UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BARBARA GRUTTER, for herself and all others similarly situated, Civil Action Plaintiff, No. 97-CV-75928 -vs- LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendants, and KIMBERLY JAMES, ET AL., Intervening Defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _/ VOLUME 5 BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN United States District Judge 238 U.S. Courthouse & Federal Building 231 Lafayette Boulevard West Detroit, Michigan MONDAY, JANUARY 22ND, 2001 APPEARANCES: FOR PLAINTIFF: Kirk O. Kolbo, Esq. R. Lawrence Purdy, Esq. GRUTTER -vs- BOLLINGER, ET AL 2 1 2 APPEARANCES (CONTINUING) 3 FOR DEFENDANTS: John Payton, Esq. 4 Craig Goldblatt, Esq. On behalf of Defendants 5 Bollinger, et al. 6 George B. Washington, Esq. 7 Miranda K. S. Massie, Esq. On behalf of Intervening 8 Defendants 9 10 COURT REPORTER: Joan L. Morgan, CSR Official Court Reporter 11 12 13 14 Proceedings recorded by mechanical stenography. Transcript produced by computer-assisted 15 transcription. 16 17 18 19 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL 3 1 2 3 I N D E X _ _ _ _ _ 4 5 WITNESS: Page _______ ____ 6 WITNESSES PRESENTED ON BEHALF OF DEFENDANT 7 KENT SYVERUD 8 Direct Examination by Mr. Kessler 7 9 Cross-Examination by Mr. Purdy 55 Redirect Examination by Mr. Kessler 80 10 JEFFREY LEHMAN 11 Direct Examination by Mr. Payton 88 12 Cross-Examination by Ms. Massie 156 Cross-Examination by Mr. Purdy 168 13 14 15 16 E X H I B I T S _ _ _ _ _ _ _ _ 17 18 MARKED RECEIVED ______ ________ 19 Exhibit Number 153-155 22 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL 4 1 Detroit, Michigan 2 Monday, January 22, 2001 3 9:00 a.m. 4 _ _ _ 5 (Court in session.) 6 THE COURT: You may be seated. Good 7 morning all. 8 MS. MASSIE: Good morning. 9 THE COURT: Good morning. 10 MS. MASSIE: Your Honor, I have got a 11 couple of scheduling things for you. 12 THE COURT: Good, I was going to talk 13 to you guys about scheduling. 14 MS. MASSIE: I have already talked to 15 both Mr. Kolbo and Mr. Payton about all of the 16 above, all of what follows, I should say. 17 THE COURT: Great. 18 MS. MASSIE: Tomorrow we're looking 19 at Gary Orfield and two students Agnes Aleobua and 20 Erika Dowdell. On Wednesday we're looking at 21 John Hope Franklin and Jay Rosner. 22 And, Judge, we have had a great deal 23 of difficulty with our out of town people setting up 24 a full day on Thursday. 25 THE COURT: You want to go Thursday GRUTTER -vs- BOLLINGER, ET AL 5 1 off and start it when we get back? 2 MS. MASSIE: That would be great. 3 THE COURT: It's up to you guys. I 4 was going to ask you about Thursday, maybe breaking 5 a little bit early, you know, like 4:00. I mean 6 it's up to you. 7 I mean things are moving so nicely 8 and so forth. That's okay with everybody, we'll 9 take Thursday off and then we'll reconvene on I 10 think it's the 6th. Is that what it is? 11 MS. MASSIE: Yes, the 6th. 12 THE COURT: Good, no problem. 13 MS. MASSIE: Fantastic, thanks a lot. 14 THE COURT: Okay. 15 MS. MASSIE: Two other quick things. 16 First, we'll have the demonstrative exhibit which 17 will all be based on things that are already in the 18 record for Professor Orfield to both the Defendant 19 and the Plaintiff by later on today at some point. 20 And on tomorrow, this hasn't been put 21 on the record yet, but there's been some talk about 22 sequestering fact witnesses. 23 I would like to make some 24 designations for the organizations I represent, and 25 I also had a special request on behalf of one of the GRUTTER -vs- BOLLINGER, ET AL 6 1 law students who would like to come. She probably 2 won't be called as a witness, she would like to 3 come. 4 I didn't have a chance to raise this 5 to counsel before you took the bench. Maybe we can 6 talk about it after the break. 7 But there's a fact witness who, I 8 think, will be called, or who could conceivably be 9 called who is not an organizational representative 10 and who would like to be able to attend the 11 proceedings tomorrow. 12 THE COURT: Why don't you talk about 13 it, I don't think that that would be a problem. I 14 don't think anybody should have any problems. The 15 fact witnesses here are such that--it's not like in 16 a criminal case where fact witnesses are subjected 17 to lots of other kind of things. 18 So talk about it. If there's any 19 difficulty, let me know. But I don't think there 20 should be a problem for any fact witness who really 21 wants to sit here. 22 But there may be a specific reason 23 why one counsel would note why they shouldn't. But 24 other than that, I don't think that's a problem. 25 MS. MASSIE: Thanks. GRUTTER -vs- BOLLINGER, ET AL 7 1 MR. KESSLER: With that the law 2 school calls Kent Syverud as its next witness. 3 THE COURT: Good. It's good to see 4 what he looks like, we have spoke on the phone so 5 many times. 6 I have disclosed that I have sent you 7 many, not many, but a few cases to mediate for us 8 and what a great job you have done. But I don't 9 think we have ever really met. 10 KENT SYVERUD, 11 was thereupon called as a witness herein and, after 12 having been first duly sworn to tell the truth, the 13 whole truth and nothing but the truth, was examined 14 and testified as follows: 15 DIRECT EXAMINATION 16 BY MR. KESSLER: 17 Q. Good morning, Dean Syverud. 18 A. Good morning. 19 Q. Would you tell us your full name for the record, 20 please? 21 A. Kent Syverud. 22 Q. Where do you work? 23 A. I work at the Vanderbilt University Law School in 24 Nashville, Tennessee. 25 Q. And what position do you hold at Vanderbilt Law GRUTTER -vs- BOLLINGER, ET AL 8 1 School? 2 A. I'm the dean of the law school and I am a professor 3 of law. 4 Q. What are your responsibilities as dean and as a 5 professor of law? 6 A. I teach courses, I teach civil procedure negotiation 7 and some other courses. I am the dean of the law 8 school, which means responsible for stewarding all 9 the administration of the school and the faculty. 10 And also have some responsibilities in the 11 university at large. 12 Q. Do you have responsibilities with law school alumni? 13 A. Yes. 14 Q. What are those, just very briefly? 15 A. Mostly responsible for relations with the alumni, 16 including fund raising and strategic planning for 17 the school. 18 Q. How many students does the Vanderbilt Law School 19 have? 20 A. 550. 21 Q. How many employees? 22 A. About 125. 23 Q. Are you involved in admissions to any degree? 24 A. The dean of Admissions report to me. 25 Q. Is it typical for a law school dean to carry the GRUTTER -vs- BOLLINGER, ET AL 9 1 teaching load that you do? 2 A. Yes. 3 Q. And why have you chosen to do that? 4 A. Teaching is the most important thing I do and I 5 enjoy it. 6 Q. Why don't you tell us about your educational 7 background beginning with college? 8 A. I attended Georgetown University in Washington, D.C. 9 and graduated in 1977 with a degree in foreign 10 service from a foreign service school. 11 I then attended the University of 12 Michigan both for law school and for graduate school 13 in economics. I got my law degree at Michigan in 14 1981, and my graduate degree in economics and 15 master's degree in 1983. 16 Q. Were you on the Law Review at Michigan? 17 A. Yes, I was. 18 Q. What position did you have? 19 A. I was the entering chief. 20 Q. Did you earn any honors or awards while you were a 21 student at Michigan Law School? 22 A. Yes, I did. 23 Q. Tell us those, please? 24 A. I was chosen for the Henry M. Bates Award, which is 25 award for the outstanding graduate in the senior GRUTTER -vs- BOLLINGER, ET AL 10 1 class. I won various awards in courses for having 2 the best performance in various courses. 3 Q. How does one earn the Henry M. Bates award? 4 A. I believe it's voted by the faculty. 5 Q. And did you graduate magnum cum laude for the 6 Michigan Law School as well? 7 A. I did. 8 Q. Now, you made reference to being in the graduate 9 school at Michigan in economics, tell us about that? 10 A. I was in the joint degree program in law and 11 economic at Michigan, and I finished my master's. 12 Started during law school, and finished it after I 13 graduated and emphasized public finance and 14 industrialization organization. 15 Q. Just to be clear, you then were working on a 16 master's degree in economics while you were in law 17 school? 18 A. Yes. 19 Q. Some would think of that as being at glutton for 20 punishment. 21 A. I enjoined it. 22 Q. Let's talk about your employment after you completed 23 your formal education. What did you do after you 24 graduated from Michigan and you earned your law 25 degree? GRUTTER -vs- BOLLINGER, ET AL 11 1 A. I became a law clerk for Judge Overdorf in the 2 United States District Court for the District of 3 Columbia from '83 to '84. 4 And then I was a law clerk at the 5 Supreme Court of the United States for Justice 6 Sandra Day O'Connor. 7 And then I stayed home with my first 8 born child for a while, and then I started practice 9 at Wilmer, Cutler and Pickering in Washington, D.C. 10 for two years. 11 And in 1987, left Wilmer Cutler to 12 become a faculty member at Michigan Law School. 13 Q. What attracted you to teaching law? 14 A. After I graduated from law school and before I 15 graduated from graduate school, I worked as a legal 16 writing instructor for a year part-time at Michigan 17 and enjoyed it a great deal. 18 And I had professor at Michigan 19 Alan Smith who kept pestering me and telling me I 20 would be a better teacher than I was a lawyer. 21 Q. And he persuaded you that he was right? 22 A. He did. 23 Q. When you got to Michigan and started teaching, what 24 courses did you search over that ten year period? 25 A. I always taught civil procedure to first year GRUTTER -vs- BOLLINGER, ET AL 12 1 students. I taught complex litigation. I taught 2 insurance law fairly consistently. I taught 3 negotiation in drafting. 4 And occasional short courses in 5 ethics, professional responsibility, judging law, in 6 fact, and different subjects each year. 7 Q. Did you hold any administrative positions at any of 8 the time that you were at the Michigan Law School? 9 A. Well, the last two years I was on the faculty of 10 Michigan, I was the associate dean for Academic 11 Affairs. 12 Q. What were your responsibilities as associate dean 13 for Academic Affairs? 14 A. They were whatever responsibilities were assigned by 15 the dean. It was essentially a position as chief 16 academic officer under the dean. And include some 17 responsibility for curriculum, some for teaching and 18 quality of teaching. 19 It included course assignments in 20 dealing with most problems that came up involving 21 faculty and students. Relations between faculty and 22 students. 23 Q. During that time did you have occasion to work with 24 new and even experienced teachers on the quality of 25 teaching? GRUTTER -vs- BOLLINGER, ET AL 13 1 A. At the law school? 2 Q. Yes. 3 A. Yes. If there was a faculty member in trouble with 4 teaching for various reasons, I usually dealt with 5 it. And I was the law school's representative on 6 the board of the Center for Research Learning and 7 Teaching. 8 Q. Why were you willing to take on the administrative 9 position of assistant dean? 10 A. I cared about the school a lot, it paid more than a 11 regular faculty member got. And I figured given my 12 compulsiveness on some of the subjects involved in, 13 particularly the teaching side of Academic Affairs, 14 I would end up doing it whether I had the title or 15 not. So I wanted to do it. 16 Q. Now, you have told us that you have been employed 17 years ago at Wilmer, Cutler & Pickering, and that 18 you were ten years employed at the University of 19 Michigan Law School, do those prior associations 20 affect to any degree at all, your ability to offer 21 completely candid and honest testimony in this case? 22 A. I don't think so. 23 Q. Is there any doubt in your mind about that? 24 A. No. 25 Q. Why did you go on to Vanderbilt, why did you leave GRUTTER -vs- BOLLINGER, ET AL 14 1 Michigan and go there? 2 A. I was offered the deanship at Vanderbilt and had not 3 planned on moving from Ann Arbor ever. It seemed 4 like an interesting opportunity for me and for my 5 whole family. And it's a smaller school and seemed 6 attractive for that reason. 7 Q. Have you taught at any law schools other than 8 Michigan and Vanderbilt? 9 A. Yes. 10 Q. Tell us about your other law school teaching? 11 A. I have taught as a visiting faculty member at the 12 University of Pennsylvania Law School in the spring 13 term of 1997, insurance law and negotiation in 14 drafting. 15 I have been a visiting professor at 16 the University of Tokyo Law School for the May term 17 in either 1992 or 1993. 18 I have taught most summers in the 19 last ten years at various universities and centers 20 in Germany. 21 Q. Now, how did you happen to do the teaching at Penn? 22 A. The dean of the Penn Law School called and I made a 23 visit. 24 Q. How did you wind up teaching at the University of 25 Tokyo? GRUTTER -vs- BOLLINGER, ET AL 15 1 A. The Michigan Law School and the Tokyo faculty of law 2 and politics have an exchange relationship, whereby 3 professors go back and forth. And dean at Tokyo and 4 the dean at Michigan arranged that and asked me to 5 teach there one summer. 6 Q. And how did you happen to teach almost every summer 7 over the past ten years in Germany? 8 A. That is a program arranged by the German American 9 Bar Association in Germany and various universities 10 and a foundation in Germany. 11 And its always got a stronger 12 affiliation with a particular professor who is on 13 the Michigan faculty who asked me to come one of the 14 early years, and I went and taught American civil 15 process. And then they just asking me to come back. 16 Q. They liked what you did? 17 A. Yes. 18 Q. Have you ever received any awards for teaching law? 19 A. Yes. 20 Q. Tell us about those, if you would? 21 A. There's an award for teaching voted by the student 22 body at Michigan called the Al Hartwright 23 outstanding teacher award. That's named after 24 Al Hartwright who was a great tax teacher and 25 professor at Michigan, and I was awarded that twice GRUTTER -vs- BOLLINGER, ET AL 16 1 while I was teaching at Michigan. 2 And in my first year at Vanderbilt, 3 built there's a similar award, the Paul Hartman 4 Award, outstanding teaching award that the student 5 body votes there. And I was awarded my first year 6 teaching at Vanderbilt. 7 Q. Have you published any articles on teaching law? 8 A. Yes. 9 Q. Tell us about that? 10 A. I have one article entitled Taking Students 11 Seriously, that's a guide for new law teachers that 12 is published in the Journal of Legal Education. 13 I have written an annotated 14 bibliography for law teachers that's been put out as 15 a pamphlet and its materials by the American 16 Association of Law Schools. 17 Q. What is contained in the bibliography? 18 A. It's an annotated survey of books and articles about 19 law school teaching back 50 to a hundred years, not 20 much back that far. But what the subject matter is 21 and commentary on it, and its helpfulness. 22 Q. And you made reference to the American Association 23 of Law Schools, just explain to Judge Friedman and 24 the rest of us what that is? 25 A. It's a professional association of law schools, GRUTTER -vs- BOLLINGER, ET AL 17 1 about 180 American law schools. It's an 2 organization that organizes the annual conference of 3 law professors and that oversees professional 4 development programs for law professors. 5 Q. What does the standing of the American Association 6 of Law Schools say in the academic community 7 nationally? 8 A. To the extent there's an academic association for 9 law professors, it is the equivalent of the American 10 Economic Association for economists. 11 Q. Changing gears just a little bit. Have you served 12 as editor of any publications that deal with the 13 teaching of law? 14 A. Yes. 15 Q. What have you done? 16 A. I'm the editor of, co-editor with a colleague of the 17 Journal of Legal Education. 18 Q. And who publishes that? 19 A. That is the professional journal of the American 20 Association of Law Schools. 21 Q. About how many manuscripts do you have to read in a 22 year to do your work properly as editor? 23 A. About 200. 24 Q. Is it likely that there are many manuscripts that 25 are developed concerning the teaching of law that GRUTTER -vs- BOLLINGER, ET AL 18 1 you wouldn't reach in the course of a year? 2 A. No. There would be very few. 3 Q. Have you made any presentations around the country 4 about how to teach law? 5 A. Yes. 6 Q. What have you done in that regard? 7 A. I for ten years almost every year, I taught at the 8 New Law Teachers Conference, which is an annual 9 conference for people entering the legal teaching 10 profession in various capacities. 11 Giving an opening address, closing 12 address, being a discussion leader or a lecturer. I 13 have taught experienced law teachers at the 14 occasional conferences that are held for experienced 15 law teachers explicitly on law teaching. Of which 16 there's another one coming this summer which I'm 17 speaking at. 18 And I have spoken, when requested, to 19 various law faculties and non-law faculties in the 20 United States. 21 Q. Tell us some the law faculties that you have 22 addressed? 23 A. I led the faculty retreat on law teaching at the 24 Notre Dame Law School, I think that was in 1998. 25 I've been asked by Wake Forest University Law School GRUTTER -vs- BOLLINGER, ET AL 19 1 to lead their retreat and talk to them about law 2 teaching, in the future of law teaching next month. 3 I have spoken to the University of 4 South Dakota university faculty, including the law 5 faculty on teaching. I think that's all I can 6 recall. 7 Q. That's good. Are you working on a book? 8 A. Yes. 9 Q. What is the book? 10 A. Well, I'm working on two books. One is a guide book 11 for insurance defense counsel. And one is a book 12 entitled Teaching Across a Career. 13 Q. And what is the latter book about? 14 A. It's a book about the fact that most advice for 15 teachers is less helpful for the experienced 16 teachers, because it assumes that teaching is 17 something you learn once like riding a bicycle and 18 then you've got it and never need to change or grow. 19 Q. And you find that it isn't like learning to ride a 20 bicycle? 21 A. No, I don't find it like riding a bicycle. 22 Q. What is it like? 23 A. I teach civil procedure, it's like preparing for a 24 different summary judgment motion everyday in a 25 different area of substantive law. GRUTTER -vs- BOLLINGER, ET AL 20 1 Q. Well, that would be challenging? 2 A. Yes. 3 Q. Are you doing some work with the Carnegie Foundation 4 as we speak? 5 A. Yes. 6 Q. Would you tell us what you're doing with the 7 Carnegie gee foundation? 8 A. The Carnegie Foundation for the advancement of 9 teaching is a nonprofit organization in the United 10 States, that's the most rigorous in paying attention 11 to teaching methods and their improvements, and has 12 been that way for many years. 13 It has a project on teaching across 14 the professions, which at the moment is attempting 15 to identify the state of the art of teaching in 16 profession schools, law, medicine, business, 17 engineering and divinity. 18 And their first year of their study 19 last year was law schools. And I worked with the 20 professionals working on that study including Judith 21 Wagner in helping them identify a cross section of 22 American law schools to visit for a three day 23 periods each. 24 And they visited Vanderbilt as part 25 of that, and spent four days evaluating teaching at GRUTTER -vs- BOLLINGER, ET AL 21 1 Vanderbilt Law School. 2 Q. Is this project a result in a report? 3 A. Yes, it is. 4 Q. And when is that expected? 5 A. It was expected several months ago, it has not come 6 out yet. I'm not in charge or responsible for 7 writing the report. 8 Q. So the answer is anytime now? 9 A. Yes, any week now. 10 Q. Are you involved in something called the Advisory 11 Board for the Center of Teaching at Vanderbilt? 12 A. Yes. 13 Q. What is that? 14 A. Vanderbilt has an education school, Peabody's 15 College which is very good and separate from that. 16 But connected to it is a center for teaching which 17 focuses across the university on the quality of 18 teaching in the various schools of the university. 19 And it put on programs, professional 20 development programs for faculty at Vanderbilt and 21 graduate students. And it also addresses problems 22 of substandard performance and evaluation of 23 teaching. 24 Q. Now, you were asked to serve as an expert witness in 25 this case on behalf of the Michigan Law School, is GRUTTER -vs- BOLLINGER, ET AL 22 1 that right? 2 A. In 1997, I think, yes. 3 Q. And did you prepare expert reports in connection 4 with your work? 5 A. Yes. 6 Q. I think you have documents that have been marked 7 Exhibits 153 through 155 right there in the witness 8 box, am I right about that? 9 A. Yes. 10 Q. Tell me what Exhibit 153 is? 11 A. It is the expert, the first expert report I wrote. 12 Q. And what date does it bear? 13 A. December 15, 1998. 14 Q. What is Exhibit 154? 15 A. It is the first supplemental expert report I wrote. 16 Q. What is the date of Exhibit 154? 17 A. February 25, 2000. 18 Q. And what is Exhibit 155? 19 A. It is the second supplemental expert report I wrote. 20 MR. KESSLER: Your Honor, we offer 21 all three exhibits at this time. 22 MR. PURDY: Your Honor, we would 23 object on relevance grounds. 24 THE COURT: You've got to speak up, 25 Mr. Purdy. GRUTTER -vs- BOLLINGER, ET AL 23 1 MR. PURDY: I apologize. We will 2 object on relevance ground for the reasons we set 3 forth in our earlier motion. Which we believe are 4 directed precisely on the issue of diversity, which 5 is not a factual issue before the court. We object 6 on relevance. 7 MR. KESSLER: Well, our position is 8 just the same, your Honor, as we will develop this 9 morning. These reports concern the issue of 10 critical mass in particular, which has been a 11 subject of constant inquiry by the Plaintiff 12 throughout the trial, and an issue of constant 13 inquiry by the law school. 14 THE COURT: Well, we call the dean, 15 we had some discussion and the defense had indicated 16 they were not calling him as expert, or as the 17 witness in the issue of diversity and that's why 18 we're here today. 19 I'll admit them for the same reason I 20 have admitted a lot of other things. First of all, 21 I have read them all because they have all been 22 attached to the motions for summary judgment in this 23 matter, so there's no secret what they have to say. 24 The relevance, I think that much of 25 it is not relevant to the issues that we're trying GRUTTER -vs- BOLLINGER, ET AL 24 1 here today. But it's just as easy to admit them and 2 give them weight if they need some. 3 MR. KESSLER: Thank you. 4 BY MR. KESSLER: 5 Q. Are you being compensated for your services as an 6 expert in the case? 7 A. I am being reimbursed for my expenses of coming out 8 here. 9 Q. Are you being paid a fee? 10 A. No. 11 Q. Have you testified as an expert in any other cases? 12 A. Yes, I have. 13 Q. Just generally, what have you been involved in? 14 A. All of them have been insurance cases, mostly 15 insurance coverage cases. Particularly concerning 16 insurance coverage of various tort liabilities. 17 Q. And about how many times have you testified as an 18 expert? 19 A. I think I have been deposed eight times to ten times 20 in fourteen years of teaching. And I testified in 21 court three or four times. 22 Q. Now, Judge Friedman has made reference to this 23 previously and again this morning. 24 Have you served as a court appointed 25 expert in the past? GRUTTER -vs- BOLLINGER, ET AL 25 1 A. Yes, I have. 2 Q. Tell us what you have done, just in a general way? 3 A. In Tennessee I have been appointed as a mediator in 4 insurance coverage disputes. In Michigan I have 5 been appointed, including in this court, to--I'm not 6 sure if it's as a mediator or court appointed 7 expert, to attempt to reach settlement of insurance 8 dispute and reinsurance disputes between insurance 9 companies and insurers. 