 THE WITNESS: That's right, at that particular 23 institution. 24 MR. GOLDBLATT: Your Honor, one of the things that we 25 thought would be helpful to do is during this examination of 214 1 Dean Munzel is to go through a file including this report to 2 give the Court a full sense of how decisions are made. 3 BY MR. GOLDBLATT: 4 Q You said that Law Services doesn't rank colleges 5 numerically or just the index based on some type of ranking of 6 the institution or the curriculum. Do you do anything like 7 that when you receive the information? 8 A No. 9 Q Do you add points or substract points based on the 10 institution or the curriculum or anything like that? 11 A No, we don't use any points at all, but those are the 12 kinds of things we're thinking about as we read the files and 13 as we're assessing the strength of somebody's academic 14 preparation. And we're accessing what we think their potential 15 will be for law school. And we're looking at what they have 16 done academically thus far in their life, and we're looking at 17 that LSAT score. So these are the kinds of things that we're 18 thinking about, but we don't have any formula for calculating 19 anything. 20 Q Okay. I think -- in response to questions by Mr. Kolbo 21 you described two different reasons why as you understand this 22 policy one looks beyond the index score. If I don't understand 23 this, you instruct me, the first, the reasons why to get a 24 sense of what the person has --their likely academic abilities 25 are, one needs for look further. Is that a fair statement? 215 1 A Yes, we were talking the potential somebody has to excel 2 at the law school. 3 Q I'd like to turn, if I could, to the second reason. Can 4 you describe for the Court what that reason is? 5 A Yes, we also hope to achieve diversity in the entering 6 class. Diversity is defined very broadly. We want to have 7 people that have a variety of prospectives, come a variety of 8 backgrounds. People who have had different experiences. And 9 people who come from different ethnic groups. People who come 10 from different parts of the country who grew up with parents in 11 different socioeconomic-economic status. 12 Q If you can turn to page nine of the policy. I think we 13 have it blown up here. Do you see at the bottom of the page 14 where it says, refers to the second sort of justification? 15 A Yes. 16 Q It goes on to say, "the second sort of justification for 17 admitting students with indices relatively far from the upper 18 right hand corner is that this may help achieve that diversity 19 which has the potential to enrich everyone's education and thus 20 make a law school class stronger than the sum of its parts." 21 A Yes. 22 Q Can you read the next sentence? 23 A "In particular we seek to admit students with distinctive 24 perspectives and experiences as well as students who are 25 particularly likely to assume the kinds of leadership roles in 216 1 the bar and make the kind of contributions to society discussed 2 in the introduction of this report." 3 Q Can you just describe what it is in the file that you're 4 looking for that allows you to make those types of assessments? 5 A We look at the personal statement. We actually have two 6 optional essays that we invite candidates to write. And we have 7 letters of recommendation that are written on their behalf. We 8 have resumes. Information about their extra curricular 9 activities, their work experiences. And we read all of that 10 material to see what the applicant tells us about their life 11 experiences, and what kind of contributions they believe that 12 they will be able to make both to the law school and then in 13 terms of perhaps their goals for after law school. 14 Q Do you have either in writing or in your mind a check 15 list of the types of experiences or backgrounds that you're 16 looking for? 17 A No, I don't have any check list. There's not a 18 particular set of things that we're looking for. We're looking 19 for a variety, and as we read the applications, we're -- we 20 really try to think about each person as an individual and 21 think about what it is that they, he or she, would be able to 22 contribute. 23 Q Page 11. The policy goes on to give three examples, do 24 you see that? 25 A Yes. 217 1 Q Can you describe about Applicant Y? 2 A Yes, Applicant Y is the second example provided in the 3 policy. And it's a person who came to the United States from 4 Argentina at the age of 21, single and six months pregnant.. 5 She advanced swiftly which probably indicates that her 6 supervisors recognized that she had outstanding potential. It 7 says that within a few years she went from an administrative 8 secretary for NCR to director of sales for a major Cincinnati 9 hotel, winning four promotions in as many years. She returns 10 to school full time at the University of Cincinnati in an 11 honors Political Science curriculum in January of 1988, 12 receiving nothing less than "A" grades, and amassing glowing 13 references about the quality of her intellect. She will 14 graduate summa cum laude and Phi Beta Kappa. Her LSAT, 15 however, was only 151 which at that time was 52nd percentile. 16 Both her personal statement and essay were well written and 17 insightful. She is fluent in four languages and has been 18 active in numerous student groups. All of her accomplishments 19 have been gained while raising her child (now eight) alone. 20 Q Dean Munzel, if you were reading a file and saw an 21 applicant and things like that were true is that something, you 22 would consider? 23 A Yes. 24 Q How would it effect your reviews of that applicant's 25 file? 218 1 "A It may persuade us to admit that person. 2 Q Is that true even if the applicant's grades and test 3 scores were lower than some other applicants in the pool? 4 A Yes. 5 Q Why is that? 6 A That's because we are trying to put together a mix of 7 students who will contribute to each others learning. People 8 who have different prospectives. People who will share their 9 ideas, and be engaged. 10 In this particular example, I think you also see 11 that she was quite successful in her academic work sort of 12 despite a lower LSAT score. 13 Q The policy goes on to say, "Other bases for such 14 admissions decision will also come readily to mind." And then 15 it goes on a little lower on page 11, "One might, for example, 16 give substantial weight to an Olympic Gold medal, a Ph.D. in 17 physics, the attainment of age 50 in a class that otherwise 18 lacked anyone over 30, or the experience of being a Vietnamese 19 boat person." 20 A Yes. 21 Q Are those the types of characteristics you would consider 22 in making admissions decisions? 23 A Yes. 24 Q And again why is that? 25 A It's so that we can achieve an interesting mix of people 219 1 with distinct and different perspectives who have experienced 2 success in different ways and different avenues, and have 3 something to offer because of the experiences that they've had. 4 Q Page 12. Dean Munzel, the policy then goes on to the 5 language that Mr. Kolbo asked you about. 6 A Yes. 7 Q Referring to one particular type of diversity that the 8 law school has long had? 9 A Yes. 10 Q It refers to its concern for achieving racial diversity. 