10 Q. Insurance law is one of your substantive areas of 11 expertise? 12 A. Yes, it is. 13 Q. What is the subject of your original expert report 14 in this case? 15 A. It was prepared two years ago and it was on the 16 effect of having meaningful numbers of minority 17 students on the quality of the pedagogy in the law 18 school. 19 Q. What was your general conclusion? 20 A. As the last paragraph of the report says it was--my 21 general conclusion is, still is my conclusion is 22 that a law school without significant representation 23 of minority students in the student body, will 24 provide a significantly poorer education than one 25 that is blessed by such representation. GRUTTER -vs- BOLLINGER, ET AL 26 1 And that in particular lawyers 2 trained in racially homogeneous law schools will be 3 ill equipped to serve the functions that the best 4 lawyers have to serve in society. 5 MR. PURDY: Excuse me, your Honor, I 6 don't want to stand up and be interrupted, but may I 7 just have a standing objection to any testimony that 8 relates to the benefits of diversity. 9 Because as we said, we're not 10 contesting that issue, and I believe what he just 11 recited is precisely on that subject. 12 THE COURT: You have a standing 13 objection. And, Mr. Kessler, I'm going to give you 14 some leeway because I think it's necessary, but try 15 to stick to the issues. 16 MR. KESSLER: I appreciate that. 17 What is going to be developed here is that-- 18 THE COURT: That's fine. I'm going 19 to give you some leeway. 20 MR. KESSLER: Fine, okay. 21 BY MR. KESSLER: 22 Q. The first supplemental report, what was that about? 23 A. That was the one a year ago, it was about--there was 24 empirical research that occurred subsequent to my 25 first report on faculty and student views on the GRUTTER -vs- BOLLINGER, ET AL 27 1 effect of significant numbers of minority students 2 in the law school classroom. And it was how that 3 new research effected my earlier opinions. 4 Q. And how did it effect your earlier opinion? 5 A. It confirmed some of them. 6 Q. What about the second supplemental report, the one 7 that you prepared and we filed recently, what was 8 that about? 9 A. That was in the last two weeks, and that was you 10 provided me the Raudenbush study which was much more 11 specifically concerned with the admissions policies 12 at the University of Michigan Law School, and the 13 effect of those policies on racial composition of 14 the class in various settings. 15 And the supplemental report is how 16 that would have effected or did effect my original 17 opinions. 18 Q. What was the overall conclusion that you reached in 19 this second supplemental report? 20 A. I concluded that the positive effects of a racially 21 heterogeneous class that I described in any original 22 report, would be achieved under the existing 23 admissions policy at the University of Michigan, and 24 would be unlikely to be achieved under an admissions 25 policy that did not consider race as a factor in GRUTTER -vs- BOLLINGER, ET AL 28 1 admissions. 2 Q. Let's talk now about the basis of your overall 3 opinions. Tell us what those basis are? 4 A. Well, I have taught law for fourteen years every 5 semester pretty much in various settings. And when 6 I say various settings, I mean not just in different 7 countries or different law schools, but in settings 8 that are small classes, very large classes, classes 9 that are racially heterogenous. Classes that are 10 not diverse in other senses. 11 With no old people, for example, or 12 older people. Or classes with all people of one 13 ethnic background, particularly in Germany. 14 And I have talked to many of the law 15 professors over the years about how the diversity in 16 the class effects the dynamic in the Socratic 17 classroom and in the classroom teaching in the skill 18 setting, particularly negotiation. 19 And as I said, I have pretty much 20 read everything that's been written on law teaching 21 in the last 50 to a hundred years. 22 And so my opinions are based on 23 everything that I have done and everything that I 24 have read having to do with the law classroom. 25 Q. Are your opinions also based on part in law classes GRUTTER -vs- BOLLINGER, ET AL 29 1 that you have observed, but not yourself taught? 2 A. Yes. 3 Q. How has that come about? 4 A. I have watched a lot of law classes taught, most 5 recently as an accreditor of law schools. And part 6 of the accreditation process includes a visit to the 7 school and an obligation to attend a cross section 8 of classes being taught in the school. 9 And so in the last year I've done the 10 accreditation visits for the University of Oregon 11 Law School, and the George Washington University Law 12 School. And in each school attended a large number 13 of classes across the curriculum. 14 Q. I have attended a lot of classes that's part of the 15 peer review or the tenure review process, or renewal 16 process for faculty at each of the institutions I 17 have taught at, and including when I was at the 18 University of Pennsylvania as a visitor. 19 And occasionally when I'm giving a 20 paper or talking in other law schools, I attend 21 classes as part of that. 22 Q. Do you have a reliable estimate of the number of 23 students that you have taught in the last 14 years? 24 A. Yes. 25 Q. Tell us what that is? GRUTTER -vs- BOLLINGER, ET AL 30 1 A. I have taught about 2500 students, law students in 2 the United States. And another 500 in Germany. 3 Q. Now, you indicated that you have been involved in 4 classes both as a teacher and as an observer that 5 had various levels of, not only general diversity, 6 but racial and ethnic diversity, is that right? 7 A. Yes. 8 Q. You have taught classes where there have been 9 virtually no minority students? 10 A. I've taught students in which there are no minority 11 students. 12 Q. And where there have been very limited numbers of 13 minority students? 14 A. Yes. 15 Q. And also where, in your judgment, there have been 16 meaningful numbers of minority students, is that 17 right? 18 A. Yes. 19 Q. And these differing diversity levels have, at least, 20 in times involved teaching the same subject matter, 21 is that right? 22 A. That's correct. 23 Q. What has the subject matter been? 24 A. Civil procedure, insurance and negotiation. 25 MR. KESSLER: Your Honor, at this GRUTTER -vs- BOLLINGER, ET AL 31 1 time we offer Dean Syverud as an expert on legal 2 education. 3 MR. PURDY: Your Honor, we have no 4 objection and do not doubt Dean Syverud's expertise 5 on legal education. 6 But I think just from what we have 7 heard, again, this is going to a subject that 8 everything we've heard this morning, going to a 9 subject that has nothing to do with the issue that's 10 before this court. 11 THE COURT: It appears that's 12 correct, Mr. Kessler. And again, I certainly 13 believe that he's an expert in that area, but I'm 14 not sure what relevance that area has. But I'll 15 give it a little-- 16 MR. KESSLER: (Interposing) We're 17 getting right to the heart of it. 18 THE COURT: Get right to the heart of 19 it. 20 MR. KESSLER: This is background that 21 I think the Court needed-- 22 THE COURT: (Interposing) Diversity 23 isn't the issue here. 24 MR. KESSLER: Right. 25 GRUTTER -vs- BOLLINGER, ET AL 32 1 BY MR. KESSLER: 2 Q. We're going to talk now about critical mass, 3 Dean Syverud, and in that context I want to read to 4 you from Exhibit 4. Exhibit 4 is the 1992 Michigan 5 Law School policy that is being challenged here. 6 At the bottom of page nine of that 7 policy of Exhibit 4, it reads, "The second sort of 8 justification for admitting students with indices 9 relatively far from the upper right-hand corner, is 10 that this may help achieve that diversity which has 11 the potential to enrich everyone's education and 12 thus make a law school stronger than the sum of its 13 parts. 14 In particular we seek to admit 15 students with distinctive prospectives and 16 experiences, as well as students who are 17 particularly likely to assume the kinds of 18 leadership roles in the bar, and make the kinds of 19 contributions to society discussed in the 20 introduction of this report. 21 We reiterate, however, that no 22 student should be admitted unless his or her file as 23 a whole leads us to expect him or her to do well 24 enough to graduate without serious academic 25 problems." GRUTTER -vs- BOLLINGER, ET AL 33 1 And then on page twelve of Exhibit 4 2 continuing with the quote. "There is, however, a 3 commitment to one particular type of diversity that 4 the law school has long had and which should 5 continues. 6 This is a commitment to racial and 7 ethnic diversity with special reference to the 8 inclusion of students from groups which have been 9 historically discriminated against like African 10 Americans, Hispanics and Native Americans, who 11 without this commitment might not be represented in 12 our student body in meaningful numbers. 13 These students are particularly 14 likely to have experiences and prospectives of 15 special importance to our mission. 16 Over the past two decades, the law 17 school has made special efforts to increase the 18 numbers of such students in the school. 19 We believe that the racial and ethnic 20 diversity that has resulted as made the University 21 of Michigan Law School a better law school than it 22 could possibly have been otherwise. 23 By enrolling a "critical mass" of 24 minority students, we have ensured their ability to 25 make unique contributions to the character of the GRUTTER -vs- BOLLINGER, ET AL 34 1 law school, the policies embodied in this document 2 should ensure that those contributions continue in 3 the future." 4 Do you see that language? 5 A. Yes. 6 Q. Were you on the University of Michigan Law School 7 faculty when this policy was adopted in 1992? 8 A. Yes. 9 Q. Did you vote on whether or not the policy should be 10 adopted? 11 A. Yes. 12 Q. How did you vote? 13 A. I voted for it. 14 Q. Did you believe that you understood the policy when 15 it was adopted in 1992? 16 A. Yes. 17 Q. What was your general understanding of the term 18 critical mass as used in the policy? 19 A. My general understanding was it meant that there 20 would be meaningful numbers of minority students, 21 and particularly African American and Hispanic 22 students, so as to achieve pedagogical objectives in 23 the classroom. 24 Q. Now, I understand, and we're not going to dwell on 25 this, that initially prior to this policy at least, GRUTTER -vs- BOLLINGER, ET AL 35 1 you were skeptical about admissions policies like 2 Michigan's that considered race. 3 Did the inclusion of the reference to 4 critical mass in the 1992 policy help you change 5 your view? 6 A. Yes. 7 Q. Tell us in what way critical mass effected you're 8 thinking? 9 A. I mean I have to say that I didn't understand the 10 word critical mass to have a huge significance 11 separate from its reference, the back reference to 12 meaningful numbers in the paragraph above. 13 And it meant to me, and still means 14 to me, that something different than attempting 15 through social engineering to change society, which 16 was not a reason for me to support or believe in 17 this document. 18 It meant, instead, a direct 19 relationship for me to what happens in the law 20 school classroom, and whether I can make the law 21 school classroom work as best as it can. 22 And critical mass for me, or 23 meaningful numbers means that the dynamic in the law 24 school classroom is different depending on the 25 degree to which there are meaningful numbers of GRUTTER -vs- BOLLINGER, ET AL 36 1 minority students in the classes I teach. 2 Q. Do some of the conclusions that you have rendered as 3 an expert in this case, bear on the critical mass 4 question? 5 A. Some do. 6 Q. All right. Tell us just in a general way what those 7 conclusions are? 8 A. I mean my original report was prepared when--I 9 gather the issues in this case were different, and I 10 gather they have been narrowed and I haven't been 11 following all the legal developments in the case 12 closely, I apologize. 13 Q. Understood. 14 A. It's not covered extensively in Nashville, I'm happy 15 to say. So, you have told me a little bit in the 16 last 24 hours about what the issues in the case are 17 now. 18 And again, I would say that the 19 quoted critical mass phrase in the policy meant 20 little different to me at the time, than talking 21 about meaningful numbers of minority students in 22 various classroom settings that I teach in. 23 The critical mass or meaningful 24 numbers matters to my conclusion in this sense. I 25 teach and still teach in a very traditional Socratic GRUTTER -vs- BOLLINGER, ET AL 37 1 fashion, which involves I take the seating chart in 2 the class, I throw paper clips on it in front of the 3 students and I call on the students that the paper 4 clips fall on. 5 And I engage in a series of questions 6 and answers with the student, four to five students 7 most classes, based on the material assigned for 8 that day. 9 And my purpose in doing that is to 10 get a dialogue going in which the students question 11 deeply their assumptions and provoke other students 12 to see how many different angles there are in any 13 question that we address. 14 And the critical mass or meaningful 15 numbers issue is relevant to my conclusions, because 16 in my experience that dynamic is different within 17 the class among the students and between me and the 18 students, when the class is homogeneous. 19 When the class has a token minority 20 student or a token black student or to token 21 Hispanic student, and when there are enough minority 22 students, enough black students and enough Hispanic 23 students that there is a diversity of views and 24 experiences among the minority students, and among 25 the Hispanic and black students. GRUTTER -vs- BOLLINGER, ET AL 38 1 So, that everybody in the class 2 starts looking at people as individuals in their 3 views and experiences, instead of as races. 4 Q. Now, we're offering you today in large part to help 5 us all understand the concept of critical mass, and 6 yet I note that none of your reports uses that term, 7 why not? 8 A. I read this policy again for the first time in two 9 years yesterday. 10 Q. The law school policy? 11 A. The law school policy. And I hadn't until yesterday 12 viewed critical mass as having some meaning 13 independent of what I have just described. 14 As meaningful numbers of minority 15 students in the actual classroom settings that you 16 teach in. 17 Q. Were you writing about the concept of critical mass 18 in your reports? 19 A. In the sense I have described today as which--I mean 20 in the sense I have describe it in, are there enough 21 minority students in my class that they become 22 individuals rather than representatives of races in 23 the dialogue among students and with me. 24 Q. In your experience as an expert in legal education 25 in the various settings that you have described, do GRUTTER -vs- BOLLINGER, ET AL 39 1 you think that you can quantify in a specific way 2 what critical mass is? 3 A. No. 4 Q. Why not? 5 A. When you say critical mass or meaningful numbers of 6 minority students, what the meaningful part is to me 7 is, are there enough students say, for example, 8 African American students in a class such that each 9 of them, in fact, is and, in fact, acts freely to 10 express a diversity of views. 11 And to respond openly to the 12 questions I give, which are quite tense and 13 provocative at times. 14 And that number isn't the same number 15 or percentage in every class that I teach, it 16 depends in part on the individuals. 17 I have a class where an 18 individual--where it's enough to have one student, 19 because that one student is an extraordinary person, 20 but not many. 21 Q. If you can't quantify the term critical mass in a 22 reliable way, how do you know it when you have it? 23 A. I know when a class is working very well and when 24 it's flat from a lot of experience. And in my 25 experience law professors talk about precisely that, GRUTTER -vs- BOLLINGER, ET AL 40 1 year to year and class to class as things go on. 2 I know I have a critical mass of 3 students when in the dialogue I have with students 4 and they have with each other in the course of civil 5 procedure or negotiation or whatever I'm teaching, 6 over the course of the semester regardless of what 7 the issue is, people are speaking and reacting as 8 individuals. And often in very unexpected ways. 9 And it's just my experience that in a 10 class with one or two African American students, 11 that usually does not happen. 12 Instead usually, and again, it's my 13 experience, usually the African American students 14 are silent. Not that they never say anything when I 15 call on them, but they on numerous issues it's hard 16 because they don't want to be a spokes person for 17 their race. And in particular in some of the issues 18 I teach. 19 Q. If I'm understanding you correctly, you define 20 critical mass by the presence of certain dynamics 21 that you have seen as a law school professor, is 22 that fair? 23 A. Yes. 24 Q. Let's see if we can understand a little more clearly 25 what those dynamics are. You talk about students GRUTTER -vs- BOLLINGER, ET AL 41 1 feeling, at least, able to express themselves as 2 individuals, is that right? 3 A. Yes. 4 Q. Where critical mass is not present and there are 5 minorities present in the class, what tends to 6 happen if they're not silent? 7 A. Well, one or two things happens. One thing that 8 happens occasionally is that an African American or 9 a Hispanic student will express views on issues 10 raised by the facts of the cases that I'm teaching 11 that tend to be politically correct, expected views. 12 And it doesn't accomplish--when I'm 13 teaching particularly first year students, what I'm 14 trying to teach them is that they don't know what 15 people think in advance without asking and 16 listening. 17 Because law students are terrible 18 listeners and they are very bad at projecting onto 19 someone views and experiences and knowledge without 20 first finding out. 21 And I'm trying to teach particularly 22 litigators to listen first. And so it's a problem 23 when I want to provoke through my questioning, 24 students to see how every issue I'm teaching has 25 different points of view, and there are very strong GRUTTER -vs- BOLLINGER, ET AL 42 1 arguments and currently often unexpected arguments. 2 And that people from different 3 backgrounds will come to the same fact settings and 4 have very unexpectedly different points of view on 5 it. And so that requires quite a bit of probing and 6 pushing of individual students. 7 If I have a token African American 8 student who is by the dynamic of the classroom 9 articulating what is perceived as what that person 10 is supposed to say on a particular issue, it doesn't 11 help with that lesson. 12 I'd like to get a diversity of views, 13 naturally by randomly calling on people among all 14 the students in the class, so that the lesson is 15 thought that people are individuals. 16 And the token minority student 17 problem for reasons I confess I don't fully 18 understand, doesn't produce that. 19 Q. How does the presence of critical mass or its 20 absence in the presence of tokenism impact the 21 majority students in the class, that is the 22 Caucasian students? 23 A. Well, as I said in my report, I think they get a 24 much poorer education as a result. 25 Q. Why? GRUTTER -vs- BOLLINGER, ET AL 43 1 A. Because they often--I mean my majority students, 2 when white students have a vast range of 3 experiences. And when I call on my white students, 4 that lesson is often inevitable that they'll get 5 over the course of a semester's experience with the 6 white students. 7 Because my white students are always 8 diversed, there's many of them and they have many 9 experiences. And I have interesting and tough cases 10 that I'm teaching on, so the lesson is obvious to 11 them not to make assumptions they know everything 12 about every white student in the class by the fact 13 that they're white. 14 They don't learn that lesson 15 necessarily about other minority students, if there 16 isn't a range of minority students present. 17 Q. In your experience, is there's a relationship in the 18 classroom between having a critical mass of minority 19 students, and superficial thinking on the students 20 part, I mean? 21 A. On some questions, yes. 22 Q. Explain that? 23 A. Well, there are issues having to done with race in 24 all of my courses, they're usually more subtle and 25 most colleagues I talk with think or express. GRUTTER -vs- BOLLINGER, ET AL 44 1 They come up with unexpected ways in 2 all the courses I teach, and race is an issue in 3 American law and kind of suffuses lots of things, to 4 much I think. But it's there and I have to teach it 5 the way it is. 6 It is still to teach cases where race 7 is an issue in the case, which it often is, 8 including in insurance law. And have everybody 9 talking about the issue as if they're Margaret Meade 10 studying the Samoans. 11 I don't know how else to describe 12 than that. Everybody is trying to project onto this 13 other group of people who aren't there. 14 Q. In a way that has an unreality to it, is that what 15 you're suggesting? 16 A. Yes. 17 Q. Is there a reason, you made reference a number of 18 times to the Socratic method and your use of the 19 Socratic method in classes. 20 Is there a reason why having a 21 critical mass is especially significant in 22 connection with the Socratic method? 23 A. Yes. 24 Q. Explain that, if you would? 25 A. I mean there's a lot of lawyers present, the point GRUTTER -vs- BOLLINGER, ET AL 45 1 of the Socratic method is that the students learn as 2 much from each other as they do from the teacher. 3 And from the dialectic of watching 4 how the students respond to questions and 5 interacting--they learn from each other answers as 6 much as from the questions the professor ask, or 7 lectures from the professor. 8 And so the strength of the Socratic 9 method in part trends on active preparation and 10 engagement involvement in the students in the class. 11 And the quality of their answers is 12 often a function of the range of knowledge and 13 experience and background that the students bring to 14 bear in answering those questions. 15 And one relevant set of experiences 16 is related to race. It's not the only relevant set 17 of experiences that I value in a Socratic classroom, 18 but it is one. 19 Q. You have been discussing critical mass in the 20 context of particular dynamics that you see in the 21 classroom, and you don't see those dynamics when 22 it's not there. 23 Can you give us just one example of 24 what you have seen that would be a very positive 25 indicator that critical mass is present, versus what GRUTTER -vs- BOLLINGER, ET AL 46 1 you would have seen had it been absent? 2 A. Yes. And we discussed this yesterday. I taught 3 insurance law most years at Michigan, and for many 4 years I taught insurance law, including a couple of 5 years, to extremely homogeneous classes racially. 6 And taught in particular an issue in 7 law and economics that concerns whether a tort law 8 should provide damages for pain and suffering in the 9 context of the death of a child when the parents are 10 suing. 11 And there's a decent literature on 12 that question from economists in law and economics 13 that not only suggest that that should not be the 14 case, because parents don't choose of their own 15 volition to go out and by life insurance on their 16 children. 17 In hence, since in private markets 18 they don't choose to do that. It would be odd for 19 the legal system to provide it mandatorily in a pain 20 and suffering context. 21 And I taught that literature as part 22 of a discussion day in insurance law for several 23 years. 