11 A Yes. 12 Q And my question, Dean Munzel, as you understand this 13 policy, as you carry it out, is the interest in racial 14 diversity part of the more broader part or is it a separate 15 interest? 16 A I view as a part of the desire for diversity in general 17 and in the many ways. 18 Q Can you explain how that is? 19 A Because again as we read files we are listening to what 20 people tell us about their lives, about their experiences, 21 about their observations. And we are hoping to put together a 22 group of people who are capable and have the potential to excel 23 at law school but also will share their ideas, share their 24 experiences so that in class discussions somebody might 25 actually be exposed to a way that somebody else thinks about 220 1 something because they grew up in a totally different way. We 2 want. We want them to share and engage with one another. 3 That's why we're looking for all these different aspects of 4 diversity and aspects of succeeding in different ways. 5 Q I'd like to ask you next about some of these charts that 6 Mr. Kolbo was asking you about. I don't think we need to 7 project them on, but if we can just use -- just the 8 transparencies themselves. If you would take a look at Exhibits 9 180 and 182. If you can actually take them out, out of the 10 book on compare -- lay 180 over 182. What are these two? 11 A I have the admitted majority applicants and the 12 non-admitted majority applicants. 13 Q Lay them over each other. What does this show you? 14 A This shows you that there's overlap, that there are 15 non-admitted majority applicants and admitted majority 16 applicants who -- they overlap in terms of their LSAT and GPA. 17 Q As you carry out admissions decisions and review files 18 does that surprise you, that you see overlap like that? 19 A No, not at all. 20 Q Why is that? 21 A That's because we review the files and think about people 22 as individuals so there are some people who have lower LSAT and 23 GPA's that we believe will excel at the law school, and may 24 also make a contribution or they may be people that we believe 25 are going to make a very valuable contribution despite having 221 1 lower LSAT's and GPA's than some of the other candidates and 2 vice-versa. There are some people with higher LSAT's and GPA's 3 that don't get admitted because in our view they aren't going 4 do have this capacity or the potential to contribute as much 5 somebody who might have a lower LSAT and GPA. 6 Q From what you understand about admissions, if you were to 7 look at say the admitted minority students and the minorities 8 who were denied admission on the same analysis would you expect 9 the same thing or something different? 10 A I would expect the same thing. 11 Q Why is that? 12 A It's again because we read the files and think about 13 people as individuals. And we are trying to make our own 14 assessment. We're not just basing our decisions on numbers. 15 We're making our own assessment of the person's potential to 16 excel at the law school, and also we're thinking about the 17 kinds of contributions this person might make to the 18 intellectual life and the dialogue that's going on at the law 19 school. 20 Q If you could compare Exhibit 180 which is the admitted 21 majority students with Exhibit 181 which is the admitted 22 minority students. 23 A Okay. I have the admitted majority applicants and the 24 admitted under-represented minority applicants. 25 Q Yes. And there what do you see? 222 1 A I see overlap. 2 Q From your experience in making admissions decisions does 3 that surprise you? 4 A No. 5 Q Why is that? 6 A For the same reason we were just talking about that we do 7 an individualized review of the files, think about people as 8 individuals, think about what we know about them in terms of 9 what that means for their potential to excel at the law school, 10 and also we're thinking about what kind of contribution they 11 would be making. 12 So you see here that we admitted majority applicants 13 with lower test scores and GPA's than some of the majority 14 applicants who were admitted and vice-versa. 15 Q I'm sorry. You said admitted? 16 A We've admitted -- I can't remember exactly which way I 17 said it. But we've admitted majority applicants with lower 18 test scores and GPA's than some of the minority applicants that 19 we have admitted and vice versa. 20 Q Now, Mr. Kolbo asked you about what the lowest possible 21 LSAT score was and indicated that you can't score below a 120? 22 A That's correct. 23 Q If this chart began at a 120, and went up would the 24 extent of the overlap reflect on this chart be any different? 25 A No, it be exactly the same. 223 1 Q If you could compare Exhibits 180 to 183, and that's the 2 minority applicants denied admission with the majority 3 applicants who are admitted. 4 A Okay. I have admitted majority applicants and 5 non-admitted under-represented majority applicants. 6 Q What do you see there? 7 A You see that the admitted majority applicants are 8 clustered high in this grid. The non-admitted 9 under-represented minority applicants are -- have a little bit 10 more scattered appearance on the grids but this is overlap. So 11 there are minority applicants that we did not admit who have 12 higher test scores and higher GPA's than majority applicants 13 who admitted. 14 Q Does that surprise you? 15 A No. 16 Q Dean Munzel -- 17 MR. GOLDBLATT: At this point, your Honor, if we 18 could move these four Exhibits 180 to 183? 19 THE COURT: We have been using them all day. 20 Received. 21 (Defendant's Exhibits 180 - 183 received into 22 evidence.) 23 BY MR. GOLDBLATT: 24 If you could turn back to the admissions policy here. On page 25 12 it says, "a commitment to one particular type of diversity 224 1 that the school has long had and which should continue. This a 2 commitment to racial and ethnic diversity with special 3 reference to the inclusion of students from groups which have 4 been historically discriminated against, like 5 African-Americans, Hispanics and Native Americans, who without 6 this commitment might not be represented in our student body 7 in meaningful numbers." 8 A Yes. 9 Q As you understand that policy is -- what is the reference 10 to "historical discrimination"? 11 MR. KOLBO: Object to foundation. 12 THE COURT: Sustained. 13 BY MR. GOLDBLATT: 14 Q As you carry out this policy is the purpose of 15 considering race to remedy or make up for discrimination that 16 has taken place in the past? 17 A I carry out the policy. I don't really question the 18 reasons behind it. I wasn't part of writing the policy. 19 Q We'll move on. 20 In response to some questions from Mr. Kolbo with 21 respect to the admission of Michigan residents you described 22 conversations you had with the dean of the law school about 23 what the composition of the class should look like? 24 A Yes. 25 Q Have you ever had a conversation like that with the dean 225 1 of the law school in which a number, percentage, or range of 2 the class was described with respect to race? 3 A No, never. 