24 And then one year I taught the same 25 body of reading, and I had an African American woman GRUTTER -vs- BOLLINGER, ET AL 47 1 in my class, and that was a year that I had a what 2 we've been calling a critical mass of African 3 American students in my class, five I think. 4 But I had an African American student 5 interrupt me during class and say, I don't 6 understand, people do buy life insurance on their 7 children. 8 And I had a dialogue with that 9 student about her experience with child life 10 insurance, which I embarrassingly confessed I did 11 not know existed at that point. 12 And it turned out, and I discovered 13 through subsequent work in talking with other 14 professors and with sociologists, that, in fact, the 15 majority of children in the United States are 16 covered by child life insurance policies. 17 But child life insurance is something 18 pretty much, and at that point, entirely obviously 19 unknown to affluent parents. 20 And it's heavily phenomenon currently 21 among African American parents and it is heavily 22 bought. 23 And, of course, you know, then I 24 embarrassingly researched it and discovered it went 25 back a hundred years and is a central feature of the GRUTTER -vs- BOLLINGER, ET AL 48 1 Tree Grows in Brooklyn and various other contexts. 2 But I didn't know that. I had no 3 experience with it. Child life insurance was 4 something I didn't think existed because law 5 economic scholarships said it didn't exist. 6 And it led me subsequently to change 7 my teaching materials to include writing on child 8 life insurance, and changed kind of how I looked at 9 life insurance in the classroom. 10 THE COURT: And you changed that only 11 because you had African American students in your 12 class? 13 A. It's hard to say. I mean it is an African American 14 student that bought it up. 15 THE COURT: That raised it. 16 A. So it's hard to say if that would have happened 17 otherwise. I don't know. 18 BY MR. KESSLER: 19 Q. But as a follow-up to the Court's question, do you 20 believe that based on your experience this African 21 American student would have felt comfortable 22 interrupting you and raising this point, that in 23 turn, promoted the discussion and the other changes 24 that you have described? 25 MR. PURDY: Your Honor, I have to GRUTTER -vs- BOLLINGER, ET AL 49 1 object. 2 THE COURT: Sustained. 3 BY MR. KESSLER: 4 Q. Can't a good law professor make up for the lack of 5 racial diversity in a classroom where there isn't a 6 critical mass present? 7 A. I think a good law professor could try, and I have 8 in various settings. And I haven't succeeded. 9 Q. Have you discussed this point with your colleagues? 10 A. Yes. 11 Q. And what is your view based on those discussions, is 12 this just a problem that you have, or is this a 13 general problem? 14 A. Well, it's not a general problem at the moment, 15 because most law schools right now have what we 16 describe as a critical mass of minority students. 17 The context I discussed today is 18 particularly discussing with the people I teach with 19 in Germany, where the classes I teach are extremely 20 homogeneous, very bright students, all German 21 obviously and all of German nationality. 22 And it is a problem, because teaching 23 American case law to Germans, a lot of it is 24 incomprehensible. Not because the doctrine is 25 incomprehensible, but because the underlined facts GRUTTER -vs- BOLLINGER, ET AL 50 1 and issues are different. 2 And I have tried to recreate the 3 dynamic of a diverse Socratic classroom for those 4 students, by myself asserting the views that I think 5 a diverse group of, say, African American students 6 would assert, or a diverse group of older students. 7 Because many of the students in 8 Germany tend to be in the same age group. And it 9 just doesn't work well. The professor is lecturing 10 instead of the students--drawing it out of the 11 students own experiences. 12 Q. You have said both in your report and today, that 13 you really can't achieve this array of viewpoints 14 and deep thinking that you have talked about without 15 having racial diversity to a meaningful degree, or a 16 critical mass in the classroom. 17 Isn't that just a way of saying that 18 race is a proxy for viewpoint? 19 A. That's what I would have thought when I started 20 teaching, and that's what I found and really did 21 find affirmative action policies troubling and 22 patronizing to some degree. 23 And as I have suggested by my 24 testimony, considering race in admissions in order 25 to get a particular viewpoint--a particular GRUTTER -vs- BOLLINGER, ET AL 51 1 designated approved viewpoint into the classroom is 2 what worried me about race and admissions. 3 And continues to, in my view, be an 4 inappropriately wrong basis for this kind of policy. 5 I don't view it that way now after teaching for 6 fourteen years, and I guess it's based on my 7 experience in the classroom that I don't view it 8 as--that's not how I view it. 9 I view it as basis for in some way 10 doing the opposite, which is educating future 11 lawyers that there is not a racial point of view 12 that they can assume one has because of ones race. 13 And so that it is the case that many 14 of my African American students have what people 15 would presume would be their views on some issues in 16 law ahead of time, but it's also the case that I get 17 very unexpected points of view and incredible class 18 discussion and analysis that follows from it. And 19 that's why I value it. 20 Q. I want to change gears here, we're coming down the 21 home stretch, your Honor. 22 THE COURT: All right. 23 BY MR. KESSLER: 24 Q. You have read the recent supplemental report by 25 Professor Raudenbush, that's Exhibit 150, you made GRUTTER -vs- BOLLINGER, ET AL 52 1 reference to it before. I want to ask you a couple 2 of questions that are based on Professor 3 Raudenbush's report and his conclusions. 4 He concluded, among other things in 5 his report, that Michigan law schools minority 6 enrollment would only be about four percent if 7 Michigan adopted a race neutral policy, as compared 8 with roughly 15 percent under the current policy, 9 you recall that? 10 A. Yes. 11 Q. He also concluded that a first year law section at 12 Michigan, which you probably recall involves about 13 85 students, would only have a 67 percent 14 probability of enrolling three or more minority 15 students as compared with a hundred percent 16 probability of that happening under the current 17 policy, do you recall that? 18 A. I recall that with reference to African American 19 students. 20 Q. Okay. And I want to give you just a couple of more 21 statistics from his report. He also concluded that 22 a first year half section, which is about 42 23 students, would only have a 24 percent probability 24 of them gaining three or four minority students 25 under a race neutral policy, compared with a 96 GRUTTER -vs- BOLLINGER, ET AL 53 1 percent probability of that happening under the 2 current policy. 3 A. Yes. 4 Q. He also concluded--well, let me ask you one 5 question. 6 Does the presence of just three 7 minority students in a class of either 85 or 42, 8 does that represent fairly modest numbers? 9 A. I'm sorry. When you minority students, you're 10 referring to African Americans, Hispanics? 11 Q. Underrepresented minorities, African Americans, 12 Hispanics, Native Americans and so on? 13 A. And can you repeat the question? 14 Q. The question is whether having three minorities 15 overall in classes of either 85 or 42, are those 16 relatively modest numbers of minorities? 17 A. Well, their modest in the sense of achieving the 18 pedagogical side that I talked about in my report, 19 yes. 20 Q. Let me give you just a couple of more conclusions 21 that Professor Raudenbush drew. 22 He also concluded that the 23 probability of enrolling three African Americans or 24 three Hispanics, so it's either or, in the 85, the 25 large student section, a hundred percent under the GRUTTER -vs- BOLLINGER, ET AL 54 1 existing policy, but only 49 percent under a race 2 neutral policy. 3 And lastly, he did make other 4 conclusions, but I'm not going to go through all of 5 them just in the interest of time. 6 He concluded that the probability of 7 enrolling three African Americans or three Hispanics 8 in the half section, the 42 student section, is 89 9 percent under the current policy, but only 13 10 percent under a race neutral policy. 11 And my question to you is, based on 12 those conclusions that Professor Raudenbush drew and 13 assuming that they are correct, does that indicate 14 to you that a race neutral policy at the University 15 of Michigan Law School wouldn't produce a critical 16 mass of minority students? 17 A. It indicates to me that it would not. 18 Q. Based on Professor Raudenbush's analysis, and again, 19 assuming that it is valid and correct. Do you 20 believe that the University of Michigan Law School 21 has considered race only to the extent necessary to 22 achieve a critical mass of minority students? 23 MR. PURDY: Object on foundation. 24 THE COURT: Sustained. 25 GRUTTER -vs- BOLLINGER, ET AL 55 1 BY MR. KESSLER: 2 Q. Would you encourage a student--my last question. 3 Would you encourage a student who is interested in 4 attending law school, to pursue legal education in a 5 school that was not committed to diversity in 6 general, and did not enroll a critical mass of 7 minority students? 8 A. I would and, indeed, frequently counsel students on 9 precisely that issue. And I advise them not to go 10 to schools unless they have a meaningful number of 11 minority students in the classroom settings. 12 And I do that for the reasons given 13 in the report. I am skeptical they will get the 14 best education that they can get if they don't have 15 that advantage. 16 MR. KESSLER: Thank you, Dean 17 Syverud, I have nothing further. 18 MS. MASSIE: Nothing for the 19 Intervenors. 20 THE COURT: Mr. Purdy. 21 CROSS-EXAMINATION 22 BY MR. PURDY: 23 Q. Good morning, Dean Syverud. 24 A. Good morning. 25 Q. My name is Larry Purdy and I represent the GRUTTER -vs- BOLLINGER, ET AL 56 1 Plaintiff, we met this morning for the first time 2 before court opened, you recall? 3 A. I recall. 4 Q. Okay. You mentioned that you have consulted with 5 the University of Oregon Law School, is that 6 correct? 7 A. No, I was on the accreditation team for the American 8 Bar Association that was reaccrediting the 9 University of Oregon Law School. 10 Q. You think the University of Oregon Law School offers 11 an outstanding legal education to its students? 12 A. I think it is a good legal education for its 13 students. 14 Q. Do you consider the Oregon Law School to have a 15 critical mass of underrepresented minority students 16 in the student body? 17 A. I do not. 18 Q. Nevertheless, you consider that it offers a good 19 education to the law students that attend? 20 A. I do. 21 Q. The University of South Dakota, what was your 22 affiliation with the University of South Dakota? 23 A. I was asked by the Dean to speak to the faculty and 24 students there. 25 Q. Do you consider the University of South Dakota to do GRUTTER -vs- BOLLINGER, ET AL 57 1 a good job of offering a legal education to the 2 students that attend that law school? 3 A. I do. 4 Q. If a student from South Dakota said, Dean Syverud, 5 should I attend the University of South Dakota Law 6 School, would you tell him or her not to go there 7 because in your view the racial mix might not be up 8 to what you would expect? 9 A. I would ask that student about that student's career 10 goals, and my advice would depend on those. My 11 family is from South Dakota, and South Dakota is not 12 a racially diverse place. 13 It's kind of like Scandinavian, 14 German with the exception of parts of Sioux Falls. 15 And I would and actually was asked by students when 16 I was at South Dakota about this issue, because it's 17 a quite homogeneous law school in the racial sense. 18 Not in the experiential background of the students. 19 And if a student, a potential law 20 student wanted to practice law in settings around 21 the United States where there is a great deal of 22 racial diversity, or practice law internationally, I 23 would not advise that student to go to the 24 University of South Dakota Law School, for the 25 reasons you gave, among others. GRUTTER -vs- BOLLINGER, ET AL 58 1 Q. Let me so we all understand. If you have a student 2 in South Dakota and they wanted to attend the 3 University of South Dakota Law School, but had an 4 aspiration of practicing law, say, on the east coast 5 or the west coast, it would be your advice that they 6 not attend that law school which you have already 7 told us you believe gives a good education, a good 8 legal education, correct? 9 A. I testified it's a good legal education, yes. 10 Q. But because of your view of the lack of critical 11 mass, because I assume we can all agree, there is a 12 lack of critical mass in minority students in South 13 Dakota? 14 A. Yes, there are a decent number of Native American 15 students at the University of South Dakota Law 16 School, because of the Native American population in 17 South Dakota. There is a very small percentage of 18 African Americans or Hispanic students. 19 Q. As a matter of fact, Native American students can 20 add a tremendous amount of diversity to a law 21 school, can they not? 22 A. Yes, they can. 23 Q. How many Native Americans students attend Vanderbilt 24 Law School? 25 A. Almost none. But your question was would I advise GRUTTER -vs- BOLLINGER, ET AL 59 1 the person to go to the University of South Dakota 2 Law School, and I answer is between equally situated 3 law schools, and there would be choices for such a 4 student. 5 Including schools like William 6 Mitchell in Minneapolis or other schools in the 7 region, that are more racially diversed in the 8 senses that we've described. 9 And I seriously would advise that 10 student to look very closely at those alternatives. 11 Not if that person wants to practice on the coast, 12 but if that person has a goal of practicing in 13 Minneapolis. And I did so advise a student. 14 Q. My ala mater would be pleased to hear that. 15 A. I'm sorry, I didn't know that. 16 Q. That's all right, I'm sure they'll be proud to hear 17 that you would advise students to go there. 18 A. Okay. 19 Q. I want to go back because there are many state 20 residents in South Dakota who, for a variety of 21 reasons, socioeconomic reasons, family reasons, 22 would prefer or may, indeed, be required to attend 23 law school in South Dakota, would you agree? 24 A. Yes. 25 Q. And are you suggesting, however, that a student who GRUTTER -vs- BOLLINGER, ET AL 60 1 attends law school in South Dakota is going to be 2 somehow unprepared to go out and practice law on the 3 east coast or the west coast, or in Minneapolis, or 4 Detroit or Chicago, simply because of the racial mix 5 that may be present in his or her law school class? 6 A. No, I'm not suggesting that. 7 Q. You had a fascinating question earlier about 8 learning something about the extent to which parents 9 may buy life insurance for children, do you recall 10 that? 11 A. Yes, I do. 12 Q. Dean Syverud, isn't it true that had that issue been 13 brought to your issue by a white student or an Asian 14 student, it still would have been a surprise to you? 15 A. Yes. It just wasn't, so. 16 Q. But the color, or the ethnicity of the student who 17 brought that to your attention, had nothing to do 18 with what you learned from that advice, correct? 19 A. That is correct. And it has been my experience over 20 time that the experiential base of students is 21 diverse among all students, not just in racial 22 minorities. 23 But it has been my experience that a 24 critical mass of minority students does bring an 25 experiential base that tends not to come out GRUTTER -vs- BOLLINGER, ET AL 61 1 otherwise. 2 Q. You have raised the example of sometimes where there 3 might be, say, just one and let's use for example an 4 African American student in the class. 5 That if asked a question, it was your 6 view or your feeling that a black or, say, Hispanic 7 would, and I believe I wrote this down and I 8 apologize if I didn't get it correctly. 9 That they had race views that tend to 10 be the politically correct or the expected views, do 11 you recall that testimony? 12 A. I recall testifying that the more common response is 13 silence or not kind of probing examination of 14 individual views. And if not that, then the next 15 most common response in a token situation, is the 16 politically correct view. 17 Q. Do you assume that there are expected views from 18 black students or Hispanic students? 19 A. That's a good question. I guess from my experience 20 of teaching and particularly talking with students 21 inside and outside class, I have become increasingly 22 convinced that many white students have projected 23 expected views that minority students will have 24 uncertain questions, yes. 25 Q. Are you generalizing now as to white students, in GRUTTER -vs- BOLLINGER, ET AL 62 1 other words, you assume that most white students 2 expect a particular view from a minority? 3 A. I'm not assuming anything, I'm basing it on 4 conversations with my white students. 5 Q. But there are white students, I'm sure, who don't 6 share that view? 7 A. Yes, that's very correct. 8 Q. And wouldn't it be true that if we didn't walk into 9 a classroom with an expected view from anyone based 10 on their race, we wouldn't even have this issue, 11 wouldn't that be true? 12 A. If no one would walk into the room, no student or 13 teacher went in expecting what the views and 14 experiences of the people in the class would be, I 15 agree we wouldn't have this issue. 16 Q. In other words--I apologize, I didn't mean to talk 17 over you. 18 A. That's okay. 19 Q. In other words, would you agree with this, Dean 20 Syverud, if we respected one other as individuals 21 and not as representatives of our race, there would 22 be no expected view, correct? 23 A. Yes, and that's exactly one of the primary goals I'm 24 trying to get to in my teaching. Your question 25 presumes that kind of the mental attitude of the GRUTTER -vs- BOLLINGER, ET AL 63 1 professor going in, can kind of produce that 2 atmosphere in the classroom. 3 And that's the way I started 4 teaching, that's the presumption I started teaching 5 with. And I guess I have a different presumption 6 now from a lot of experienced teaching. 7 That it isn't just me--it isn't 8 just--it isn't something the professor automatically 9 causes to happen by attitude of the teacher in the 10 classroom. 11 It requires a dialogue among the 12 students over a period of time that doesn't consist 13 of kind of self righteous lecturing of that point of 14 view by the professor, but as it emerge from 15 understanding of hearing everybody talk about their 16 points of view during the course of the semester. 17 And that's hard to make happen in a 18 classroom that doesn't have significant numbers of 19 minority students. 20 Q. You make it sound, and please correct me if I'm 21 wrong. But you make it sound as if the vast 22 majority of law students that come into our very 23 fine law schools today, have these assumptions about 24 other people that somehow race or ethnicity dictates 25 their views, is that your assumption? GRUTTER -vs- BOLLINGER, ET AL 64 1 A. I guess I'm saying something different, which is 2 that for reasons I don't understand the degree to 3 which people prior to law school, law students I 4 have will come in, listen to each other before 5 talking and projecting assumptions about views is a 6 problem. It really is a problem. 7 A degree to which by the time 8 students get to law school, they have categorized 9 people. It has increasingly bothered me. 10 I guess that's a criticism of the 11 educational system up to law school. And I guess 12 that could be viewed as me being patronizing of my 13 students. 14 It's just my experience though that 15 many students assume they know what people think of 16 issues before they ask. 17 And assume that the experiences of 18 individuals is similar to their own until--it's part 19 of the socialization process. 20 And there is a socialization process 21 in law school of wanting to seem professional like 22 everybody else. That it requires some effort on my 23 part to break down. 24 Q. Do you make any assumptions, Dean Syverud, as to the 25 extent of which your law students either when you GRUTTER -vs- BOLLINGER, ET AL 65 1 were at Michigan, or now that you're at Vanderbilt, 2 had interracial relationships before they ever got 3 to law school, do you make any assumptions about 4 that? 5 A. I don't make assumptions except for what information 6 we gleam from the admissions applicants and the 7 materials about the students. 8 Q. I'm sorry, go ahead, I apologize. 9 A. So, there is some, you know, there's some data in 10 the admissions files and the essays and other things 11 that students write. 12 And usually I do look at that 13 material before I teach, particularly, a first year 14 class. So I get some information about the 15 backgrounds, including experience across races in my 16 students. 17 Q. But is there anything in an applications file that 18 suggest that students either at Michigan or those at 19 Vanderbilt, have come into the school without any 20 interracial relationships or dealings before they 21 got there? 22 A. Actually the individual admissions files don't show 23 that detail of experience. I mean I take my first 24 year students out to lunch in groups and talk about 25 their experiences and their backgrounds, where GRUTTER -vs- BOLLINGER, ET AL 66 1 they're from. 2 And in Vanderbilt many of them are 3 from small towns in the south, where there's 4 substantial interracial experiences by the nature of 5 the community. So I guess it varies by the 6 individual. 7 There are students have no experience 8 at all. There are students who are brought up in 9 racially diverse settings because the churches are 10 very segregated, or the schools are very segregated 11 and they have not had much experience. 12 And there's students who have 13 unbelievably diverse interracial experiences. 14 Q. And that varies across racial lines, wouldn't that 15 be true, of both blacks students, for example, and 16 white students? 17 A. Yes, it sure does. 18 Q. In your testimony you made a statement, you said 19 that you never had any trouble with your white 20 students in terms of seeing over the course of a 21 year a vast majority of experiences, you recall that 22 testimony? 23 A. Yes, I said that I have never had any trouble with 24 white students projecting onto another white student 25 assumptions of their views of almost all issues GRUTTER -vs- BOLLINGER, ET AL 67 1 because of their race. 2 And that's primarily been every class 3 I've taught there's been such an incredible 4 diversity of background and experience among the 5 white students that become very obvious very quickly 6 in the semester. 7 Q. Sure. In other words, every individual is different 8 and there's a broad range of diversity and a broad 9 range of experiences that are present in both the 10 Law School of Michigan, as well as at Vanderbilt? 11 A. Yes. But the difference is that that becomes 12 obvious among the white students early in the 13 semester everytime. It becomes obvious everytime, 14 because there's always a critical mass of white 15 students in every class I've taught. 16 And so very quickly after I've called 17 on four or five of them, it's obvious they all don't 18 have the same views and they all don't agree. And 19 therefore, they are comfortable expressing different 20 views and disagreeing with each other very quickly. 21 Q. You've made an assumption, and again correct me if 22 I'm wrong. I believe you've made the assumption 23 that the black students, for example, who come into 24 your classroom are less comfortable expressing their 25 viewpoints at Vanderbilt Law School, is that GRUTTER -vs- BOLLINGER, ET AL 68 1 correct? 2 A. It's been my experience that for some black students 3 that is the case, yes. 4 Q. But not for all, correct? 5 A. Very correct. 6 Q. And there are white students who are uncomfortable 7 expressing their views, are there not? 8 A. Yes. And that's kind of why I call on them the way 9 I call on them. Which is at random dropping paper 10 clips on to the seating chart. So the uncomfortable 11 ones have to talk too. 12 Q. So I'm sure they're always worried when you start 13 throwing the paper clips? 14 A. They are very worried, yes. 15 Q. You made a very interesting comment, I want to make 16 sure I got it down. I believe in your testimony 17 earlier this morning you said that it can be enough 18 to have one member of a particular minority in a 19 classroom, correct? 20 A. Yes. 21 Q. And that just simply depends on that individually, 22 his or her personality, correct? 23 A. It's really tough, because it's hard for--it's hard 24 in the sense for one African American student to 25 demonstrate to in various ways a diversity of views GRUTTER -vs- BOLLINGER, ET AL 69 1 among African American students. Because by 2 definition, that's a unique individual. 3 But what one outspoken and unique 4 individual can do is shake up expectations and start 5 getting everybody in the class to view that person 6 as a unique individual. 7 Q. Dean Syverud, I believe in one of your reports you 8 have talked about the law school education 9 being--and I'll just paraphrase. It being 10 immeasurably poor, or if there's not meaningful 11 numbers, or significant numbers of blacks, Hispanic, 12 Asian Americans and white students, I believe that 13 was what you said, you recall that? 14 A. Yes. I have to look at the report, but I remember 15 that sentence in the report. 16 Q. Sure. And if you were lacking, if a law school were 17 lacking in any one of those particular groups, in 18 other words, lacked a critical mass, do you believe 19 that that law school would be offering an inferior 20 education, a legal education to its students? 21 A. As compared to schools that didn't lack that 22 critical mass, yes. 23 Q. I earlier asked you about Vanderbilt's enrollment of 24 Native Americans. And, in fact, do you know if 25 there is even one Native American at Vanderbilt Law GRUTTER -vs- BOLLINGER, ET AL 70 1 School currently? 2 A. Yes, there is currently. I mean we had, 3 historically we had a huge, believe it or not, 4 Cherokee population before World War II. 5 But currently it's quite common for 6 an entering class not to have a single Native 7 American student. There is one in this year's 8 entering class, I believe. 9 Q. You consider that a critical mass? 10 A. No, I don't. 11 Q. How about, let's just use last year's entering class 12 at Vanderbilt. Were there any Hispanic students? 13 A. You mean the class that entered in 1999, there was 14 not a single Hispanic student, correct. 15 Q. Did you tell your students that entered in that 16 class that their education was going to be inferior 17 because of the absence of Hispanic students? 18 A. I talked to students about the issue and explained 19 why I was very concerned about it, yes. 20 Q. But the truth is the class had no Hispanics in it? 21 A. That's correct. 22 Q. Do you recall the percentage of the class that was 23 made up by African American students? 24 A. In the entering class in 1999? 25 Q. Yes, sir. GRUTTER -vs- BOLLINGER, ET AL 71 1 A. I don't recall the exact percentage, no. 2 Q. If I told you it was around seven percent, would 3 that be consistent with your understanding of that 4 class? 5 A. I would think it would be slightly larger than that. 6 Q. Outside of African American students, there were no 7 Native Americans in last year's entering class, 8 correct? 9 A. That's correct. 10 Q. No Hispanics was in that class, correct? 11 A. I believe that's correct, yes. 12 Q. And so the total underrepresented minority 13 population in last year's entering class would have 14 been--and I just want you to assume, and you correct 15 me if I'm wrong. 16 But I want you to assume it was about 17 seven percent. 18 A. Okay. 19 Q. And that would be the total underrepresented 20 minority population at Vanderbilt in last year's 21 entering class? 22 A. Correct. I will take that assumption as correct. 23 Q. Okay. Would that constitute a critical mass of 24 underrepresented minority students, in your view? 25 A. I think it would represent a critical mass of GRUTTER -vs- BOLLINGER, ET AL 72 1 African American students. And I say that primarily 2 because I taught civil procedure to half of those 3 students last year, and had in my civil procedure 4 class at least five or six African American 5 students, and the dynamic I described occurred. 6 That is, over the course of the 7 semester the students became individuals with the 8 kind of caustic views across races, across black and 9 white races. 10 Nashville, Tennessee is not a state 11 that--it's a southern state where the significant 12 minority population is African American. 13 But I would say it had a critical 14 mass of African American students, because the 15 pedagogical goals that I described happened in my 16 class with African American students. 17 Q. Of course, the University of Michigan's admissions 18 policy talks about a critical mass of 19 underrepresented minority students, correct? 20 A. I believe so, yes. 21 Q. And that included the Hispanics, African Americans 22 and Native Americans? 23 A. Yes. I believe it did, yes. 24 Q. If Vanderbilt last year rather then have a seven 25 percent African American students, it had no African GRUTTER -vs- BOLLINGER, ET AL 73 1 American students but seven percent Hispanic 2 students, would you still have the same view of the 3 class? 4 A. Again it would depend on what happened in the class 5 I taught. I mean when I say meaningful numbers of 6 minority students, it's not a particular minimum 7 standard quantifiable goal. It's what happens in 8 class with those particular students as to whether 9 it works. 10 I wouldn't be concerned in the same 11 way in that hypothetical as I was, in fact, 12 concerned about the Hispanic enrollments if I had no 13 African Americans in the classroom. 14 Q. Dean Syverud, we have talked a lot about critical 15 mass and you have been lucky, because you haven't 16 had to be here the last week or so because that 17 subject has come up a lot. And we try to get a 18 number on it and I don't think we're going to be 19 successful, at least, here in this courtroom. 20 But if I were to ask you would five 21 percent underrepresented minority enrollment 22 constitute a critical mass, do you have an opinion 23 one way or the other? 24 A. I guess from what I said, you can probably guess at 25 what my opinion is, but I will say. GRUTTER -vs- BOLLINGER, ET AL 74 1 Q. Sure. 2 A. It would depend on the effect in the classroom. I 3 would say that five percent African American 4 enrollment to the extent it produced significant 5 numbers of African American students in the relevant 6 classroom settings, would produce a critical mass. 7 So it would depend on what classroom settings the 8 school employs. 9 Q. And, of course, whether or not that particular 10 percentage might constitute critical mass is going 11 to depend uniquely on the individuals, correct? 12 A. That's my view, yes. 13 THE COURT: And the professor's? 14 A. Yes. 15 MR. PURDY: I'm sorry? 16 THE COURT: I said and the professor, 17 depending on what the teaching method is and so 18 forth. 19 A. Yes, I agree. 20 BY MR. PURDY: 21 Q. That prompts another question. Do you believe, as 22 of last year, do you believe that the Vanderbilt law 23 faculty had critical mass of minority members? 24 A. I'm sorry? You want to talk about diversity in the 25 law faculty? GRUTTER -vs- BOLLINGER, ET AL 75 1 Q. No, I just want to ask one question, and I 2 apologize. And I will limit it to this. 3 A. Sure. 4 Q. Beginning in 1999, the 1999 calendar year, academic 5 year 99/2000, was it your view that the Vanderbilt 6 faculty had a critical mass of minority members? 7 A. Well, I guess I can't just translate this 8 significant numbers question that we've been 9 discussing for students onto faculty, it's a 10 different question. 11 I guess the dynamics of faculty 12 interaction with each other and with the students is 13 a little different then the dynamic of one professor 14 teaching a class. So I never thought about critical 15 mass of faculty. 16 Q. Okay. 17 A. And I didn't understand that that was- 18 Q. (Interposing) It's not an issue, I just asked the 19 question and let me just be clear. 20 A. Yes. 21 Q. Critical mass that you have been talking about for 22 students, might be something entirely different if 23 we're talking about faculty? 24 A. Yes. It is the case that as of last year there was 25 one tenured African American faculty member at GRUTTER -vs- BOLLINGER, ET AL 76 1 Vanderbilt, there are four now. 2 It is the case that there is only two 3 Asian American faculty members at Vanderbilt, and no 4 Hispanic of Native American faculty. 5 I guess I haven't--I guess the kind 6 of clastic views on what critical mass what--on 7 affirmative action issues with regard to faculty 8 recruitment. 9 And I've been testifying here about 10 pedagogy in the classroom, and I actually think it's 11 a different question about professors. 12 Most professor teach as individuals, 13 and so the notion that there is a critical mass of 14 your one person when you're teaching. 15 Q. Can we assume then, and I'll move on. Can we assume 16 that your views about the use of race and selected 17 faculty may be different from those of selected 18 students? 19 A. Yes, you can. 20 Q. Dean Syverud, let me give you, and it's not a 21 hypothetical, but I'm going to give you a law school 22 with 16 percent African American students. So I 23 want you to assume this, but I will represent you is 24 the case. 25 Sixteen percent African American GRUTTER -vs- BOLLINGER, ET AL 77 1 students, over five percent Hispanic students, over 2 one percent Native American students, almost five 3 percent Asian American students, two person foreign 4 students, and approximately 69 percent Caucasian 5 students. 6 Would that just hearing those 7 numbers, does that sound to you like a student body 8 where there's a critical mass? 9 A. Again, my context is that it depends on the 10 particular classroom and professor. But I would 11 think it would be more likely that in various 12 classroom settings with drawing from that 13 population, there would be meaningful numbers of 14 minority students in the original classes. 15 Q. And I'll represent to you that that's about 22 16 percent, 22.4 percent of underrepresented minority 17 students. 18 Would that make that law school, in 19 your view, an inherently better school than say, 20 Vanderbilt, which has no Hispanic students, no 21 Native Americans students entered in your last year 22 entering class? 23 A. I think it would make various teaching settings more 24 likely to produce the pedagogical goals that I have 25 described. And that would make it a better law GRUTTER -vs- BOLLINGER, ET AL 78 1 school in that respect, yes. 2 Q. I'll represent to you, and again I will stand 3 corrected if I'm in error. But I believe those are 4 the numbers from Thomas Cooley Law School here in 5 Michigan. Are you familiar with Thomas Cooley? 6 A. I sure am. 7 Q. And it's a fine law school, is it not? 8 A. I think it's a very good law school. 9 Q. And, in fact, Michigan every year, at least, not if 10 every year, but at least frequently gets transfer 11 students from first year students who completed 12 their studies at Thomas Cooley and then they come to 13 Michigan Law School, correct? 14 A. I haven't looked at Michigan's transfer since I left 15 in '97. But certainly while I was associate dean 16 there, it was one or more transfer students from 17 Cooley. 18 Q. But because of the racial mix that I have just 19 described to you, do you believe that Thomas Cooley 20 offers a better legal education to its students 21 because of its abundant racial heterogeneity than 22 does Michigan? 23 A. I guess I believe that what I have testified to is 24 that at a certain point, there's meaningful numbers 25 of African American students and other groups of GRUTTER -vs- BOLLINGER, ET AL 79 1 students in particular classroom settings. 2 And therefore, the result it's 3 possible and likely that students become individuals 4 and learn in the ways I have described are my goals. 5 I don't think that results in this 6 kind of straight line projection that the higher 7 percentage you go, the better it gets automatically. 8 What I've been testifying to is that 9 there is some threshold over which you have to 10 cross, and if you don't get to that point it doesn't 11 happen in the classroom. And I do think that's a 12 very material factor in the quality of the 13 education. 14 And so, for example, if I honestly do 15 think the educational experience at Cooley is quite 16 a bit better than some very highly ranked law 17 schools where there isn't much racial diversity in 18 the classes and--I don't think it's just for that 19 reason, I think there's other things Cooley does 20 well that some schools do not do. 21 So, I guess this is one factor that 22 makes the law school better than other equally 23 situated law schools. 24 There's other things that those other 25 law schools can do better, they could have better GRUTTER -vs- BOLLINGER, ET AL 80 1 research with their financial aide, or a more 2 prominent faculty, you know other, things. But this 3 would be one relevant factor, yes. 4 Q. If depending on ones career goals, going back to 5 your comment about South Dakota? 6 A. Yes. 7 Q. The student at South Dakota. Depending upon ones 8 career goals here in Michigan, is it conceivable 9 that you might suggest to a particular student that 10 they should attend Thomas Cooley as opposed to the 11 University of Michigan? 12 A. Yes. 13 MR. PURDY: That's all I have, your 14 Honor. 15 THE COURT: Anything, Mr. Kessler? 16 MR. KESSLER: I have just a few 17 questions, your Honor. 18 REDIRECT EXAMINATION 19 BY MR. KESSLER: 20 Q. Dean Syverud, I'm sure you recall the discussion 21 with Mr. Purdy about the Oregon Law School, and that 22 Oregon offers a good legal education, but perhaps 23 has no critical mass of minority students, you 24 recall that? 25 A. Yes. GRUTTER -vs- BOLLINGER, ET AL 81 1 Q. Would Oregon be a better law school offering a 2 richer and more valuable legal education, in your 3 opinion, if it did have a critical mass of minority 4 students? 5 A. Yes, it would. 6 Q. And would the same be true of South Dakota? 7 A. Yes, it would. 8 Q. Would the same be true of any law school, just fill 9 in the blanks, all other things being equal? 10 A. Yes. 11 Q. There was a discussion that you had with Mr. Purdy 12 in which you indicated, if I got my notes right, 13 that you were not suggesting that a South Dakota law 14 school graduate would be unprepared, that was the 15 word, unprepared to practice on either the east 16 coast or the west coast or in large cities, which 17 obviously have diverse populations, do you recall 18 that? 19 A. Yes, I do. 20 Q. Would the graduates of the South Dakota Law School 21 be better prepared, in your opinion, to practice on 22 either of the coasts, or in any large city, or to 23 practice internationally if they graduated from a 24 law school that had a critical mass of diverse 25 students, critical mass of minority students, I GRUTTER -vs- BOLLINGER, ET AL 82 1 should say? 2 MR. PURDY: Your Honor, I have to 3 object on foundation. 4 THE COURT: Sustained. 5 MR. KESSLER: Your Honor, he opened 6 the door. 7 THE COURT: He opened the door, but 8 you've gone a little bit outside. I mean his 9 opinion is no different than anybody elses, I'll 10 sustain the objection. 11 BY MR. KESSLER: 12 Q. You had a brief discussion with Mr. Purdy about 13 situations where there might be just one, I think 14 the example was African American in a class, and in 15 an unusual case the African American had a 16 particularly forceful and outgoing and confident 17 personality. 18 You might achieve some of the 19 benefits of critical mass with just that one 20 student, do you recall that? 21 A. Yes, I do. 22 Q. Would that be the exception, in your experience? 23 A. Yes, most definitely. 24 Q. There was discussion about the Hispanic student 25 population at your law school, at Vanderbilt, I GRUTTER -vs- BOLLINGER, ET AL 83 1 think in the class of 1999? 2 A. Yes. 3 Q. Has the number of Hispanic law students at 4 Vanderbilt Law School, in your experience, varied 5 rather dramatically from one year to the another? 6 A. It certainly has. 7 Q. So, it's not the case that Vanderbilt in general 8 doesn't enroll Hispanic law students, is that right? 9 A. No. There are numbers of Hispanic American students 10 in the third year class and the first year class, 11 and in the classes that have graduated recently. 12 But our minority enrollment of 13 various groups, varies considerably year to year. 14 We read the files and do the admissions and it 15 varies. 16 Q. As a legal educator who is devoted to delivering the 17 best possible education to your law students, would 18 you always prefer that Vanderbilt have meaningful 19 numbers of African Americans, as well as meaningful 20 number of Hispanics, as well as meaningful numbers 21 of Native Americans? 22 A. All other things being equal, I would prefer that, 23 yes. 24 Q. There was a discussion that you had with Mr. Purdy 25 about, you know, whether five percent African GRUTTER -vs- BOLLINGER, ET AL 84 1 Americans might be enough to constitute a critical 2 mass. 3 And I think you indicated that it 4 would depend on the numbers of minority students and 5 the various classes and learning context, you recall 6 that discussion? 7 A. Yes, I do. 8 Q. I just wanted to be sure that I understood what you 9 were saying. 10 Is it your idea that what you want to 11 do in achieving a critical mass, is to avoid getting 12 token numbers of minorities in most classes so that 13 the dynamics that critical mass produces can be, in 14 fact, produced? 15 A. Yes, I mean--that's my belief. So, it depends on 16 the structure of the education, five percent might 17 work in some settings, depending on how the 18 curriculum work. 19 Q. And finally, there was discussion about the levels 20 of diversity at Cooley Law School and comparisons to 21 Michigan Law School and other law schools, do you 22 recall that? 23 A. Yes, I do. 24 Q. Once again, is the University of Michigan Law 25 School, or any law school all other things being GRUTTER -vs- BOLLINGER, ET AL 85 1 equal, offering a better and richer legal education 2 to its students when it has a critical mass of 3 minorities, then that particular law school would 4 otherwise be able to deliver? 5 A. In that particular law school you mean Michigan? 6 Q. Michigan or Harvard or any law schools? 7 A. Yes, I think that a law school that has critical 8 mass or meaningful numbers of minority students in 9 classroom settings is offering a better educational 10 experience then the same law school if it did not. 11 MR. KESSLER: I have nothing further. 12 THE COURT: I don't know if you know 13 the answer to this. We have heard the term 14 throughout this trial selective law schools. 15 Would you consider Cooley a selective 16 law school? 17 A. No, I would not. 18 THE COURT: Would it be fair then to 19 say that if a law school felt that it was important 20 to have a lot of diversity, than if they just chose 21 not to become a selective law school that they would 22 be able to achieve that goal much easier? 23 A. I believe that if that--there is quite a bit of 24 diversity nationally in the applicant pool for law 25 schools. And I think if law schools abandoned the GRUTTER -vs- BOLLINGER, ET AL 86 1 LSAT and GPA as significant factors in admissions, 2 and that's I think what it means by--or 3 substantially change what their targets are for LSAT 4 or GPA, it would be easier for them to take 5 diversity, yes. 6 THE COURT: The word "selective", I 7 think what it does is it talks about ranges of LSAT 8 and so forth? 9 A. Right. 10 THE COURT: If they chose to not to 11 be selective, their pool would be larger, and 12 therefore the accomplishment of diversity would be 13 much easier as indicated by Cooley? 14 A. Yes. I mean the term selective I think is one that 15 kind of, you know, people like Princeton Review or 16 US News or some come up with it. So I don't know 17 what exactly their numbers are that they use. 18 THE COURT: In all the pleadings, the 19 Michigan Law School has considered themselves 20 selective, they have used that word? 21 A. I'm sorry. I don't know. 22 THE COURT: I don't want to put you 23 on the spot. 24 A. I try not to use the word selective or elite in 25 referring to my law school, because it seems-- GRUTTER -vs- BOLLINGER, ET AL 87 1 THE COURT: (Interposing) That other 2 people will do it for you? 3 A. Arrogance. 4 THE COURT: Thanks, Dean, I 5 appreciate it very much. 6 (Witness excused.) 7 THE COURT: Okay. The next witness, 8 we're going to take a break or you want to start 9 with the next witness. 10 The reason is that I have some 11 sentencing at eleven that I was going to take the 12 11:00 break, and I know it's going to take a little 13 bit. 14 The attorney that are on the sides, I 15 don't see them here yet. They're very active 16 attorney, they're usually a little bit late. 17 So why we don't start and then we'll 18 take a break at 11. Maybe we can go to a quarter 19 after, and then take our break at a quarter after. 20 MR. PAYTON: Your Honor, we call as 21 our last witness the Dean Jeffrey Lehman. 22 THE COURT: Dean, we may have to 23 break in the middle of your testimony. 24 25 GRUTTER -vs- BOLLINGER, ET AL 88 1 JEFFREY LEHMAN, 2 was thereupon called as a witness herein and, after 3 having been first duly sworn to tell the truth, the 4 whole truth and nothing but the truth, was examined 5 and testified as follows: 6 DIRECT EXAMINATION 7 BY MR. PAYTON: 8 Q. Good morning. 9 A. Good morning. 10 Q. You want to state your name for the record? 11 A. Jeffrey Sean Lehman. 12 Q. And you are currently the Dean of the University of 13 Michigan Law School, is that correct? 14 A. Yes, I am. 15 Q. Would you describe your educational background and 16 just start with college? 17 A. I was a mathematics major at Cornell University, I 18 graduated in 1977. Then I participated in a joint 19 degree program at the University of Michigan in law 20 and public policy. I earned a J.D. and a master's 21 degree in public policy in 1981. 22 Q. And what did you do immediately after law school and 23 the joint degree? 24 A. I served as a law clerk for Frank Coffin who was 25 then the chief judge of the United States Court of GRUTTER -vs- BOLLINGER, ET AL 89 1 Appeals for the First Circuit. 2 Then I served as a law clerk for 3 associate Justice John Paul Stevens of the Supreme 4 Court. And then I practiced law for four years. 5 Q. Where did you practice law? 6 A. I practiced in Washington, D.C. 7 Q. And what were your areas of practice? 8 A. I was a tax lawyer. 9 Q. And how long have you been the dean? 10 A. This is my seventh year as dean, since 1994. 11 Q. You followed Lee Bollinger as dean of the law 12 school, is that correct? 13 A. Yes, I did. 14 Q. Were you on the faculty before that? 15 A. Yes, I was. 16 Q. Were you and Dean Syverud on the faculty at the same 17 time? 18 A. Yes, we started the same year. 19 Q. Is it fair to say that your career in legal 20 education has been exclusively at the University of 21 Michigan? 22 A. That's not quite right. I spent a semester visiting 23 at the Yale Law School as a visiting professor. And 24 I have also taught at the University of Paris. 25 Q. Do you continue teaching as dean? GRUTTER -vs- BOLLINGER, ET AL 90 1 A. Yes, I do. 2 Q. What do you teach students? 3 A. As dean I teach a course in social welfare policy. 4 Q. What did you teach when you were simply a member of 5 the faculty? 