4 Q Has anyone given you a number? 5 A No. 6 Q Have you ever had conversations with a member of the 7 faculty in which it was suggested that law school should admit 8 some particular number or percentage of minority students? 9 A No, nobody has ever given me a particular number or 10 percentage or range of minority students to admit or enroll at 11 the law school. 12 Q Dean Munzel, in response to questions from Mr. Kolbo you 13 stated that a minimum threshold in order to be admitted you 14 must -- that the applicant is likely to succeed at the law 15 school? 16 A Yes, the policy instructs that we not admit anybody that 17 we believe would have serious difficulty in passing and 18 succeeding academically at the law school. 19 Q I think the term that you used was there needs to be a 20 minimum threshold? 21 A Yes. 22 Q Is that threshold sort of a quantifiable numeric index 23 score? 24 A No. No, there is no index score or LSAT or GPA that is a 25 minimum or that has been determined to equal that minimum 226 1 threshold. The policy suggest that we not admit people if we 2 think they're going to have serious academic difficulty. But 3 it is not -- there isn't a definition in terms of numbers of 4 what that might be. And, indeed, we don't have any particular 5 cut off or minimum in terms of LSAT score or GPA when we are 6 making admissions decisions. 7 Q Dean Munzel, I'd like to just walk through what happens 8 to a file when it comes in your office and just describe if you 9 for the Court how that process works. When an application 10 arrives in the mail what happens next? 11 A Applications are received from September 1st all the way 12 until February 15th. February 15th is our typical deadline for 13 applications for the class that would be entering in summer. 14 And fall of that year. And so when an application comes in the 15 mail we have a staff that opens the mail, and they start a file 16 folder for that particular person. They have to check to see 17 whether we have already received mail on behalf of that person. 18 Sometimes, for instance, we receive a letter of recommendation 19 prior to actually receiving an application for somebody. So 20 once we receive an application we check our drawers to see if 21 we already have any mail or information about what that person, 22 and we would those -- all of that relate to that person 23 together in that file folder. And then we have -- 24 Q What's the next step? 25 A Then we have staff that do data entry so we use our data 227 1 entry system. We contact Law Services which is the entity hat 2 we talked about that administered the law school admissions 3 test and gathers the transcripts and so forth. We contact Law 4 Services to let them know that this particular candidate has 5 applied. And then we request the LSDAS report that Law 6 Services compiles for the candidates. Then Law Services would 7 send us a hard copy of that. They also transmit that data, a 8 lot of that data electronically to us. And then our staff 9 looks at the application form itself that the student filled 10 out. The student has to fill out an application. And the make 11 sure that the data that we have about the person in our 12 database matches the information that the person has given us 13 in their application form. 14 Q If you could describe how the applications are actually 15 stored, where are they in your office? 16 A The applications are kept alphabetically. Initially on a 17 given day, the applications that come in that particular day 18 are kept together for the staff as they're their processing 19 work. I should say that the flow of applications over the 20 whole season really varies. So in the months of September, we 21 only receive a handful of applications, and then the volume 22 increases as we get closer and closer to the February 15 23 deadline. So the staff would open the mail and start the file 24 for those particular people. And then that group will stay 25 alphabetically together as it goes through the processing work. 228 1 And then once the file is ready to be put away, in other words 2 the processing staff has done their work, the files are 3 organized alphabetically within what we call status. 4 Q What do you mean by status? 5 A Status the -- basically the relationship that the 6 candidate has with the admissions office. So when the file 7 first comes in, or the application first comes in, that file is 8 what we call incomplete, meaning that we don't have everything 9 yet that we need from a person. So that file is not ready for 10 us to review on the merits. We have a shelf where all 11 incomplete files are kept alphabetically. And then once we 12 have all the material that we need, then the status changes o 13 to complete. So now that person's file is complete and ready 14 for us to review. Those files are kept on a separate shelf 15 also alphabetically. So all the incomplete files are kept 16 together and so forth. 17 Q Is there a separate shelf somewhere in your office where 18 the minority files are located? 19 A No. 20 Q So if I were to come into your office ask you to point me 21 to the minority files, what would you say? 22 A I would ask you the name of the candidate. The only way 23 we could find anybody's file is if we knew their name. And 24 then we have to look up to see are they incomplete, are they 25 complete, what their status is, and then we would know where on 229 1 the shelf to find that file. 2 Q How many people are there in your office who's job it is 3 actually to review files? 4 A Typically we have about four in the office including 5 myself who are reviewing the files, reading the files, and not 6 just doing the processing work, but actually evaluating the 7 applications. 8 Q And who decides who is it that will review? Who 9 allocates the files for different reviewers? 10 A I do. 11 Q How do you make those decisions? 12 A It did depends a little bit at what point in the season 13 we're are. For instance early in the admissions season I would 14 probably read files that I thought were going to be stronger 15 candidates. And I probably would have other people on my staff 16 read files where maybe the LSAT scores and GPA's were a little 17 bit weaker. And then we actually meet on a regular basis and 18 discuss the files that we've read. 19 Q Was there -- is there a particular reader or has there 20 been since you're been in the law school whose job it is to 21 review the files of minority applicants? 22 A No. 23 Q So how are minority applicants reviewed? 24 A They're reviewed in the normal course just like all of 25 the applications are reviewed. 230 1 Q Dean Munzel, I'd like to actually go through a sample 2 file with you to get a sense of what it is that you're looking 3 when you're reviewing an application. If you would turn to 4 Exhibit 106. 5 A Yes, I have 106. 6 MR GOLDBLATT: Your Honor, this is an actual 7 applicant to the law school. What we've done in discovery in 8 this of this matter, is we've redacted out -- 9 THE COURT: I understand. 10 BY MR. GOLDBLATT: 11 Q Look at the cover of this application, are you familiar 12 with this type of document? 13 A Yes, this is the front of the file folder for a 14 particular applicant. 15 Q And looking at the center column where it says 16 "Decisions"? 17 A Yes. 18 Q Under "Admit" do you see there's a column that's filled 19 out? 20 A Yes. 21 Q What is it that you're able to -- what can you tell from 22 that? 23 A Sure, this is my handwriting. Where it says "admit" I 24 wrote "F" which stands for fall 2000, the "00" stands for 2000. 25 This particular candidate was asking for a deferral so I 231 1 actually made the decision on May 25, 1998, which is filled in 2 the next column there where it says "date." Under "Signature: 3 that is an "E" and an "M" which stands for -- those are my 4 initials, Erica Munzel. 5 Q Is that your handwriting? 6 A Yes, that's my handwriting. And then the next column it 7 says "data base" and it's stamped May 6th, 1998. That's the 8 day that our staff actually made the change in the data base to 9 offer her admission. And then the next column says, "date 10 sent." That's the date that the staff -- and they generated 11 the letter, I signed it, and then was mailed on May, 6th, 1998. 12 If you go way back to the left side of that column in the 13 middle it says, letter" and it says 3/13 that's when -- we have 14 a whole table of letters, and that's the letter code for the 15 offer letter that we sent to this applicant. 16 Q Is there some sort of book of letters? 17 A Yes, we have whole letter book, letter -- there's a 18 letter table with various letters that we use listed by code -- 19 by number, we call that the code. 20 Q Instead of being admitted, this applicant had been 21 denied, would that have been reflected here? 22 A Yes. 23 Q How so? 24 A In the same manner so if we had put her on the wait list 25 and in that second row where it says wait list it would be 232 1 filled it and so forth. If we had denied the person then you 2 would see that fourth row where it says "denied" then that 3 would be filled out. 4 Q And the letter codes correspond with the -- do I 5 understand you correctly to say that corresponds with the form 6 letters that is essentially sent to the applicant? 7 A Yes, we have a series of letters, different letters that 8 we use. So if we deny the applicant then you would see a 9 different letter code there. I don't have those memorized, so 10 I'm not sure where it would be. 11 Q But when you make a decision to admit or to wait list, or 12 to deny admissions to an applicant is the letter that the 13 applicant receives different depending on that applicant's 14 race? 15 A No, same letter. 16 Q The same code? 17 A Yes. 18 Q If we just walk through the left-hand part of the cover, 19 just to understand what this means, the top row, there are 20 three boxes, First year, Transfer or Guest. 21 A Yes. 22 Q And it's "x'd" under first year? 23 A Right. This candidate was applying to enter the law 24 school as a first-year student. We have other people who apply 25 to transfer which means they have finished their first year of 233 1 law school elsewhere and they're applying to join us at the 2 University of Michigan in their second year, and then they're 3 hoping to graduate from Michigan. And then we also have a few 4 people would apply to be visitors or guests at the law school. 5 So those three choices are right on the front of the folder. 6 Q If you could just walk us through, I don't want to take 7 up too much of the court's time on this, but if you could just 8 walk us through these other boxes and explain briefly what they 9 mean. 10 A Right below first year you see, it says "term/year." And 11 the staff would indicate there when it is that the candidate 12 wanted to start law school. A quarter of our students start in 13 the summer and three quarters start in the fall. So that's 14 where we would indicate whether they wanted to start in the 15 summer or the fall. And also if they're asking for a deferral 16 that would be reflected in that box. 17 The next row down it says "acknowledge" and then 18 there's a date stamped in there December 23rd, 1997. That 19 means that we acknowledged having received the person's 20 application. So acknowledged means we have received the 21 application. We have a post card that we send to the 22 applicants to let them know that we have receive their 23 application in our office. So that was done on December 23, 24 1997. 25 The next row says "fee" and there's a number stamped 234 1 there. And then there are choices "paid or "waived." In this 2 case there's a "C" under paid which means the person paid the. 3 Application fee by check And that number was stamped on the 4 check. 5 THE COURT: Under what circumstances do you waive 6 the fee? 7 THE WITNESS: Sometimes people don't the financial 8 resources to pay the application and we have a process for 9 them to ask us to waive it. And we also waive the application 10 fee. We have a process that's called candidate -- it's a 11 little bit complicated, but during our what I call our 12 pre-admit recruiting which is in the fall when we're trying to 13 reach ought and we're trying to make sure we have a strong 14 applicant pool there's a service provided by Law Services 15 which is called "Candidate Referral Service" and people can 16 choose if they want to participate in that, but if they do 17 then we receive information about them, their LSAT scores, 18 their undergraduate institutions, their GPA's -- 19 THE COURT, You can waive for financial need or somebody you're 20 trying to recruit? 21 THE WITNESS: Yes. 22 THE COURT: Okay. 23 BY MR. GOLDBLATT: 24 Q I should do as well. 25 Underneath there is says personal statement, 235 1 Recommendation letter, LSDAS? 2 A The staff stamps as it's shown here once those items have 3 been received. So we've received the personal statement. We 4 received at lease one letter of recommendation and that's 5 stamped December 29, 1997. The LSDAS stands for the LSDAS 6 report. So we have received that. 7 And then the next one says that the data base is 8 complete. So on January 7th, this particular application was 9 complete and ready for review. 10 Q Do you see under there were it says "Comments" underneath 11 that? 12 A Yes. 13 Q The first set do you recognize that handwriting? 14 A Yes, that's my handwriting. 15 Q If you can just read what that says. 16 A May 5th, 1998, called and then her name is blanked out 17 but I called her to discuss deferral. She will be at Oxford 18 for two years, and will probably prefer to start in "F" which 19 is in fall. Told her she could switch to summer if she wants. 20 She's also been admitted to Yale. Hadn't decided yet if she 21 prefers U of M or Yale. Interested in assisted reproductive 22 technologies. Would like to speak to our students or faculty 23 about this. Told her I'd hook her up with some of our students 24 if she called back in June. And then my initials are after that 25 note. 236 1 Q Dean Munzel, do you actually remember reviewing this 2 applicant's application? 3 A I have reviewed this application a little bit in 4 preparation today, and by reviewing the notes and so forth, I 5 do have a vague recollection of her. I don't necessarily 6 remember everybody two or three years later but I do hae a 7 little recollection after having reviewing these notes. 