6 A. I taught basic income taxation, I taught corporation 7 taxation. And then I taught courses about welfare 8 law. I've taught a course on urban poverty. I've 9 taught a course on nonprofit corporate and tax law. 10 Q. Okay. And have you published articles since you 11 have been a member of the faculty in any of those 12 areas? 13 A. Yes, I published articles in all of those areas. 14 Q. Okay. I take it that you enjoy teaching? 15 A. Yes, I do. 16 Q. And that's why you've continued teaching? 17 A. Yes, that's correct. 18 Q. How did you get picked to be the dean of the law 19 school? 20 A. Dean Bollinger announced that he was leaving to go 21 to Dartmouth to become a provost. And so the 22 provost at the University of Michigan who was Gill 23 Whitaker appointed a search committee, that was 24 mostly faculty and some students at the law school. 25 Ted--was the chair. GRUTTER -vs- BOLLINGER, ET AL 91 1 They conducted a national search and 2 recommended three finalists to the provost, and then 3 president and to their staff. The provost and the 4 president interviewed all three of us and selected 5 me. 6 Q. You became dean in 1994, is that correct? 7 A. That's correct. 8 Q. Is there some organization, I'm going to make this 9 up, called Deans, or Law School of Deans? 10 A. Yes, there is. There's the American Law Deans 11 Association. 12 Q. Okay. 13 A. We call it ALDA. 14 Q. Say that again. 15 A. We call it ALDA. 16 Q. Are you a member? 17 A. Yes, I am a member. 18 Q. Do you have an active participation in that 19 organization? 20 A. Yes, I'm a member of the board of ALDA, and I'm also 21 the president elect. I have become president this 22 coming summer. 23 Q. Okay. How extensive is the organization, are there 24 a lot of law schools, are there a few, what is it? 25 A. There's 182 law schools in the county, so therefore GRUTTER -vs- BOLLINGER, ET AL 92 1 there's 182 deans. And there's about 120 members of 2 ALDA. 3 Q. Dean Lehman, were you surprised when the Plaintiff 4 Barbara Grutter brought this lawsuit against the law 5 school? 6 A. No, I was not surprised. 7 Q. Why not? 8 A. There had been a lot of--just starting in the 1990s, 9 there had been a lot of attention to the use of race 10 in admissions policies at the different law schools 11 and different universities. 12 And a popular case had been litigated 13 in Texas, and there was a lot of publicity about the 14 fact that CIR was planning to bring lawsuits against 15 other law schools. And filed suit against the 16 University of Washington in the spring of '97. 17 There was then listings in the 18 newspapers about several state legislators in 19 Michigan who were interested in there being lawsuits 20 filed against the University of Michigan. 21 And then two months before this case 22 was filed, there was a lawsuit against the 23 University of Michigan's undergraduate admissions 24 program. So, by the time the suit was filed against 25 us, we were not surprised. GRUTTER -vs- BOLLINGER, ET AL 93 1 Q. I'm going to ask just some general questions about 2 your views on, say, what the central issue is in 3 this case. And then I want you to describe sort of 4 what happens as an educational matter and as an 5 interpersonal matter at the law school, and I'm 6 hoping that will be an unit that will take us to a 7 break. 8 THE COURT: We're moving along. 9 BY MR. PAYTON: 10 Q. Okay. This case has raised a lot of questions about 11 diversity in general, and about racial and ethnic 12 diversity inside of that. 13 In your view as dean of the law 14 school, is having a racially diverse student body 15 important? Is having a diversed student body 16 important as an educational matter? 17 MR. PURDY: Your Honor, once again I 18 have to object to the relevant grounds. Simply 19 because we are not making this an issue, no one is 20 disputing. 21 THE COURT: You agree with him. 22 Again, I will note your objection. I think we can 23 all agree on-- 24 MR. PAYTON: (Interposing) I welcome 25 that agreement on this. But I do think that as a GRUTTER -vs- BOLLINGER, ET AL 94 1 matter of trying to figure out how we take race into 2 account and what the extent is, you have to 3 appreciate why we do what we do. 4 THE COURT: You may proceed. 5 MR. PAYTON: Okay. 6 THE COURT: Plus at this time he's a 7 named defendant. 8 MR. PAYTON: He is. 9 BY MR. PAYTON: 10 Q. Is having a diversed student body important 11 educationally, and is having a racially and 12 ethnically diverse student body an important 13 educational matter? 14 A. Yes, both of those are true. 15 Q. Could you explain? 16 A. I think the best way to explain has to do with, at 17 least the way I would explain it, and I have heard 18 Dean Syverud explain it his way. 19 The way I would explain it has to do 20 with the way I speak to the entering class of 21 students each year. 22 When I welcome the students--the 23 students come, there's an orientation and part of 24 the orientation is that I get up in front and say, 25 welcome. GRUTTER -vs- BOLLINGER, ET AL 95 1 And then I talk to them about what 2 they can look forward to experiencing at the 3 University of Michigan Law School. 4 And the central theme of my welcome 5 to them, is that they will be transformed in law 6 school. They bring a lot of different qualities and 7 talents and attributes with them to law school at 8 the beginning. 9 And they will have some of them 10 nurtured, and they will develop them more fully 11 while in law school, and also acquire new knowledge 12 about the law and legal systems. 13 And when I talk with them about 14 attributes, qualities of the mind. The one that I 15 emphasize in this opening is something that I call 16 the great lawyer's ability to engage sympathetically 17 with counter argument. 18 What I mean by that and what I 19 explain to them, is every lawyer in every situation 20 that they're working with the legal issue in a 21 problem, has to be able to explore it deeply and 22 understand its complexity. 23 They have to be able to understand 24 that if they're in an adversarial situation, their 25 client is likely to see the issue one way, the GRUTTER -vs- BOLLINGER, ET AL 96 1 opposing client is likely to see it a different way, 2 a judge might be inclined to see it a different way, 3 the general public might be inclined to see it a 4 different way. 5 And a great lawyer is able to really 6 feel the position of each of the different parties 7 to a controversy. 8 So, what we're trying to do in law 9 school is to help them reflect simply, intuitively, 10 see that complexity and engage sympathetically with 11 all of the different points of view. 12 And we do that in a variety of 13 different ways. The most significant is the use of 14 the Socratic method, where we push students to take 15 a position on a problem or issue, and then push them 16 to rethink and to consider a different prospective. 17 This is where diversity comes in. 18 And it's very, very poor, I believe, that students 19 learn through their conversation with the faculty 20 member, and also by watching other students speak 21 with the faculty member, and then through 22 interactions among the students themselves. 23 And because students they respect us 24 a lot and they appreciate the value of what we say, 25 but they see us differently from the way they see GRUTTER -vs- BOLLINGER, ET AL 97 1 each other. 2 They identify more closely, more 3 strongly with one other than they do with us as 4 members of the faculty. 5 And part of what happens in a 6 classroom when there's a diversity of views, is that 7 the students see, oh, here is a classmate of mine 8 who I know and I like and I respect, they see this 9 problem differently from the way I do. 10 And so they start to ask themselves, 11 well, why is that. And then they start to imagine 12 how would my classmate Joe think about this problem. 13 Or how would my classmate Susanne think about this 14 problem, before they see it, before it's being ask. 15 And it becomes really by the end of 16 the first year at law school, it becomes part of 17 what we talked about when we talked about thinking 18 like a lawyer. 19 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 98 1 Q Dean Lehman, I'd like you to take few minutes and 2 actually give us a sense of sort of what happens in the actual 3 law school, that is, the Michigan Law School. What it looks 4 like physically, how students interact. Do they live on a 5 campus; do they not live on the campus. Do they eat at the law 6 school; do they not eat at the law school. How does this 7 interaction and teaching environment, if you could describe it 8 for us. 9 A It's a very intense experience. I think all law schools 10 are intense experiences. I have visibly visited a number of 11 them, seen a number of them. I think Michigan is a very intense 12 experience. The campus is a quadrangle on a single city block. 13 Two sides of the quadrangle are dormitories. Then there is a 14 very large sort of a cathedral like building that is the 15 reading room. 16 Q The dormitories are the law school's dormitories? 17 A Yes, it's called the Lawyers' Club. That was the name 18 that was given as part of the bequest by William W. Cook when 19 he provided it. So it's called the Lawyers' Club. The 20 Lawyers' Club dormitories are broken up into entryways. 21 They're sections -- they're vertical. So they go from Section 22 A around to Section -- 23 THE COURT: You can go into this if you want. I've 24 been up there, I've seen it. I've got a picture of it sitting 25 right in my office. But for the record if you think it's BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 99 1 important. Go on. 2 A I'll try to be quick. 3 THE COURT: Take your time. It's a beautiful 4 building. It's great to hear the Dean describe it. 5 A I love these buildings, actually. They're very special 6 and they contribute to the atmosphere, the educational 7 atmosphere of the school. There's a kind of a seriousness 8 about them. 9 THE COURT: As I say, that's why I have a picture of 10 the quad sitting -- in my waiting room. 11 A Each of the vertical sections, there are three or four 12 stories. So there are a few students in each level. So you 13 get to know the other people in your section better than you 14 know -- it's not like a dormitory where there's -- where it's 15 horizontal, where you can go up, across a single floor. You 16 get to know the people better. 17 About two-thirds of the first-year's class lives in 18 the dorms, the Lawyers' Club. One wing of the Lawyers' Club is 19 where the students' cafeteria is. And it's also where the 20 faculty dining room which is adjacent to the students' 21 cafeteria. Then there is the big cathedral-like building 22 which is the reading room of the library. There's an 23 underground library addition. And then the corner building is 24 called Hutchins Hall. And that's were almost all but two of 25 the classrooms are. Also where a number of the faculty BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 100 1 offices are, where the administrative offices are. 2 So as a student -- we don't encourage this -- but 3 it's actually possible for a student to really spend the 4 entire -- their life within this block and set foot outside. 5 But students, their life is really internal to the quad. 6 There's some good coffee shops on campus. 7 Q Were you present when Professor Raudenbush testified? 8 A Yes, I was. 9 Q And he testified about some of the learning environments 10 that took place at the law school, the first year section, a 11 half section, legal writing class, the dormitories, the moot 12 court team, the legal clinics, the moot court competition. Were 13 those the right collection of environments that -- where 14 learning take place in the law school environment? 15 A They were some of them. They accounted for the vast bulk 16 of the students academics experiences, both there's also the 17 entryway. It didn't include seminars. Seminars tend to have 18 about fourteen or fifteen students. And it didn't include a 19 lot of extracurricular and co-curricular activities, the 20 journals and the -- it did have the moot court competition, but 21 it didn't have a lot of the sort -- like the criminal law 22 society or the substantially focused organizations. 23 Q Let me just ask you a question about how first year 24 sections work. It may be that, you know, we're all lawyers and 25 own memories may no longer be accurate in describing, first BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 101 1 year section is eighty-five students. Does that mean those 2 eighty-five students essentially spend the first year together 3 in various classes? 4 A Essentially. The way we try to do is that there are -- 5 the first year required courses are common law, torts, criminal 6 law, civil procedure and property. And among those, four of 7 those would generally be this eighty-five student section. It 8 would be the same eighty-five students for all of them. They 9 would then be divided into two small sections which I think 10 Professor Raudenbush called half sections of about half that 11 size each. Then that same group of eighty-five would also be 12 divided into four legal writing classes. We call our -- we've 13 revised our legal writing program after I became Dean. It's 14 now call the legal practice program. It's a very intensive 15 skills focussed course. And it's taught by our faculty and 16 there are four sub-sections per larger section. So the other 17 twenty people in your legal writing section would also be among 18 the eighty-five in your larger section. And then there's a 19 elective course that students can take in the second semester 20 of first years. And that would be offered to the second- and 21 third-year students. 22 Q Do students, first year in their sections and in their 23 half sections, and these legal writing courses, end up to 24 getting each other pretty well? 25 A They end up getting to know each other very well. And BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 102 1 they're the people you really spend the first year with. 2 It was actually interesting when I as -- as Dean I 3 spend a lot a time with alumni. And it used to be the way 4 sections were assigned, it used to be they were assigned 5 alphabetically. And so when I meet alumni and they say well, 6 I really got to know the other people in the M's of the 7 alphabet. 8 Q And is part of the purpose behind this to create a focus 9 and to actually create the intense learning atmosphere that you 10 want as an educational matter? 11 A Yes, that's exactly right. The idea is the more you get 12 to know someone the better you get to know them, and really 13 that's what makes them ticks, the deeper the conversations can 14 go about law. 15 MR. PAYTON: Is this a good time, your Honor? 16 THE COURT: It's a great time. It's a great time. 17 We wills stand in recess. I will say, I'm hoping twenty, 18 twenty-five minutes. 19 (Court in recess 11:00 a.m.) 20 (Court reconvened, 11:40 a.m.) 21 THE COURT: All right, you may continue. 22 BY MR. PAYTON: 23 Q Before we broke, Dean Lehman, we were talking about how 24 the atmosphere of the law school facilitated learning, and you 25 had made some reference to some things that happened outside BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 103 1 those little formal boxes, outside the classroom. Does 2 learning take place outside of, you know, the first-year 3 section, moot court, outside the classroom? 4 A Certainly. Part of the theory of the first year of law 5 school is that when students leave a class, they're leaving not 6 necessarily a neat tidy package of answers to questions. 7 They're leaving with -- in many ways a longer set of questions 8 that they're suppose to pursue on their own and with classmates 9 outside of the classroom. So if you go to the cafeteria, the 10 cafeteria is filled with first years at lunch time who are 11 eating and talking at the same time about problems and 12 questions that are left over from class. And they form study 13 groups, and work together in study groups to try to understand 14 what's going on in each class, and they argue with each other 15 in study groups as well. 16 After the first year of law school there's then just 17 a wonderful super-abundance really of opportunities to explore 18 the law and legal institutions outside the classroom through 19 law journals. We have six different law reviews, law journals 20 that are all student edited right now. There's Substantive 21 Society. There's an Environmental Law Society where students 22 are interested in issues in environmental law. There's a 23 Criminal Law Society as well. There's the Federalists' 24 Society. And there are student organizations which are more 25 about integrating one's personal background into the practice BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 104 1 of law. So there's the Black Law Students Association, the 2 Christian Law Students Association, the Jewish Law Students 3 Union. A lot of organizations like that where people try to 4 integrate, aspects of themselves into what it means to be a 5 lawyer as well. 6 Q I want to go back into the class, Dean Lehman. You were 7 present when Dean Syverud testified about classroom experiences 8 and learning advantages of having a diverse student body that 9 has significant numbers of -- you've heard all that. 10 A Yes, I was. 11 Q Dean Syverud was your colleague on the faculty for ten 12 years; is that correct? 13 A That's correct, yes. 14 Q And, in fact, once you became Dean you picked him to be 15 your associate dean; is that correct? 16 A Yes, that's correct. 17 Q Why did you pick him? 18 A I've known Kent for a very long time. I've known him 19 even -- we were in law school at the same time. And he is 20 obviously a very bright man, a very diligent man, a very 21 talented man. He also from -- we started teaching the same 22 year, and he was immediately recognized as one of the most 23 excellent teachers at the law school. He won the Hart Wright 24 Prize. And he became somewhat legendary very quickly. I felt a 25 little bit envious I must confess. I think I thought I was a BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 105 1 good teacher, but not quite on his level. 2 When it was time for me -- Ed Cooper was stepping 3 down as associate dean, it was time for me to choose an 4 associate dean who would reflect my sense of direction for the 5 school and also would be effective. And as he testified, a 6 significant part of the work of the associate dean is really 7 about curriculum, teaching. And you just don't find someone 8 better than Kent in those areas so I wanted him in that role. 9 Q Let me ask you, you have taught every year that you have 10 been at the law school as well; isn't that correct? 11 A There was one year that I did not teach. 12 Q Through all of your teaching experience I want to ask if 13 your experience in the classroom is consistent with what Dean 14 Syverud says happens in his classroom with respect to the need 15 for meaningful numbers or critical mass of minority students in 16 the classroom to generate that discussion you've described. 17 MR. PURDY: Just for the record, your Honor, a 18 continuing objection to the extent -- 19 THE COURT: Sustained in terms of continuing. He may 20 answer the question. 21 A Yes. What he described is consistent with my own 22 personal experience. I taught classes where there have been 23 meaningful numbers of minority students present, and I have 24 taught classes were there have not been meaningful numbers of 25 minority students present, and there is a systematic difference BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 106 1 that one observes in the classroom and the dynamics in the way 2 students relate to each other -- 3 BY MR. PAYTON: 4 Q Does it matter -- withdraw that. 5 In your teaching experience have you as a teacher 6 ever been surprised about the way race would come up in a 7 class? 8 A Yes, I been surprised as a teacher. I have been surprised 9 -- I was surprise as a student actually. The first time I was 10 surprised was actually as a student when race came up. That 11 was the beginning of -- my beginning in some ways. 12 Q Do you want to describe that? Well, the student 13 experience that I was thinking about was my first-year contract 14 class. I took a course from J. J White who is still teaching 15 at the law school, and a very good teacher. And I actually 16 remember this discussion even though I've done very little 17 contract since. It was about the Doctrine of Unconscionability. 18 There's a doctrine in contract law which says that sometimes a 19 contract cannot be enforced if their terms were unconscionable. 20 And the case that we were learning about this doctrine is a 21 case called Walker Thomas, someone versus Walker Thomas. And 22 it involved a woman who had bought an appliance in Washington, 23 D. C. The case ended up in the D. C. Circuit. And she bought 24 it with some kind of revolving credit agreement. And 25 ultimately the creditor wanted to foreclose and repossess the BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 107 1 appliance even though she made lot of payments. And I think it 2 was Judge Bassalon who wrote the opinion, striking the contract 3 as unconscionable, and refusing to inforce it. And there was a 4 lot discussion in class. And one of my classmates made a 5 comment about how the customer was African-American and how the 6 one reason to not enforce the contract was this was part of the 7 pattern of exploitation of black people in the commercial area. 8 And one of my black classmates then took issue with that 9 characterization and described it as patronizing and said that 10 it assumed the woman who bought the appliance did not 11 understand what she was getting into. And everyone knew under 12 the circumstances that there were a few ways to get credit in 13 the particular community that she was talking about, credit 14 markets weren't functioning very well. And revolving credit 15 was one of the ways you could get credit, and it was a 16 calculated risk that everyone in that community, or at least in 17 the community that he had grown up was used to. And he said if 18 you rule Judge Bassalon's way the dynamic response is going to 19 be that this form of revolving credit will no longer exist, and 20 it will no longer be possible to have access to this. So this 21 was an unexpected response for me, and I learned something from 22 that. 23 On a teaching side, I teach -- as I've mentioned, 24 I've taught courses about urban poverty, and I've taught the 25 course called the American Urban Underclass. One of the BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 108 1 subjects in discussion there was about drugs. And I think -- 2 I wasn't particularly surprised, but I think the white 3 students in the class were surprised at how hard line some of 4 their black classmates were on drugs. They were expecting to 5 be -- they came to the class with an expectation that that 6 would not be the case. 7 Q I want to switch subjects here. I want to switch the 8 process that resulted in the adoption of the 1992 Faculty 9 Admissions Policy that we have been talking about a lot in this 10 trial. Dean Lehman, you served on the Faculty Admissions 11 Committee that Dean Bollinger put together in the fall of 1991; 12 is that correct? 13 A Yes, it is. 14 Q Were you at that time aware of there being any written 15 admissions policy? 16 A No, no, at that time I was not aware there was any 17 written admissions policy. 18 Q Did you at that time know how admissions worked at the 19 law school? 20 A I had a general sense how admissions worked. I applied 21 to law school, and I was admitted. 22 Q It worked really well for you. 23 A It was a good decision. No, I had a general sense of 24 what was described as the pool system that there be two groups 25 but some were admitted on the numbers, and some admitted BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 109 1 without the certain numbers. Or you needed certain numbers to 2 get into the pool. I didn't have specific detailed knowledge of 3 how it was applied. 