8 Q Do you know whether this application is one that you 9 reviewed yourself in the first instance or if there's someone 10 else in your office may have reviewed this before you? 11 A This file was actually reviewed initially by somebody 12 else. 13 Q When what happens and -- who makes the final decision? 14 A I do. 15 Q So when someone reviews the file first and you're making 16 the final decision how do you go about reviewing the file in 17 light of the fact that someone had reviewed it earlier? 18 A What we do is we have a comment sheet so that the initial 19 reviewer of the application have the opportunity to write some 20 notes and then we sit down and meet and we discuss the files 21 until the person who read the file would talk to me about their 22 assessment of the file, what they thought the strengths and 23 weaknesses were. Kind of what their reaction to the file was. 24 And then I would take those into consideration, read the notes 25 that they wrote and then I would basically read the file myself 237 1 and make my judgment. 2 Q If you were reviewing the file that had been reviewed by 3 someone else earlier where would you start? 4 A I would probably with the notes that they wrote. 5 Q If you could then to that part of this file. I believe 6 it's the page that has the Bates number on the bottom, UML 7 070996. 8 A Yes. 9 Q This is the type of comments you were describing earlier? 10 A Yes. 11 Q If you can go through this and tell us what you are able 12 to learn from looking at this? 13 A Yes, this -- these comments were written by David Baum. 14 Q How can you tell that? 15 A Because his initials are at the top left part of the 16 sheet. 17 Q And who is David Baum? 18 A David Baum is one of our Assistant Dean of Students now. 19 At this time he worked in the Dean of Students Office, and was 20 able to help read some files that particular year. 21 Q Okay -- 22 A That was the first year -- that was at the point in time 23 when Dean Shields had left, and I was the acting director of 24 Admissions and we were a little short staffed. 25 Q I understand. If you can just go through this and 238 1 indicate what this says and how it affects your analysis of 2 this application? 3 A Sure. He indicated that the candidate scored a 161 on 4 the LSAT which was 86 percentile. She received a 3.8 GPA which 5 was 99 percentile. That was at Vassar College. She got a 6 bachelor's degree, majored in political science in women's 7 studies in 1996. He said "TR" which stands for transfer, was 8 fine. Excellent performance in a rigorous liberal arts 9 curriculum. In December she won a Rhodes Scholarship. She 10 will pursue a master's in philosophy and politics at Oxford. 11 Wanted a two-year deferral. 12 He goes on to say "H" which stands I think for 13 "honors." He says Phi Beta Kappa. Graduated with honors in 14 women's studies and won awards for excellence in political 15 science. 16 He talked about extra activities, he says 17 "outstanding leadership." Liaison between Vassar president and 18 student body for example. Great public service. Editor in 19 chief of "Student Publications." 20 He goes on to say -- talked about her work 21 experience and says, assistant to Vassar president, ten hours 22 a week, senior year. Two interesting summer internships in 23 D.C. Women's issues and alcohol abuse lobbyist. 24 Since college, fellowship in Office of New York City 25 Deputy Mayor for Operations. 239 1 Personal statement, very well done. She is a 2 dynamo. Apparently gifted. Consensus builder/problem solver. 3 Optional essays, fine, well written, thoughtful. 4 Recommendations: Very strong. 5 And then he summarizes, he, says if she were 6 applying for admissions to this year's class he says I would 7 recommend that we admit her. She is remarkable. She also 8 seems to want Michigan because she intends to pursue a women's 9 studies masters certificate, too. The fact that she has won a 10 Rhodes scholarship confirms to me that if you're going to 11 admit someone and allow them to defer for two years, this 12 applicant would be worthy of that. And in parens he notes 13 mediocre LSAT score notwithstanding by our standards. 14 She is going to be a great lawyer some day. I want 15 her to have a Michigan law school degree. 16 You should know that Dave is an alum of the law 17 school. 18 So he read this file and thought very highly of this 19 candidate. So then I would look a little further and see if 20 my own assessment matched his assessment. 21 Q Where would you begin that? 22 A I would look at the LSDAS report. 23 Q Is this the report that you were describing in your 24 conversation with the Court? 25 A Yes. 240 1 Q Where is that in this document? 2 A It the -- the beginning of the next page. 3 Q Okay. If you could just walk us through. I know there's 4 a lot of information here on this page if you could just walk 5 us through what the information is and how you go about reading 6 it? 7 A Okay. In about the middle of the page you see the Law 8 Services compilation of her credits and GPA. So -- by each 9 year it indicates how many credits she took and what her GPA 10 was for that year. It also shows us how -- what her cumulative 11 GPA was each of the years. So she ended up -- 12 Q Is that the section there -- 13 A Yes, that is the section. 14 She -- her grades actually trended up. In other 15 words her first were her weakest grades which she got a 3.67. 16 And after that she was getting higher than 3.8 each of her 17 years of college. And she finished with a 3.8 overall. 18 You can see that is actually in the 99 percentile 19 for the group of students at Vassar who took the LSAT. 20 Q Can you tell me what the average GPA at Vassar for 21 students who took the LSAT is? 22 A Yes, that's a 3.14. And you can also see that the average 23 LSAT score for the students at Vassar that took the LSAT is 24 157. And if you look above -- 25 Q Is that right there? 241 1 A Yes, yes. And then if you look at sort of the row above 2 what we've been talking about that's where we see the 3 distribution of LSAT scores and GPA's for that group of 4 students at Vassar. So that you can see sort of where she 5 compares with her cohorts at Vassar. 6 You can see from this that there's probably not a 7 lot of grade inflation at Vassar because not very many of 8 those students got above a 3.8 GPA even though quite of them 9 scored very hight on the LSAT test. 10 And then you can also see this particular person's 11 score when she took the test. And this is done at sort of 12 lower left-hand corner of this page. She got a score of a 161 13 which was the 86th percentile for that time frame. She took 14 the test in October of 1997. 15 Q Dean Munzel, would you be able to make a decision whether 16 to admit or deny admission to this applicant based on looking 17 at this page? 18 A No. 19 Q What else would you need to know? 20 A I would look at her transcript itself. And, of course, I 21 would read the rest of the file, too. 22 Q If you can just take us through that. 23 THE COURT: Do it quickly because it speaks for 24 itself. 25 A So I would look at her transcript. And I've looked at 242 1 this previously and I know she took a rigorous curriculum. She 2 had a very strong performance throughout her academic work at 3 Vassar. Then I would look at the application form itself and 4 this is where you can see she's indicated she was a two-year 5 deferral. She's told us that she's white. She's told us what 6 her degree was in Women's studies and political science. When 7 you turn the page you can see where she has graduated from high 8 school. You can see a little bit of information about her 9 parents. One of her parents -- 10 THE COURT: What's the significance of whether or 11 not her parents went to the University Michigan Law School 12 THE WITNESS. We use that information to make sure that we 13 don't -- how can I say this -- that we follow through nicely 14 with sons and daughters of alums. Sometimes the dean is 15 contacted by alums who are interested in their son or 16 daughter. And we want to know that they are a son or daughter 17 of alum up front. 18 THE COURT: I read somewhere that indicated that is 19 their son or daughter were alumus there was some special 20 consideration? 21 THE WITNESS: Well, there isn't a point system or 22 anything like that but I think we give very careful attention 23 to children of alums. And I think there are times where we 24 may offer somebody admissions because they are the son or 25 daughter of an alum where me might have if that weren't the 243 1 case. 2 THE COURT: And how does that go towards their 3 success or diversity or towards their contribution to the 4 class? 5 THE WITNESS: That particular aspect might not. 6 THE COURT: Okay. Go on. 7 BY MR. GOLDBLATT: 8 Q Dean Munzel, after looking at this first page where do 9 you next turn in reviewing this application? 10 A Then I would read the resume information, answers to the 11 questions about extra curricular activities and work 12 experience. 13 Q Are those questions 13 through 18 here in this 14 application? 15 A Yes. 16 Q But after you look at that where would you next turn? 17 A Then I would read the letters of recommendation. And she 18 has four of them here. 19 Q Would you look at the first personal statement? 20 A Oh, I'm sorry, I would read the personal statement next. 21 I'm sorry. 22 Q Okay. And where is that in this application? 23 A That's 071009. 24 Q And here, again, there's no need to go through it, but 25 just take a look at it and describe what it is, if anything 244 1 about this particular personal statement that leaves an 2 impression on you one way or the other? 3 A I read this personal statement recently, reread it. I 4 think what particularly strikes me about this, it is very well 5 written, but also she very nicely -- she does a very nice job 6 of articulating what impact different experiences have had on 7 her, in her life. She goes through a series of things she's 8 been involved with and things that happened to her and she 9 tells us what she learned from those things. And ultimately how 10 she feels that she would be able to make a valuable 11 contribution to the law school because of those experiences. 12 This is something that I tell people all the time. 13 Applicants ask me, you know, can you give any advice about the 14 personal statement. And what I tell them all the time, is 15 that the least helpful personal statement is one that just 16 chronologically reports I did this, and then this, and then 17 this. What's much more helpful is if they think about what 18 has happened in their life and what they've done, and then 19 tell us something meaningful about that. Tell us something 20 about the impact that that had on them. Tell us what you've 21 learned from that about themselves or about the rest of the 22 world. And if people are able to do that it gives me some 23 confidence that when they come the law school they will also 24 be reflective and active thinkers and think how things impact 25 on them. So it's reactions with their fellow classmates. But 245 1 she did an excellent job in doing that in this statement. 2 Q Dean Munzel, was it ever the case that a particularly 3 well written or strong personal statement will make a 4 difference in whether you admit or deny a student? 5 A Yes. 6 Q Does that happen common, or is -- 7 A I think that happens commonly. 8 Q You mentioned the letters of recommendation, if you would 9 turn to what I think is the second letter in this file It's the 10 page that begins 071017. 11 A Yes. 12 Q If you could walk through this letter of recommendation 13 and indicate anything if there's anything in this letter that 14 would effect your view of this file? 15 A If you look about a third of the way down it looks like 16 there's some material redacted. But the author of this letter 17 who is a professor of social science at Vassar says she's an 18 outstanding student, very intelligent and articulate. She's 19 very well prepared for class. Her contributions were quite 20 helpful. She thinks about what she reads, and applies it to 21 her own experience. Perhaps most remarkedly, she listens 22 extremely well to her classmates and engages them in a mutual 23 exploration of ideas. She is one of those students that one 24 relies upon to raise interesting issues in class and to move 25 the discussion along in a fruitful way. When I saw that she 246 1 had signed up for a second course with me, I was delighted 2 because I knew she would make the course more interesting for 3 her classmates and for me. 4 I love to see this kind of a description in a 5 recommendation because this is part of what I believe the 6 faculty wants in the class at the law school. 7 Q Why do you think that's something the faculty wants? 8 A The faculty policy talked about wanted the students who 9 are engaged in sharing their prospectives and people who will 10 make the class better than some of its -- make it a class 11 interesting for them to teach. It talks about students being 12 able to learn from one another. And this is the kind of 13 engagement that we're hoping to have. So when a faculty member 14 that has already talked a person says this, that impresses me 15 very much. 16 Q Is there anything else in this letter that impresses you 17 one way or the other? 18 A Yes, actually further down in that same paragraph -- 19 THE COURT: I think it's a good letter. I don't 20 think anybody will -- 21 MR. GOLDBLATT: That's fair enough. 22 THE COURT: Maybe she'll apply for a clerkship one 23 day. 24 A This recommender goes on to say that her engagement 25 continued when she worked on projects and she actually digs 247 1 quite deeply to think about things, and can tie together her 2 own experiences with whatever is being said in the classroom -- 3 BY MR. GOLDBLATT: 4 Q If you could just turn quickly to the last letter which 5 is page 071022. Is there anything here that makes a difference 6 in how you view this file? 7 A Yes, the top of this letter -- this is written by the 8 Chair of the Political Science Department at Vassar. And he 9 says she is one of the two or three best students I've taught 10 in a quarter century as an academic including 16 years at 11 Vassar. 