4 Q You're on the committee. The committee is now 5 functioning. You've heard various witnesses testify about that. 6 Professor Lempert testified at some length about how the 7 committee functioned, and I'm not going to go back over that. 8 Let me just focus on one part of the committee's operations. 9 Did you know Dennis Shields before you served on that 10 committee? 11 A No, I did not. 12 Q You met him through the committee? 13 A Yes, I did. 14 Q And what was Dennis Shields' contribution to that 15 committee from your point of view, just a committee member? 16 A He's made a lot of contributions over the course of the 17 year. The most significant from my prospective was that he 18 insisted that we start out our process by reading files, by 19 reading cases, if you will, and making decisions on the files 20 as we read them as a group. 21 Q Was what new to most of you? 22 A It was new to me. I never read files before. I don't 23 know if I was on a committee that read files before. I think 24 it was new for just everybody. 25 That was a very significant exercise for me because BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 110 1 I guess I had -- I think I tried to do this on a starting to 2 read files. I had assumed maybe because of my background. 3 What I would do is I would start with the numbers the LSAT 4 score and the GPA and form kind of a presumption or a strong 5 presumption on an admit or deny based on the numbers. And 6 then I sort of modified that based on what else is in the 7 file. So you sort of look at the numbers and then you kind of 8 look through the file and adjust based on that. And that 9 turned out not to be possible, really. At least it wasn't the 10 way -- it wasn't for me to read the files in that way. They 11 are very dense. There's a lot of information in the files 12 and -- I understand, you know, all the students that we were 13 looking at seriously have something impressive about them, 14 very impressive about them. And they all relatively high 15 grades and test scores. And what you're looking at is within 16 that group what kind of a person this person is. And there's 17 -- before I read these files I had not realize how much you 18 could learn from looking at essays. I thought essays were -- 19 never know who wrote them, or who or maybe got couched by 20 their parents or something like that so you should discount 21 them. Well, some essays you look at and, you know, they're 22 badly written, there's not -- even for people with high 23 grades. They're not in a percent grade, there's not sustained 24 argument. They're sloppy. You learn something about 25 temperament, I guess. You see lots of cross outs, and BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 111 1 handwritten additions. It tells you something if the person 2 didn't take -- at least they didn't take the particular 3 process very seriously. 4 So what I got from Dennis Shields was intense 5 reading of the files. 6 Q Now, when you came to write the policy, the policy 7 actually includes the short description of some of the files 8 that you reviewed as a committee; is that correct? 9 A Yes, that's correct. 10 Q And you included that in the policy itself. 11 A Yes, that's right. 12 Q When you think back the files that you read let's just 13 take the ones that end up in the policy, do you think of oh, 14 yeah it's the 151 LSAT score and that's how I remember him. 15 And Y's blah, blah, GPA, I mean, how do you think about people 16 after you have read their if you will file? 17 A You form an impression of a person. And it's largely 18 formed on the basis of their experiences, their background, 19 what they've achieved, what they've been through. For some, 20 you know, you remember someone who had 4.3 summa undergraduate 21 experience. That sometimes be the most salient feature in the 22 file, their LSAT score. But those are unusual files. For 23 most, we're looking at people who are not summa cum laude 24 undergraduate, but very good undergraduate grades, you know, A 25 minuses and B pluses. And then you have people who have very BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 112 1 high LSAT scores, but not perfect scores. And then you 2 remember what they did, where they came from, or what they said 3 sometimes in an essay, you know, the way they discussed the 4 book, or, you know, a book that meant something to them. We 5 obviously don't think about them as numbers. Even those little 6 precipe that you have in the policy -- in looking at Exhibit 4 7 a lot, as we all have -- the four cases in the policy X. Y. Z. 8 And I've been actually trying to remember who those people 9 were. I actually remember one of them, the second "X" one 10 pretty well because he did enroll and I got to know him after 11 he enrolled. 12 But what I did get a sense of those were just a 13 precipe for us. At the time, the committee, we knew a lot 14 more than putting those little paragraphs about each of those 15 four people now, most of it doesn't make a difference. 16 MR. PAYTON: I need a little guidance. I can keep 17 going. 18 THE COURT: It's up to you. Do you want to break 19 for lunch now? It doesn't make any difference to me. I have 20 nothing else. We can go to lunch right now, and reconvene at 21 1:15 and finish up this afternoon. 22 MR.PAYTON: Or I could go on for fifteen minutes? 23 THE COURT: Whichever you like. 24 BY MR. PAYTON: 25 Q Dean Lehman, we have heard some testimony about some of BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 113 1 the discussions back and forth on the committee. And I want to 2 focus your attention on just a couple of areas, in particular 3 not go back over a lot of things. I believe we heard 4 discussions, about the possibility of identifying 11 to 5 17 percent as a target range for under-represented minority 6 enrollment at the law school that was included in one of the 7 drafts of the policy, do you recall that? Do you recall that 8 was testified to? 9 A I'm just hesitating on the word "target range." The 10 first draft of Professor Lempert's -- I did refer to the 11 numbers 11 to 17 percent. I think it was describing the past 12 -- the recent history of the law school. The recent range that 13 we had experienced and was describing it as exemplary of the 14 kind of meaningful numbers that create the kind of classroom 15 dynamic that we're looking for. That draft had those numbers 16 in it, but not that led to a significant discussion. 17 Q What's your memory how that discussion came up, the end 18 of the discussion as there are no numbers in the policy? 19 A Right. My -- 20 PLAINTIFF: Excuse me, your Honor. I'm concerned 21 here if we're getting into hearsay about what others may have 22 said because they've had the opportunity to bring witnesses in 23 to talk about this, and all the committee members are faculty 24 members. 25 THE COURT: I think he's asking what his BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 114 1 recollection was and why they didn't put numbers in. 2 MR. PURDY: As long as it's -- not specific 3 discussions. 4 THE COURT: Are you asking generally? 5 MR. PAYTON: He's a member of the committee. 6 THE COURT: He may answer. 7 A Well, I can say more directly what my views were the 8 numbers which haven't changed. I thought and this ultimately 9 was the view of the committee that it is not appropriate to put 10 any range of numbers into the policy. I came -- and this was 11 part of the discussion about Reagan and Reagan was of a 12 different view initially -- all of us, I think were of the view 13 that we needed to have a policy that was lawful. It's a bad 14 thing for a law school to adopt a policy that's not lawful -- 15 BY MR. PAYTON: 16 Q Or anybody else? 17 A Or anybody else but I think especially a law school, 18 especially our law school. And that was part of our charge was 19 to make sure that our policy was legally appropriate, that we 20 would conduct our admissions system in a way that comported 21 with the law as we understood it. And we all understood the 22 governing authority to be Bakke. And it was quite clear in 23 Bakke, Judge Powell, and joined by four other justices that 24 struck down the Davis policy because it was a quota system and 25 my view was we should not do anything that could lead to moving BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 115 1 in the direction of a quota system. 2 Now, Reagan expressed a different view. His view 3 was that these were just guidelines, this was permissible 4 under Bakke and this was perfectly fine and we could defend 5 it. But I wanted -- and all of the committee at the end I 6 think -- but I think all of us -- a lot of us were of the view 7 that we wanted to be conservative on this. And the risk that 8 exists when you put numbers in, even as a guidelines is that, 9 your know Dennis Shields might leave, there would be a new 10 admissions officer who would come in, who would not have been 11 party to the conversation, they would see these numbers and 12 they would register in their mind and become something like 13 that. 14 So I wanted the numbers out, Dennis Shields wanted 15 the numbers out, Ted Shaw wanted the numbers out, and Rick 16 Lempert quickly moved to agree -- he was opposed to taking 17 them out initially. 18 Q Okay. I'm going to move to another subject about the 19 committee's discussions and deliberations. Do you recall any 20 discussion that the committee had about an early draft of the 21 policy that talked about the delivery of legal services to 22 minority populations? 23 A I actually recall just from Rick Lempert's testimony that 24 he had a draft that referred to that as a goal for the policy 25 and that led me to -- and my memory is a little bit fuzzy on BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 116 1 this, but my -- I have a sense that the reason that came out 2 was this part of the same discussion that Justice Powell's 3 opinion had in Bakke -- Davis had offered as a justification to 4 their policy the delivery of medical services to under-served 5 communities. And Justice Powell had said whether or not that 6 might in fact be a legitimate justification at some point, it 7 was not proven by facts on the record in that case, and 8 therefore it wasn't adequate. And so the question is well, you 9 know, could we design a policy that would promote that goal and 10 make that case for the legal profession. And, again, we didn't 11 have that case made in front of us at that time and it seemed 12 insufficiently cautious to go in that direction in drafting the 13 policy. 14 Q I'm jumping ahead, once we get to the spring of 1922, 15 April, the committee makes a recommendation that is the policy 16 you have, the faculty adopts it. 17 A Yes. 18 Q Were you at the faculty meeting? 19 A Yes, I was. 20 Q And the faculty adopted the policy and that is the policy 21 now? 22 A Yes, it is, sir. 23 Q Now a couple years later you become the Dean? 24 A Yes. 25 Q And this becomes something that you have some greater BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 117 1 responsibility for, the Director of Admissions reports to you. 2 A Yes, that's right. 3 Q And reported to you starting in 1994? 4 A Yes. 5 Q Since you have been Dean, 1994, to right now has the 6 Admissions Office carried out the policy that is in Exhibit 4, 7 the 1992 policy? 8 A As best I know, yes. 9 Q Are there any aspects of the policy that aren't being 10 fully carried out to your satisfaction? 11 A There's one part. In the policy after the -- after the 12 initial discussion of grades and LSAT, there's then a 13 discussion of two circumstances where you might take people 14 with relatively low LSAT. In the first circumstance where 15 people -- where there's reason to believe that someone will out 16 perform the numerical predictors. So this is the first Example 17 X. 18 Q Reason to be skeptical. 19 A Reason to be skeptical, that's the language. 20 In the paragraph that follows or two paragraphs 21 shortly after that Example X there's a recommendation from the 22 committee where we thought it would be good to identify 23 students who are admitted in significant part because of this 24 consideration, this belief that apart from everything else in 25 the file there's reason to be skeptical of the numerical BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 118 1 predictors of law school performance. There's a 2 recommendation that the Admissions Office should identify 3 those people and track their actual law school performance to 4 see if this kind of skepticism that you could have because 5 perhaps, for example, their undergraduate grades were better 6 than their SLAT score would have predicted, to see if that 7 actually does carry forward into law school. And that 8 tracking has not happened although I've asked my assistant 9 deans of admissions to make it happen. 10 MR. PAYTON: This might be a good time to break for 11 lunch? 12 THE COURT: We'll reconvene at 1:30. 13 (Court in recess.) 14 15 16 17 18 19 20 21 22 23 BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 119 1 MR. PAYTON: Good afternoon. Before we begin, Your 2 Honor, I'd like to introduce John Pickering, a member of our 3 defense team. 4 THE COURT: Welcome. Nice to see you. My law clerk 5 thought it was you. It's a pleasure to have you. 6 BY MR. PAYTON: 7 Q Dean Lehman, I want to ask you some questions about the 8 actual policy that's Exhibit 4 in this, Exhibit 4. 9 MR. PAYTON: I don't want to be repetitive but there 10 are some things that I'm going to go over with the Dean -- 11 THE COURT: That's fine. 12 BY MR. PAYTON: 13 Q Dean Lehman, do you have a copy of Exhibit 4 in front of 14 you? 15 A Yes, I do. 16 Q Let me just read the very first sentence of the policy. 17 "Our goal is to admit a group of students who 18 individually and collectively are among the most 19 capable students applying to American law schools 20 in a given years." 21 The Court, the Judge has raised some question about 22 how we go about defining, we, the law school, define who we 23 are. Are we selective, elite. Can you tell all of us how 24 this policy is defining who it is it wants to be the students 25 at the law school? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 120 1 A Well, this first sentence and the first paragraph really 2 in its entirety is about the history and tradition of the law 3 school. And it is something -- 4 THE COURT: I want to hear this, but just so -- 5 since it's addressing a question that I asked I am very 6 sensitive to the fact that the university and in particular 7 the law school have a right to define what their goals are and 8 who they want, and so forth. My question wasn't directed 9 towards that because you and I talked about -- even Justice 10 Frankfurt talked about the independence of school, my point 11 was that as that paragraph says the university has made a 12 choice, and that's their choice. And I'll hear it, and I have 13 no problems. That was my point -- 14 MR. PAYTON: Oh, no, I'm taking it in exactly that 15 spirit, and I'm asking the Dean to sort of explain what the 16 law school is and how it defines itself. And this policy is a 17 definition -- 18 THE COURT: I understand it. I've read it many 19 times. 20 A Michigan, I think is a very special place, and I feel 21 privileged to a member of the faculty, and to be the Dean of 22 the University of Michigan Law School. I think the first 23 paragraph is really talking about the history of the school. 24 It was founded in 1859. And over the course of the last 25 hundred and forty years, I think we have come to exemplify what BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 121 1 a great public institution can be, what a great public law 2 school can be. I think when we look at what our graduates have 3 done in the world, not only in representing their clients but 4 -- in a significant part of representing in their clients, but 5 beyond that, in serving their communities, serving the bar, 6 serving society, we're very proud of what they have done, what 7 our graduates have done. And we don't think it's just because 8 of who they were when they came to the law school, we think 9 it's also because of what they've experienced at the law 10 school. I think most of us who graduated from law school feel 11 that something special happened to us while we were at 12 Michigan. And our goal is to make sure that we continue to 13 produce for society, and for the bar, graduates who exemplify 14 what a great lawyer can be. And we think that it's especially 15 important that there be public law schools that are at the very 16 highest level. I believe quite seriously that our society would 17 not be as good a society if the only way people could have the 18 very finest education would be to attend a private school. 19 Q Go to the second paragraph. The second paragraph begins. 20 "Collectively we seek a mix of students with varying 21 backgrounds and experiences who will respect and learn from 22 each other. We hope our students will find in their peers 23 both rich resources for learning and the kind of sustained 24 friendships that help in getting over hard times and make the 25 good times yet more pleasant. We hope professors will see in BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 122 1 their students one of the rewards of teaching at this school." 2 What's this paragraph talking about? 3 A I really like this paragraph. This is about -- this is 4 about what kind of a community we are. This is about -- every 5 word in here says something special about our community. I 6 think the mix of students, the students respect each other, who 7 learn from each other. The fact that we are -- we're trying to 8 assemble a group of students who will find in their peers 9 people to learn from and sustain friendships. All of those are 10 important. We're trying to provide the kind of learning 11 environment for our students where they can be transformed 12 intellectually and socially. 13 Q Okay. We're talking about generally I think in this case 14 how the law school goes about selecting those students. In 15 selecting those students how important are factors like grades 16 and LSAT scores? 17 A They're quite important. 18 Q Are they the most important factors? 19 A It's hard to say, you know, what is the most important 20 factors, as I said when you're reading of files. But if I had 21 to identify the most important factors --I mean -- say about 22 grades, a gradepoint average is not a very significant standing 23 alone. I don't think you need -- we have in the file the 24 whole transcript, so we can see how a student performed as a 25 undergraduate in an entire curriculum. What choices they made BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 123 1 about what courses to take, how difficult they were, and how 2 they performed, and what the pattern was over time, and all of 3 that. It's not just straight up or straight down. It can vary 4 from year-to-year, semester-to-semester. That's very 5 important. The transcript and where they went to school as an 6 undergraduate so we can sort of adjust for how difficult we 7 think the undergraduate curriculum was. All those kinds of 8 things are I think very important because the LSAT test is 9 important because it goes to this first part of the policy 10 about trying to predict as best we can how well someone will do 11 in law school classes. 12 Q If you go to page three, there's a sentence right there, 13 a sentence right in the middle of page three and I'm going to 14 read it out. It reads, 15 "Our most general measure do you see that? 16 A There's two sentences that begin -- 17 Q Keep going. 18 "Our most general measure predicting graded law 19 school performance is a composite of" -- 20 Let me just stop before I finish with that sentence. 21 What is graded law school performance? 22 A Well, there's ungraded. A lot of the way students 23 perform in law school is not graded. We - in most of our 24 classes, in fact, especially in the first year, classroom 25 participation isn't graded except in unusual cases usually. The BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 124 1 grades come performance on the final exam. But students 2 perform in law school orally in class. And then outside of 3 class they perform by being on journals. They perform the moot 4 court competition, all of the different academic organizations 5 and nonacademic organizations. All of those are part of how a 6 person is as a member of the community. 7 Q I'm sorry, I must have misunderstood. The non-graded law 8 school performance is also important in someone's legal 9 training I take it. 10 A Yes. 11 Q Let's go back to this sentence. 12 "Our most general measure predicting graded law 13 school performance is a composite of an 14 applicant's LSAT score and undergraduate 15 gradepoint average..." do you see that? 16 A Yes. 17 Q Has there -- let me keep going. 18 "However, each of these measures is far from 19 perfect. The asserted connection between graded 20 law school performance and the likelihood of 21 success in practice is based more on faith and 22 anecdote than it is on rigorous research findings." 23 A Yes. 24 Q Has there been research on this link between graded law 25 school performance and the success in practice? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 125 1 A You mean before this policy was written or since then? 2 Q Since then. 3 A Yes, there's been some since then. There's been a study 4 that was done by Professor Lempert and Professor Chambers and 5 Jerry Adams. One of the things it does is look at the 6 connection between grades in law school -- just throughout 7 school, and different measures of success in practice. 8 Q And what kind of point is there? 9 A Very weak. I don't remember exactly what the percentages 10 are, but it's not very strong. 11 Q There are several places throughout the policy, we've 12 seen them and I don't think I need to direct you to them, but 13 there are several places throughout the policy that talk about 14 -- and I'm generally paraphrasing that someone who has higher 15 grades and/or higher test scores has higher chances off 16 admission. 17 A Yes. 18 Q Okay. If, in fact, the link that you just mentioned is 19 weak, why consider GPA and LSAT scores? 20 A Well, one of the things we're about is trying to predict 21 how people do in the practice afterwards, and contribute to the 22 world. I think -- let me break it up. 23 There are several reasons for this. One, is this 24 study that was done of Michigan graduates as people who had 25 all been through the Michigan experience and training after BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 126 1 having been offered admission and had come in here. So that 2 group then goes off and is offered and does things that are 3 measured in the study. 4 The variation in that is small. That doesn't mean 5 that if we accepted randomly from our applicant pool that we 6 would then see the same results afterwards. So we're seeing 7 grades in law school for our students who are wonderful 8 students, excellent students, not correlating very much to my 9 variations afterwards. 10 I actually suspect if you tested further and further 11 with more refined measures you might find more of a 12 connection. As a teacher I kind of hope so because I think 13 that part of -- I know that what I grade for is real, it's 14 significant. And I actually think it's more significant for a 15 practice than these studies have found so far. But I think 16 it's significant. 17 But then even beyond that what happens during these 18 three years is important, too. And so part of what we're 19 grading -- part of what we're doing when we're grading, is 20 we're not -- is giving feedback. We are telling people how 21 you are doing on what you're doing so far. And people I think 22 learn from the feedback that they get from grades. So even if 23 it didn't correlate at all afterwards, I still think the 24 grades would perform a legitimate and helpful function. 