12 He goes on to talk about what a terrific job she did 13 in the classroom and so forth. And that also is the kind of 14 statement that I love to see. 15 Q Dean Munzel, based on this applicant's index score was 16 she one of the stronger applicants that the law school 17 received? 18 A Yes. 19 Q Just based on the index score -- 20 A Oh, I'm sorry. I'm sorry. I was reading more of this 21 letter. It is really a great letter. 22 Let me turn my attention to you. I'm sorry. This 23 happens to me all time. 24 Q I agree the letter is more interesting. 25 A Well this professor goes on to talk about an example. 248 1 She wrote a paper and -- I mean he mentions her own family 2 history which was which her grandmother apparently owned a 3 store that was looted in 1968 in Washington D. C. And the 4 professor goes on to say that she really researched that in a 5 much greater way than he was expecting her to do and brought 6 that experience into her academic work. 7 Q Dean Munzel, the policy says on pages 9 and 10 that there 8 are people with particular experiences or background that might 9 contribute to the classes is a statement like that important 10 for determining whether or not this is an applicant whose 11 background might add to the class? 12 A Yes, this application, both the personal statement and 13 the letters of recommendation, the list of her activities, her 14 resume gives me a lot of confidence that this is the kind of 15 person who will come to the law school and be an active 16 thinker, make original observations, think about things that 17 are happening, share ideas, engage with her fellow classmates 18 and the professors. I believe you see that in this file. 19 Q But based on just the index score was this one of the 20 stronger applicants you would have received for admission to 21 the law school? 22 A No. Based on the index score alone this is not a 23 particularly strong application. 24 THE COURT: How about the index score along with 25 that other matter that tells you about the school and how she 249 1 rates? 2 THE WITNESS: Well, her GPA is stronger especially 3 beyond just the GPA. I would say her actual academic 4 performance was quite strong. Her LSAT score was not that 5 impressive. 6 THE COURT: But higher than others in her 7 classification from Vassar. 8 THE WITNESS: Yes. 9 BY MR. GOLDBLATT: 10 Q Was this applicant aided by a full review of the file? 11 A Yes. 12 Q Now, as the Court noted this applicant's letters of 13 recommendation were quite exceptional. Is it common though you 14 admit applicants with grades and test scores in this range but 15 with -- whose letters of recommendation are impressive but not 16 quite as impressive as this applicant? 17 A Yes. 18 Q Included in this applicant's file is her index score. 19 A Her index score is not on the file anywhere. 20 Q I understand from your earlier testimony that race is one 21 of the factors that you consider in making admissions 22 decisions? 23 A Yes. 24 Q Now,when you consider raise is the way in you go about 25 considering raise any different from the ways in which you 250 1 consider the factors that we've discussed before, the 2 curriculum, the letters of recommendation, the personal 3 statement? 4 A No. 5 Q Are there some number of students who are admitted in 6 part because they had strong letters of recommendation or good 7 personal statements who might not have been admitted in the 8 absence of that factor? 9 A Yes. 10 Q Is the same true of race? 11 A Yes. 12 Q Are there some number of seats in the class that are 13 fixed and set aside for people with strong letters of 14 recommendation? 15 A No. 16 Q Is there some number of seats that are picked or set 17 aside for students of particular race? 18 A No. 19 Q Now, you said there's no particular cutoff scores in 20 terms of grades or test scores above which the applicant is 21 automatically -- which the applicant is automatically denied 22 admission? 23 A That's correct. 24 Q Wouldn't it be easier to do your job if you did it that 25 way? 251 1 A It would take a lot less time. 2 Q So why do you do all that work? 3 A Well, I think the work pays off I think that we have 4 better classes because we are doing this kind of individualized 5 review, file-by-file, thinking about people. Thinking about 6 what's beyond the numbers, and thinking about what kind of 7 contributions. What kind of level of engagement it will have. 8 And I'm very proud of the work that I've done in reviewing 9 these files and bringing students to the law school. I think 10 it's a better class because of that. 11 Q Do you think the class would be as good as it is or the 12 richness that you have if you didn't consciously consider race 13 in the factor admissions? 14 A No. 15 MR. GOLDBLATT: Thank you. Nothing further. 16 THE COURT: Mr. Washington? 17 CROSS-EXAMINATION 18 BY MR. WASHINGTON: 19 Q Dean Munzel, Mr. Kolbo used the term "soft factors" in 20 which he was talking about things like resumes and letters of 21 recommendation, is that a term that you use or a concept that 22 you're familiar with? 23 A I believe the policy uses the term "soft" in it. I don't 24 necessarily use that term myself. 25 Q I take it that would be factors other than the index 252 1 score, or their grade point average, or the LSAT score? I 2 think that's what the policy refers to? 3 A Yes. 4 Q Now, I wanted to look back for a minute as these examples 5 of students that the policy indicates as having brought 6 diversity to the law school. As I understand it, X, Y, and Z 7 here are real people who were admitted at some point by the 8 University of Michigan Law School. 9 A I don't actually know that for a fact, but I agree the 10 way it reads it sounds like that, but I don't actually know 11 that. 3. 12 Q And just going through them very briefly as I understand 13 it each of these individuals if you were to look solely at 14 their grade point average and their LSAT scores they would be 15 considerably down the scale; am I correct? 16 A Yeah, I probably should get that in front of me so I can 17 look at that. 18 Q I'll tell you what, let me give you my copy. I have the 19 big one right here. Page 10. 20 Just looking here X appears to have an LSAT score in 21 the 56 percentile. 22 A Candidate X took it twice. Scored in the 46 percentile 23 once, and 56 percentile the second time. And he had a 2.67 GPA 24 which was the 8th percentile at Harvard that particular year. 25 Q And then X was a person who had come I believe from 253 1 Bangladesh; am I correct? 2 A Yes, that's correct. 3 Q And in considering the file from someone like X would you 4 consider the fact that he had come from Bangladesh as part of 5 the mix of factors that you would look at in considering his 6 other accomplishment? 7 A I probably would. I mean - you know, there's just a one 8 paragraph summary of his whole application here. But I 9 probably would be thinking about where he came from, how he -- 10 at what point he came to the United States and started his and 11 started his education here. 12 Q Then Y I think is a young woman who came from Argentina 13 at the age of twenty-one? 14 A Yes. 15 Q And just looking at -- and also was a mother? 16 A Yes, she's a single mother. 17 Q And here LSAT score just looking here was in the 68th 18 percentile? 19 A It looks like it says that she scored a 151 which was the 20 52nd percentile. 21 Q I'm sorry I'm looking at the wrong page. Do you have 22 page 11? 23 A I do. 24 Q I don't. That's the problem. 25 Now we're on the same page. 254 1 A Yes. 2 Q Is that the percentile? 3 A Yes. 4 Q And then the last person is another woman -- I'm sorry 5 before we leave Y in considering what she had accomplished and 6 her promise of being accepted would you her gender as a factor 7 in looking at what she had overcome and what kind of candidate 8 she would make to the University of Michigan Law School? 9 A I think in the paragraph we have here about her, one of 10 the significant pieces of information that we have is that she 11 is a single mother. And so was achieving, you know, striving 12 and achieving academically while single-handedly raising her 13 child Of course, that's tied to her gender. 14 Q Right. Okay and then the last person also is a woman, Z, 15 who came from the University of Florida. It looks like she has 16 a little bit better scores and grade point average; am I 17 correct? 18 A She had a 3.99 GPA from the University of Florida, and 19 90th percentile LSAT score, so you're right, they are a little 20 better in terms of numbers than the other two we just 21 discussed. 22 Q And the last sentence here says, "Her file illustrates of 23 diversity considerations may strengthen good but not 24 exceptional numerical credentials? 25 A Yes. 255 1 Q And elsewhere in the policy it makes reference to the 2 fact that LSAT's and grade points aren't necessarily very good 3 predictors of what somebody will do in law school much less 4 what they do as lawyers; is that true? 5 A The policy I think talked about the fact that at least at 6 the point they wrote this policy the index score was predicting 7 approximately 27 percent of the variance in first year grades. 8 Q And more or less nothing about what they might do as a 9 lawyer; correct? 10 A I think you're referring to -- what page of the policy 11 you're referring to? 12 Q You know, I made a terrible mistake giving you my copy. 13 I'll move ahead. 14 Dean Munzel, in these three specific cases we've 15 gone through would it be fair to say that the kinds of 16 adversity and discrimination and so forth that these three 17 individuals suffered could give you as a reader of their 18 application the view that maybe their test scores and their 19 grades don't accurately measure what their promise might to 20 both what they could bring to the law school and to the legal 21 profession? 22 A I'm going to have to confess I was sort of flipping 23 through this while you were asking the question, I'm not sure I 24 got the whole thing. 25 Q Okay I'll rephrase it. 256 1 Would it be fair to say looking at students X, Y Z 2 That when you looked back and saw the kind of 3 adversity and discrimination and challenges that each of them 4 had faced and overcome that when you look at those it gave you 5 reason to think as an admissions officer that maybe their LSAT 6 didn't predict what kind of contribution they could bring to 7 the class or to the legal profession? 8 A I think it would be a little easier to answer that 9 example buy example. 10 Q Fine. 11 A So in the first example the gentleman scored fairly low 12 on LSAT, and had a 2.67 GPA which is fairly low. But he went 13 to Harvard which is, you know, strong, academic institution. He 14 came -- he's 27 I'm not it tells us when he actually came to 15 the United States. We don't really know much about -- based on 16 this paragraph, I don't very much about his prior academic 17 experience. I think in reading this you see that he's going to 18 add some very interesting prospectives. And I think you could 19 conclude that he had succeeded at Harvard. He hasn't gotten 20 the top grades at Harvard, but he has succeeded there even 21 though his LSAT scores are a little bit on the low side. So 22 you can conclude that he would really be an interesting person 23 to have in the law school, and that he will succeed 24 academically at the law school as well. 25 Q And that his contributions to the law school and for that 257 1 matter to the legal profession wouldn't be measured by his LSAT 2 score which was in the 56 percentile -- or 46 percentile? 3 MR. KOLBO: I object to foundation at this point. 4 MR. WASHINGTON: She's an admissions officer. 5 THE COURT: I'll give you some latitude. 6 BY MR. WASHINGTON: 7 Q Dean Munzel, you mentioned earlier Mr. Kolbo showed you 8 some tables of the mean LSAT scores for minority students and 9 for majority students who had applied at the University of 10 Michigan and were admitted I think was 1997, do you recall that 11 table? 12 A Are you talking about the grid? 13 Q The chart. 14 A I think the chart was --my recollection was '94 and '95 15 were the years that the chart discussed. 16 Q You are correct. And it shows I believe about a ten or 17 eleven point gap between the minority students and the white 18 students in terms of their scores on the LSAT? 19 A I would to look at it again to say for sure if it was ten 20 or eight. But I do remember that there's a gap, yes. 21 Q And has that gap been fairly consistent over the years? 22 A I would have to look at that data to make a judgment to 23 make a judgment about how consistent it's been. I mean, I can 24 tell you that based on my experience in the years that I have 25 been charged with the responsibility of carrying out the policy 258 1 that that is my general knowledge of our applicant pool. If 2 it's the average LSAT score for the minority students is -- of 3 all the majority students in our pool is lower than the average 4 score of all of the Caucasians in our applicant pool. That I 5 can tell you for sure. 6 Q Now when you say "our applicant pool" I think you also 7 testified that most of the people who are admitted to the 8 University Michigan also applied to three -- are admitted at 9 three or four law schools? 10 A Yes. 11 Q And I assume then that means they probably applied to, 12 more than that? 13 A Each applicant -- I mean, it think it's fairly typical 14 for a law school applicant in today's world to apply to several 15 schools. I think it really varies. Some will apply to two or 16 three. Some will apply to seven or eight. But I think most 17 people apply to more than one school. Occasionally I'll talk to 18 somebody who will tell me I only applied to Michigan. But most 19 people apply to at least more than one school. 20 Q From your knowledge that the same people who apply to 21 Michigan applied to at least several other law schools, and 22 also from your general experience have you observed whether 23 that test score gap in the Michigan pool is a national 24 phenomenon or is that simply a Michigan phenomenon? 25 A I believe that's a national phenomenon. 259 1 Q And would it be fair to say that you have not done any 2 kind of studies as to what it might be that caused that test 3 score gap? 4 A That's correct. 5 Q What it might reflect? 6 A Yes. 7 Q Or what promise or lack of promis