25 Q You were present when Erica Munzel the current Director BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 127 1 of Admissions and when Dennis Shields the preceding of Director 2 of Admissions said that in reviewing application files they 3 don't look at index scores, did you hear that? 4 A Yes. 5 Q Did you know that? 6 A Yes. 7 Q How did you know that, through the committee? 8 A Well, we didn't look at index scores per se I don't think 9 very much in the committee. But -- I mean, I've talked with 10 both Dennis and now Erica on how they look at individual files, 11 and I've seen files, a fair number of files, and the numbers 12 are not in the file. 13 Q Okay. On page seven of the policy, just go to page 14 seven. At the very bottom it reads. 15 "During the last two years" -- do you see where I 16 am? 17 A Yes. 18 Q "The Dean of Admissions has consulted with the 19 faculty on a portion of the admissions decisions. 20 This has allowed the faculty as represented by 21 its admissions committee to tell its Dean of 22 Admissions how a mix of faculty evaluate the 23 different kinds of strengths and weaknesses that 24 are found in application files." 25 Do you see that? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 128 1 A Yes. 2 Q Okay. How important is that in -- 3 A It's applicant file, actually. 4 Q I'm sorry? I forgot what I said. 5 A Application files. 6 Q Applicant files, okay. How important is that? 7 Q My mistake, I meant. 8 A Your mistake is not important at all. 9 Q How important is it that the faculty play that role in 10 looking at files? 11 A I think it's very important. I think that our -- there 12 emerged over time kind of a specialization in the legal 13 academy. And so the people who are the best admissions 14 officers are not people who are faculty members. They don't 15 have experience as a faculty member. And so the best way for 16 an admissions officer to come to understand the values of the 17 faculty and what matters in the classroom, what they're looking 18 for in the classroom is to talk about specific cases. I think 19 this is like why we teach cases in law school, why we use the 20 case method. You learn about general principals by studying 21 specific examples in specific cases. 22 So I think -- there's actually two ways, but I think 23 it's about helping the Dean of Admissions to get a sense of 24 what the faculty considers significant and important for 25 teaching. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 129 1 And it's also a good way I think to keep the faculty 2 in touch with what's happening in the administration of the 3 law school. The faculty sets policy. They then entrust it to 4 me, and to all the administrative staff to faithfully execute 5 that policy. I think it's helpful for them to get a more 6 grounded sense of what it actually turned out to be on a daily 7 basis. 8 Q I want to go to page eight of the policy? 9 A Yes. 10 Q At the bottom of the page. I'm going to read that 11 paragraph so you can see where we are in the policy. 12 "As we have noted, some students will qualify for 13 admission despite index scores that place them 14 relatively far from the upper right corner of the 15 grid. There are two principal types of reasons 16 for such admissions. First, there are students 17 for whom we have good reason to be skeptical of an 18 index score based prediction." 19 Do you see that? 20 A Yes. 21 Q This is actually the part of the policy we were referring 22 to before we broke where you said that you wanted there to be 23 more of an analysis of how these students did; is that correct? 24 A I was referring to the -- there's a paragraph on page 25 nine in the middle. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 130 1 Q That's the middle paragraph on the next page? 2 A Yes, that's right. 3 Q I'm going to go to the bottom of page nine. It reads. 4 "The second sort of justification for admitting 5 students with indices relatively far from the upper right 6 corner is that this may help achieve that diversity which has 7 the potential to enrich everyone's education and thus make a 8 law school class stronger than the sum of its parts. In 9 particular we seek to admit students with distinctive 10 perspectives and experience as well as students who are 11 particularly likely to assume the kinds of leadership roles in 12 the bar and make the kinds of contributions to society 13 discussed in the introduction to this report." 14 Do you see that? 15 A Yes. 16 Q Is there a particular set of experiences or perspectives 17 that this part of the policy is looking for? 18 A A particular -- 19 Q Are there particular perspectives or experiences that 20 this part of the policy is looking for? 21 A This part of the policy is talking about the diversity, 22 about the range of -- the range of experiences that makes -- 23 the language, "the whole greater than the sum of its parts" 24 makes the law school class stronger than the sum of its parts. 25 This is not about any particular kind of diversity. This is BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 131 1 about the whole range of perspective and experiences. It's the 2 perspectives and experiences that inform the study of law in 3 legal institutions. That's what we're interested in. We're 4 interested in the kinds of perspectives and experiences that 5 will -- could -- there's no guarantee, but there could lead 6 people to say something surprising, I guess about law in the 7 classroom. 8 Q Before we get to the next section, which we're going to 9 spend some time on, I want to ask how important it is that the 10 student body contain this general diversity of experiences, 11 backgrounds, and perspectives? 12 A Oh, it's absolutely essential. It's absolutely essential. 13 Q Now, I want to talk about -- go to page 12. I'm just 14 going to introduce where we are on page 12. We've all heard 15 this several times, at the very top. 16 "There is, however, a commitment to one particular 17 type of diversity that the school has long had and which 18 should continue. This is a commitment to racial and ethnic 19 diversity with special reference to the inclusion of students 20 from groups which have been historically discriminated 21 against, like African-Americans, Hispanics, and Native 22 Americans who without this commitment might not be represented 23 in our student body in meaningful numbers. These students are 24 particularly likely to have experiences and perspectives of 25 special important to our mission." BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 132 1 Is this commitment to this as it says, "one 2 particular type of diversity" different or separate from the 3 general diversity we've just discussed? 4 A No, it is a part of the general commitment to diversity 5 that we've discussed. It is something that we -- we ask the 6 Dean of Admissions to pay attention to diversity. And we say, 7 pay attention to diversity of the class and all its dimensions. 8 And then we say there's one particular type that we 9 are singling out and the reason for that, the reason for 10 mentioning it especially comes towards the end is we're 11 describing a kind of diversity where without this commitment 12 might not be represented in our student body in meaningful 13 numbers. 14 So we're here talking about diversity generally. 15 And then there's an example of where we say if we didn't pay 16 attention this kind of diversity might not happen and would 17 not be likely to happen by accident. 18 Q Now, the sentence that says -- which includes, "groups 19 which have been historically discriminated against," what about 20 Asian Americans They've been historically discriminated 21 against; haven't they? 22 A Yes but -- there's two parts here to the reference of 23 African-Americans, Hispanics, and Native Americans which says, 24 "from groups which have been historically discriminated 25 against, like, African-American, Hispanics and Native BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 133 1 Americans, who without this commitment" -- like I mentioned 2 before -- "who without this commitment might not be represented 3 in our student body in meaningful numbers." That's not the case 4 with Asian Americans. 5 The second half -- the first half, yes, Asian 6 Americans have been historically discriminated against like 7 other groups in society. 8 Q What is the significance of groups that have been 9 historically discriminated against? Why is that some special 10 focus here? 11 A It's because we're a law school, and we're talking about 12 the law in a legal institutions. And as we teach about a whole 13 range of -- there are courses in areas of law about 14 discrimination per, se. But as we're teaching about the law 15 more generally there are a variety of issues which are 16 influenced in part by the experience of historic 17 discrimination. Sometimes, for example, I teach in areas about 18 the labor market and the way people act in the labor market. 19 And sometimes people assume that people will always act in 20 their own rational self-interest. And they will look at 21 behavior and say, well, gee, that seems to be self-destructive 22 behavior, that seems not rationally self-interested behavior. 23 And one of the reasons that explains it is that this person has 24 grown up in a context where they have been told, you know, 25 there is current discrimination in society, there's been BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 134 1 historic discrimination in society. So your level of trust 2 should be lower than what it would be if you hadn't had that 3 experience. And that then can shape people's discussion and 4 reaction to a whole variety of legal doctrines. 5 Q Let me go to the next paragraph as we've also spent a lot 6 of time on what's in the next paragraph. It begins. 7 "Over the past two decades, the law school has made 8 special efforts to increase the numbers of such students in 9 the school. We believe that the racial and ethnic diversity 10 that has resulted has made the University of Michigan Law 11 School a better law school than it could possibly have been 12 otherwise. By enrolling a `critical mass' of minority 13 students, we have ensured their ability to make unique 14 contributions to the character of the Law School; the policies 15 embodied in this document should ensure that those 16 contributions continue in the future." 17 What does critical mass mean? 18 A I agree with much of what Dean Syverud said when he 19 testified this morning. I think that the key reference here -- 20 well, there's two references that are important to me. One is 21 in the paragraph before, the reference to meaningful numbers. 22 And then that second half of the sentence where it says, "we 23 have ensured their ability to make unique contributions to the 24 character of the Law School." It is the case that without 25 meaningful numbers of minority students, it's hard for minority BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 135 1 students to make unique contributions as oppose to making 2 contributions that leaves them as a spokesperson for their 3 race. 4 What to me a critical mass entails is having a 5 sufficient presence of minority students that the classroom is 6 not flat. That the classroom is hot, where people are talking 7 and engaging openly, candidly as individuals, and drawing on a 8 broad range of backgrounds and experiences which are personal. 9 That's when the classroom is working really, really. well. 10 So what's the critical mass of minority students is 11 having a sufficient minority students that in those areas, in 12 those dimensions we -- you're talking about issues which 13 relate to race. And as we've seen that can be such a broad 14 range of issues. Then you have that kind of open and engaged 15 honest dialogue. 16 Q Is critical mass a particular number of under-represented 17 minority students? 18 A No, it's not a particular number. 19 Q Is it a particular percentage? 20 A No, it's not a particular percentage Is it a particular 21 range of numbers or range of percentages of under-represented 22 minority students? It's not a particular range of numbers or 23 percentages. 24 Q Well, how do you know when you get there? 25 A When you get there, when you have a critical mass? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 136 1 Q Right. How do you know when you have the critical mass? 2 A You know when you have a critical mass when you see the 3 kind -- it is connected to context. And in a given context, 4 sense a critical mass when you have -- what we might think of 5 as kind of break-through movements in the class, break-through 6 conversations where people say I heard something new today that 7 shook a pre-conception of mine. Or I heard a perspective that 8 I might not have had any pre-conceptions at all, but I learned 9 something different. I learned a different perspective on a 10 legal problem or a legal issue that now going forward I am 11 going to incorporate into my tool kit so that I can try now to 12 see the world through now the eyes of a different classmate in 13 a different way. 14 So you recognize it through the interactions of 15 people. 16 Q Is it important for there to be a critical mass of 17 under-represented minority students in each class? 18 A Ideally you'd to like have a critical mass of 19 under-minority students in every class. That would be ideal. 20 Q I guess you asked when Professor Raudenbush testified, 21 and he took those categories what we talked about in the 22 first-year section, half section, moot court, moot court 23 competition, et. cetera, and tried to come up with some view 24 of that statistically given numbers of under-represented 25 minorities students in the student body. Was that helpful in BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 137 1 trying to understand where the law school may be with respect 2 to critical mass? 3 A It was, actually. I hadn't studied his expert report 4 actually before he testified so I saw the tables to refresh in 5 the courtroom. And I think they actually captured something 6 significant in a statistical way that I think most of us in the 7 school know impressionistically from our experience. 8 I do think that the number three is significant. I 9 think that the dynamics are different when there is, say, one 10 African-American students in a class, versus two, versus 11 three. I think at three or more you start to see a different 12 kind of conversation, more opportunities for differentiation, 13 disagreement, individualization of the students. 14 And I think what Professor Raudenbush's study did 15 was it connected the number three in the small, individual 16 classes, to the overall general class composition as a whole. 17 And I thought that was actually helpful. 18 Q Okay. Now, when the Director of Admissions is -- strike 19 that. 20 Since you've been Dean have you ever had a 21 conversation with the Director of Admissions Mr. Shields or 22 Ms. Munzel where you said get me that number of 23 under-represented minorities? 24 A No. 25 Q Or get me that percentage of under-represented BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 138 1 minorities, or that range? 2 A No. 3 Q Have you ever had discussions with them about what you 4 understand to be the dynamics in classes given what's going on 5 from members of the faculty? 6 A Yes, yes, I try to give -- when faculty colleagues talk 7 to me and say I like this, or I don't like this, or something, 8 I try to pass that on to the Dean of Admissions. 9 Q Have you ever been in a circumstance since you've been 10 Dean where in your judgment that while talking to your faculty 11 you have more than a critical mass of under-represented 12 minority students? 13 A Let me try to say what I think I understand you to be 14 asking when you say more than a critical mass. What I would 15 understand that question to mean is are we at a point where -- 16 there would come a point -- there's a point where adding 17 additional racial and ethnic diversity to the class is still in 18 a token range and isn't getting you the educational benefit 19 that you want. 20 Then there's this period which we think of as -- 21 using the term from the policy "critical mass" meaningful 22 numbers where additional racial and ethnic diversity of 23 classes is having a payoff in the number and frequency of 24 educationally committed interaction. 25 Then there comes a kind of period of diminishing BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 139 1 marginal, the term, where you say the additional benefits 2 that come from additional members of historically -- 3 under-represented minority groups, the additional educational 4 benefits for the entire class decline. So have we been in a 5 -- has any faculty ever said to me I think we're in that mode 6 now, where we're seeing diminishing marginal returns to the 7 university, no, no one ever said that to me. 8 Q Into the policy there's attached a grid. Do you know 9 what I'm talking about? 10 A Yes, yes, I do. 11 Q Was there a time when you were Dean when there were grids 12 -- not this grid -- but grids like this which seemed to give 13 descriptions of prior year admission decisions broken out by 14 more than simply total class or did it by race? 15 A Yes, yes, there were. 16 Q And what happened to those grids? 17 A I asked that those grids no longer be produced, 18 calculated, broken down by race. 19 Q Now, I believe this was in 1995, why did you do it? 20 A Well -- I have to think what the year was. I assume 21 you're right about that. 22 The reason why I did it, is -- well, it actually 23 connects back with what I was saying about numbers in the 24 policy when I was a member of the committee. One could look 25 at grids such as these -- one can -- even without having them BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 140 1 on the basis broken out by race, you can look at a grid like 2 this and you can misunderstand what this is doing. You can 3 look at the grid here which is not broken out by race, it's 4 just all applicants and you can get the sense that this is 5 intended to guide decision-making for the Office of 6 Admissions. They're suppose to be admitting a certain 7 percentage, you know, thirty-six out of four hundred and 8 ninety-nine, or whatever, in SLAT score, thirty-eight to 9 forty-one, and GPA of 3.5 to 3.74. 10 Q Was this used to make admissions decision? 11 A This? No. This grid was never used to make decisions. 12 No, that's not the purpose of it. 13 The purpose of attaching this to the policy 14 initially was to give a visual representation to the idea that 15 is in the policy that says higher grades matter, higher 16 undergraduate grades matter; higher SLAT scores matter in our 17 admissions policy. And the higher your grades and the higher 18 your SLAT score -- on the grid you can see it moves you 19 farther towards the top. And then in the aggregate since they 20 matter individual cases what you would expect see in the 21 aggregate is a higher percentage of offers to individuals, the 22 higher their grades and SLAT scores. Or as we say for 23 shorthand in the policy the higher their index score. 24 And by the way you asked me earlier about -- was I 25 surprised that index scores aren't used per se, index scores BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 141 1 aren't used per se, the grades and SLAT scores are used. So 2 you know, the score per se isn't used, but the elements of it, 3 about which we have much more rich detail are in. 4 But another reason why I wouldn't want to have this 5 be used as per se, as a decision-making tool, is that these 6 grades on the side are -- they don't show -- you know, some 7 undergraduate schools have a lot of grade inflation, and some 8 undergraduate schools don't have a lot of grade inflation. 9 And, so, if we can't pay any attention to where 10 somebody went to school and just looked at grades we would be 11 missing a lot of relevant information. 12 So that's why as a decision-making tool this isn't 13 used as a tool. It is used to describe for us how the class 14 is along these dimensions in any given year, and what our 15 decisions have been. 16 But given all that, given that it's not useful as a 17 tool, my concern was twofold: One, that if we continued to 18 produce these tables by race, and they weren't used, they 19 would be misunderstood to mean, or to suggest, or to incline 20 that we have two different decision-making tools when, in 21 fact, it's not a decision-making tool for anyone. But also 22 just having them there can reinforce I think -- sometimes in 23 people, an approach to a file that is less than 24 individualized. And it could include -- it could lead an 25 admissions officer to maybe even subconsciously start to use BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 142 1 these as decision-making tools which is not what we want. 2 Q Dean Lehman, what would happen if the law school couldn't 3 use race or ethnicity as a factor in its admissions process? 4 What would happen to the student body? 5 A Well, we actually know pretty well what would happen 6 because we have a peer school, a law school, which is the 7 University of California Berkeley, Boalt Hall. Boalt Hall is 8 in virtually every respect Michigan's counter-part on the West 9 Coast. 10 Q What do you mean by that? 11 A It's a great public law school. They are committed to 12 public values. They're committed to the citizens of California 13 in the way that we are in Michigan. And they have outstanding 14 a faculty. Really, among the best law professors in the world 15 teach there. 16 And until the Regents' policy was adopted there, 17 their student body looked very, very similar to ours. There 18 was some difference, but very, very strong. And their 19 graduates go on to do great things in the world. Since the 20 adoption of the Regents' policy and ultimately Proposition 21 209, as a voter issue in California we had seen dramatic 22 reduction in the number of under-represented minority students 23 at Boalt Hall. And that has persisted over time. It's fallen 24 to what I would describe as token level. And -- as Engler 25 described as token level. In fact, the first day of the BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 143 1 trial, when I went out in the hallway, there were students 2 from Boalt Hall who had come out here to be here for the trial 3 and I talked with them. They confirmed what I heard from the 4 prior dean. 5 In response because the faculty at Berkeley thinks 6 about pedagogy in the same way that we do, they have been 7 trying very hard to come up with a policy that is truly race 8 blind, but nonetheless, produces a racially diversed student 9 body with respect to under-represented minority students. So 10 is UCLA, so is Texas. And these are very smart people. They 11 are doing everything they can and they have not gotten beyond 12 token levels of enrollment of African-Americans at either of 13 those schools. 14 Q Dean Lehman, what about recruiting more for 15 under-represented minority students so that you get more into 16 your applicant pool? 17 A We do everything we can to recruit under-represented 18 minority students into our applicant pool. We send our 19 admissions team, our Dean of Admissions, and members of her 20 staff out around the country to talk up Michigan. They go to 21 historically black colleges to try to encourage applications 22 and I believe we have -- we do -- I don't know of anything more 23 we can do on the recruiting of applications. And then after 24 people apply, we recruit very heavily, and especially after we 25 offer admission. Faculty make phone calls. Students make BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 144 1 phone calls. We invite the students out to campus to see the 2 school, to talk to students and faculty about what their 3 experience is like. We write letters, make phone calls. I do 4 not believe more recruiting is in any way an answer. 5 Q Dean Lehman, do you believe it is possible to receive an 6 excellent legal education in a law school environment that is 7 not racially and ethnically diversified? 8 A I do not believe it's possible to receive an excellent 9 legal education in such an environment. 10 Q Let me ask you this, Dean Lehman, what's the extent to 11 which the University of Michigan Law School takes race and 12 ethnicity into account in its admissions process? 13 A Well, on the individual level the extent to which we take 14 race and ethnicity into account is actually going to vary by 15 individual. And it's going to depend on the admissions file, 16 and what they say in their essays about who they are, and the 17 extent to which race is part, their experiences. So for some 18 students it can be very significant, and for some students not 19 so significant. 20 In the aggregate when you talk about the class as a 21 whole, we take race into account enough to achieve a critical 22 mass, if you will, a meaningful number of under-represented 23 minority students enrolled in the class as long as we can do 24 so consistent with the overriding objective of ensuring that 25 we only enroll extremely qualified and talented students. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 145 1 So if we were forced to make a choice between the 2 meaningful numbers and the critical mass question, and the 3 high-quality student question, we would go towards high 4 quality. Right now, we're not forced to make that. 5 Q THE COURT: I'm sorry, if you were forced to make 6 that decision you would go high quality? 7 THE WITNESS: If we thought that in order to have a 8 critical mass of students, of minority students enrolled in 9 the law school, we would be required to admit students who we 10 do not believe could be the intellectual peers of their 11 fellows in the classroom. We would then fall short of having 12 a critical mass and under-represented -- 13 THE COURT: It's more important to you to admit 14 students in that category as oppose to the critical mass? 15 THE WITNESS: Yes. 16 BY MR. PAYTON: 17 Q Does the law school operate a double standard? 18 A No -- well, let me say -- I mean if -- I assume you're 19 not asking do we take race into account as a factor? 20 Q Take race into account. What I'm asking -- the second 21 question which is: Is there a double standard when the law 22 school evaluates this application file and this application 23 file, and this application file? 24 A No. 25 Q Dean Lehman, you were present when Lee Bollinger, now BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 146 1 President of the University testified that when he became Dean 2 one of his priorities was to revise, completely revise the 3 process by which the law school makes decisions about admitting 4 or not admitting students, and you were on the committee that 5 he put in place to do that. You're now the Dean. Do you have 6 any concerns as Dean about how admissions decision are made at 7 University of Michigan Law School? 8 A As Dean, I have no concerns about how admissions 9 decisions are made at the law school. I think -- I think this 10 is a fantastic admissions policy. I'm proud to have 11 participated in drafting it. I have talked about it with other 12 law schools. And have said, I believe, that this policy 13 achieves what we are -- I think almost all the law schools are 14 interested in achieving in terms of educational environment and 15 atmosphere. And it does so in a way that is conservative. It 16 is in my view really constitutional, and that's an important 17 value as I mentioned earlier for law schools. I think this is a 18 terrific policy. And I think that we implemented exactly as it 19 was intended to be implemented. 20 MR. PAYTON: No further questions. 21 MS. MASSIE: Could we take a short break? 22 THE COURT: We can take a break. This will be our 23 afternoon break. 24 MS. MASSIE: Great. 25 147 1 (Court back in session.) 2 THE COURT: Okay. Dean, let me just 3 clarify one question that I asked before. I don't 4 remember the exact question, a different court 5 reporter too. 6 But it had to do with the relative 7 importance that you as the Dean place on if you had 8 to give one or the other, either the academic 9 standing, I'll use that in a very broad sense. 10 The sense of qualifying good 11 qualified students versus critical mass, and your 12 answer was that good qualified students would take 13 precedent over critical mass? 14 A. Yes, that's actually in the policy itself. It says 15 there is one absolute baseline criterion upon which 16 we will not compromise. We don't want to admit 17 students who we think won't be able to make it. 18 It's not right and it's not fair. 19 THE COURT: I understand that. But 20 assuming that you had students that could all 21 probably make it, but you had to have a--and I know 22 this is not consistent with what the statistics and 23 what Professor Raudenbush and so forth testified to, 24 but in summation, assuming all students had that met 25 that criteria that at least either based upon grades GRUTTER -vs- BOLLINGER, ET AL 148 1 or based upon all the other criteria other than race 2 and you had to make a decision versus that versus 3 critical mass, that takes more precedent than 4 critical mass? 5 A. I'm not quite sure I'm following the question, your 6 Honor. I think what I've been trying to say is 7 that, to make it at Michigan you have to be really 8 good. 9 We reject two-thirds of our 10 applicants, and a lot of those people are very good 11 people. To make it at Michigan, you have to be 12 really good. 13 And the policy says we will not--the 14 idea is not to knowingly admit anyone who we think 15 is going to have trouble, you know. 16 THE COURT: Being really good. 17 A. In that level. 18 THE COURT: But that's more important 19 to you to have students that are really good in 20 terms of then to have perhaps students that are 21 really good, but not quite as really good and have 22 critical mass? 23 A. In an individual case you're going to--it's not so 24 clear. 25 THE COURT: If somebody said to you GRUTTER -vs- BOLLINGER, ET AL 149 1 you can have all really good students and you may or 2 may not have critical mass, you may but you may not 3 also. 4 Or you can have really good students, 5 maybe not in terms of the exact ones you would want 6 to, but students that would probably succeed and be 7 successful in your school, but the critical mass 8 would be there but it wouldn't be the same level. 9 You're saying it's the student 10 academically that can achieve this success that 11 you're looking for as opposed to critical mass, if 12 you had to make that decision? 13 A. I think I'm saying, yes. I think what I'm saying is 14 if in order to get to critical mass of 15 underrepresented minority students, we would have to 16 be admitting students who we thought there was a 17 significant chance they wouldn't make. 18 THE COURT: That's significant. 19 There's a chance that they would make it, but it's 20 not as good a chance significantly that they 21 wouldn't, obviously you wouldn't take them, it 22 wouldn't be fare to them or to the school. 23 But that there were ones that were 24 kind of on the cusp, but allowing them in would 25 certainly not reach the same level that perhaps the GRUTTER -vs- BOLLINGER, ET AL 150 1 other students will? 2 A. Well, there I mean if we're limiting ourselves to 3 students where we don't think there's a significant 4 chance that they won't make it, then diversity of 5 the class is a significant pedagogic value, and so 6 we will make trade offs in that range. 7 Once we're at the level where--and 8 it's a high level. But once we're at the level 9 where we think there's not a significant chance that 10 someone is going to have serious academic 11 difficulties, then at that point our interest in 12 having a critical mass of underrepresented minority 13 students it's comparable to our interest in having a 14 diverse student body generally. 15 In that we will say, well, this is 16 someone who will add significantly to the 17 educational experience. 18 THE COURT: But the bottom line is, 19 you would rather be a selective law school, you 20 think it's more important to be a selective law 21 school then to have critical mass if you can't have 22 both? Assuming you can't have both. 23 A. Well, to be a selective--actually I try not to use 24 the word selective in the same way-- 25 THE COURT: (Interposing) It's not GRUTTER -vs- BOLLINGER, ET AL 151 1 my word, I've only read it in the pleadings that 2 have been filed in this case. 3 A. Sure. I think we are forced to be selective because 4 we have many more people who want to come then we 5 have room for, so we have to make selections. 6 But I think beyond that we choose to 7 make selections in ways that, say, we want to have 8 really excellent students. And so that piece of our 9 identity, that commitment to being true-- 10 THE COURT: That kind of student. 11 A. That kind of student excellence, that is prior in 12 the policy. That's the dominant consideration. 13 THE COURT: Thank you. 14 MR. PAYTON: Your Honor, if you would 15 let me ask three or four questions along the same 16 line. 17 THE COURT: Yes, you may. Let me ask 18 this because you may have more than three or four 19 after that. 20 At Boalt Hall when they passed the 21 Proposition and I heard your testimony. Did they 22 also have a requirement out there that they have to 23 give the residents--don't they have a different 24 policy for residents in California than we do here 25 in Michigan? GRUTTER -vs- BOLLINGER, ET AL 152 1 A. I think it is different. I know they have a much 2 larger residents enrollment, but I also know that 3 it's much easier to become a California resident. 4 It's easier to sort of move in and 5 become a California resident and get residency 6 status in California then it is here. 7 THE COURT: But they have some kind 8 of very strong residency preference as opposed to 9 just a preference, if you know? 10 A. That's consistent with what I hear, but I don't 11 actually know for sure what it is. 12 THE COURT: And my last question is, 13 we heard some testimony somewhere down the line, 14 not from you but from somebody, that the dean is the 15 one that determines, you know, give or take what 16 percentage the class should be Michigan residents. 17 A. Yes. 18 THE COURT: And the testimony was 19 somewhere around a third give or take? 20 A. Yes. 21 THE COURT: Just curious, perhaps 22 more as a taxpayer than as having to do with this 23 case, how do you make that determination? 24 A. The percentage that I've been saying to Dean Munzel 25 in the last couple of years is that, at least 25 GRUTTER -vs- BOLLINGER, ET AL 153 1 percent and if we can get closer to a third, that's 2 great. 3 And I make that judgment, I guess, in 4 part out of some kind of overall sense of fairness. 5 On the one hand we're a public institution, we are a 6 Michigan institution and I believe that we need to 7 have a significant representation of Michigan 8 students there, kind of to be part of the character 9 of the school. 10 To be able to use to make illusions 11 and metaphors that are Michigan based, I think you 12 want them to still work in the classroom at some 13 level. 14 Why so low, why not a higher 15 percentage? 16 THE COURT: That would be my thought, 17 that why so low? 18 A. The reason for me has to do with the changing fiscal 19 and financial structure of the law school over time. 20 In the 1980s, the state subsidy for the University 21 declined in real terms. And some parts of the 22 university, including the law school, stopped 23 getting any significant pass through of state 24 subsidy. 25 And so our response was to turn more GRUTTER -vs- BOLLINGER, ET AL 154 1 to our alumni and ask them to support us the way 2 alumni of private schools actually support them. 3 And they have responded. 4 And so what we have gone to is kind 5 of a parody, I guess, between state residents and 6 alumni. Not 25 percent alumni children or anything 7 like that. 8 But what we have gone to it to say, 9 we will provide state residents a break on tuition, 10 not a big break but some break, about $6,000 a year. 11 We will still not be residency blind, we will still 12 try to make sure we get to at least 25 percent, and 13 preferably somewhat more than that. 14 But then all of that sort of implies 15 a certain level of competitiveness for the 16 residents. And we evaluate alumni children 17 according to that level of competitiveness. 18 In other words, we ask the question 19 if this person who is the child of an alumnus of the 20 law school were a Michigan resident, would they get 21 in or would they not get in, that is the standard 22 that we apply. 23 THE COURT: Okay, thank you. 24 MR. PAYTON: This is going to be a 25 few questions. GRUTTER -vs- BOLLINGER, ET AL 155 1 BY MR. PAYTON: 2 Q. Dean Lehman, I want to put the first part of the 3 discussion you just had with the judge in sort of 4 the context of how the policy defines it. 5 A. Yes. 6 Q. I'm not going to ask you to look because I think we 7 all now remember. On page eight there's a reference 8 to the two categories of students that the law 9 school will look at, even though they don't have 10 grades or test scores up in the right-hand corner. 11 And the first is, those students for 12 whom we have some reason to be skeptical that those 13 are going to predict their performance, do you 14 remember that? 15 A. Yes. 16 Q. That group of students, is that a group of students 17 that includes all races, all ethnic groups? 18 A. Yes. 19 Q. Simply that applies to all applicants potentially? 20 A. All applicants. 21 Q. Okay. Now, the second category, general category 22 which is on page nine is, and as it says, it is 23 students with indices relatively far from the upper 24 right corner that that may help achieve that 25 diversity which has the potential to enrich GRUTTER -vs- BOLLINGER, ET AL 156 1 everyone's education, and thus make the law school 2 class stronger than the sum of its parts, do you 3 remember that? 4 A. Yes. 5 Q. It's on page nine. Is that general category a 6 category that includes all students? 7 A. Yes. 8 Q. All races? 9 A. All races. 10 Q. And it is within that second general category that 11 there is this particular emphasis on racial and 12 ethnic diversity as that relates to underrepresented 13 minority students? 14 A. Yes, that's correct. 15 Q. So, the policy has two general categories of 16 students that they're all excellent students, but 17 they're still, you know, you don't require--you 18 don't look for them up in that upper right hand 19 corner because you want the diversity that they 20 bring to your class? 21 A. Yes, that's right. 22 THE COURT: Thank you. Intervenor. 23 CROSS-EXAMINATION 24 BY MS. MASSIE: 25 Q. Dean Lehman, the first couple of questions I want to GRUTTER -vs- BOLLINGER, ET AL 157 1 ask you have to do with some comments that 2 Dean Syverud was making earlier. 3 I think you were here for his 4 testimony, is that right? 5 A. Yes, I was. 6 Q. He was talking about the contact that White students 7 at Vanderbilt have typically had with members of 8 other races, probably in particular Black people, 9 but in any Non-white people, do you recall that? 10 A. Yes, I do. 11 Q. And do you recall what he said? 12 A. Not precisely. 13 Q. I'm sure I won't either, but I think he said 14 something about there was a range of different 15 levels of experience. That there was a fair number 16 of white students who came from relatively small 17 towns and cities in the south, where there was a 18 fair amount of interracial contact? 19 A. Yes, I remember that. 20 Q. Is that consistent with students at Michigan so far 21 as you know? 22 A. Well, we don't have very many students who come from 23 small southern towns, that part is different. But 24 the general point about there being a range of 25 background histories of contact and exposure to GRUTTER -vs- BOLLINGER, ET AL 158 1 students of other races, that is consistent with 2 Michigan, yes. 3 Q. Are you aware of any studies that suggest that most 4 white Michigan law students have had substantially 5 less contact with members of other races than what 6 Dean Syverud was suggesting for Vanderbilt? 7 A. The study that I know of Michigan law students that 8 talked about this question, and I can't recall the 9 details. Was Gary Orfield's study of Harvard law 10 students and Michigan law students that was done, I 11 guess, about two years ago. 12 And I believe the conclusion of that 13 study was that there are significant numbers of 14 Michigan students who come to the law school with 15 very little prior contact with people of other 16 races. That's my impression. 17 Q. Something like 80 percent other students at Michigan 18 have little or no contact with anybody of a 19 different race is at all meaningful, is that 20 consistent with your recollection? 21 THE COURT: Sustained. Professor 22 Orfield is going to be here, so let's get it from 23 him. 24 MS. MASSIE: I'll be sure to ask him 25 about it. GRUTTER -vs- BOLLINGER, ET AL 159 1 THE COURT: I'm sure you will. I 2 don't want to put the dean on the spot. 3 A. Thank you, your Honor. 4 MS. MASSIE: Understood. 5 BY MS. MASSIE: 6 Q. There's been even before this afternoon, there's 7 been a fair amount of discussion of Michigan 8 residency and the law school's commitment to enroll 9 substantial numbers of Michigan residents? 10 A. Yes. 11 Q. And, in fact, the Plaintiff's attorneys have 12 suggested a kind of conflict or comparison between 13 consideration of race and consideration of residency 14 through the use of some of Professor Larntz's grids, 15 were you here in the courtroom for some of that 16 cross-examination? 17 A. I was here for all of the cross-examination of 18 Professor Larntz. 19 Q. Were you here for the cross-examination of Professor 20 Lempert when Mr. Purdy provided Professor Lempert 21 with grids of white Michigan residents, and the 22 grids we have become familiar with, the LSAT on one 23 axis and GPA on the other. And on the other hand 24 out of state, Black, Latino and Native American 25 applicants? GRUTTER -vs- BOLLINGER, ET AL 160 1 A. Yes, I was here for that. 2 Q. Your commitment as a Dean and a commitment of the 3 law school to the people of the state of Michigan, 4 extends to all of the people of the state of 5 Michigan, not just the white people of the state of 6 Michigan, is that true? 7 A. Yes, that's true. 8 Q. And there's a substantial Black minority in the 9 state of Michigan, true? 10 A. Yes, that's true. 11 Q. And Michigan has one of the top ten state 12 populations of Native Americans in the United 13 States, isn't that true? 14 A. I don't know it to not be true, I couldn't have told 15 you that before you asked the question. 16 Q. But in any event, the law school's commitment is to 17 all of the people of the state of Michigan? 18 A. Yes, it is. 19 Q. Now, within the state of Michigan, if you know, 20 there's a very large Black school district in the 21 heart of which we are located right this moment, 22 isn't that right? 23 A. Yes, that is true. 24 Q. And how many of the 12,000 or so young people 25 overwhelming Blacks who graduate from Detroit GRUTTER -vs- BOLLINGER, ET AL 161 1 schools every year, would you say ever make it into 2 any kind of a position where they're even thinking 3 about applying to the U of M Law School? 4 MR. PURDY: Object, foundation, your 5 Honor. 6 THE COURT: If he knows, I don't 7 know. 8 A. I don't know the answer. 9 BY MS. MASSIE: 10 Q. Well, how about this question. How many students 11 from Detroit schools end up actually enrolling at 12 the University of Michigan Law School? 13 A. You're talking about Detroit Public Schools. 14 Q. I am. 15 A. I'm pretty sure we have a few every year. I 16 couldn't tell you how many. 17 THE COURT: You don't read 18 applications anymore, do you? 19 A. No, actually. 20 BY MS. MASSIE: 21 Q. I think it's a very, very, very small proportion of 22 12,000? 23 A. Yes. 24 Q. But those young people are residents and citizens of 25 the state of Michigan? GRUTTER -vs- BOLLINGER, ET AL 162 1 A. The students, the Michigan residents who come, yes. 2 Q. The children in the Detroit school system, the 3 children in the Pontiac school system, the Benton 4 Harbor school system and the Flint school system? 5 A. Yes, they're all residents of Michigan. 6 Q. And their parents are among the residents and 7 citizens whom the school and the university seek to 8 serve? 9 A. Yes. 10 Q. So, even though they're not on the little grid that 11 the Plaintiff was presenting to Professor Lempert 12 the other day, they are, in fact, part of the 13 residency program? 14 A. I don't know what you mean by the residency program, 15 but they would count as Michigan residents for 16 purposes of the University's admissions policy. 17 Q. Whom the school seeks to serve? 18 A. Yes. 19 Q. And do you know what their chances are for a Black 20 child from, let's say, the Southfield School 21 District, a middle class school district and 22 somewhat more integrated one, for being in a 23 position to apply to the University of Michigan Law 24 School? 25 A. I don't know. GRUTTER -vs- BOLLINGER, ET AL 163 1 Q. Do you know how many students enroll at the U of M 2 Law School every year from the Southfield School 3 District, Black students? 4 A. Black students from the Southfield School District, 5 I don't know. 6 Q. Obviously not directly, that would be very 7 precocious? 8 A. Yes. 9 Q. Let me change gears a little bit here and ask you 10 some questions about critical mass if I might? 11 A. Sure. 12 Q. There's no need for a critical mass of Olympic Gold 13 medalists at the law school, right? 14 A. That's correct. 15 Q. And the reason there's a need for a critical mass of 16 Black, Latino and Native Americans students at the 17 law school, is because of the particular social 18 significance of race in this nation, true? 19 A. I would say that the need for a critical mass of the 20 underrepresented minority students that you talked 21 about, derives from the way in which race and 22 ethnicity play out in the classroom. 23 And if that's what you mean by the 24 social significance of race, then the answer to the 25 question would be yes. GRUTTER -vs- BOLLINGER, ET AL 164 1 Q. Here's what I mean. There's a danger of stigma and 2 stereotype and pressures associated with racism 3 attached to token numbers of minority students. 4 Those dangers don't attach incomparable fashion to 5 Olympic Gold Medalists, single mothers, et cetera, 6 is that true? 7 THE COURT: If you know? 8 A. Well, different categories you described might be 9 different, Olympic Gold Medalist. 10 BY MS. MASSIE: 11 Q. Fair enough. Let me just strike the single mothers 12 and stick with the Olympic Gold medalist for the 13 time being. 14 A. Okay. Olympic Gold medalist, if you go back to what 15 Dean Syverud was referring to, I think he described 16 it very well. When he said that part of what you're 17 interested in is preconceptions about prospective. 18 And I think it's hard for me to 19 imagine how people would have too many 20 preconceptions about how an Olympic Gold Medalist 21 might think about a legal issue. 22 There are other reasons for diversity 23 than just breaking down preconceptions. And that's 24 why we mentioned Olympic Gold Medalist as one of the 25 kinds of backgrounds and experiences that might be GRUTTER -vs- BOLLINGER, ET AL 165 1 relevant to exploring, to admitting someone to add 2 diversity to the class. 3 So, I think what you're getting at 4 explains why there is a reference to critical mass 5 with respect to this particular type of diversity 6 that doesn't carry over to the other kinds of 7 diversity that might be relevant. 8 It's because in this particular kind 9 of diversity, racial and ethnic diversity, you are 10 more likely to be dealing with the need to break 11 down conceptions perhaps, but also to create a level 12 of observed comfort where people feel like they can 13 be individuals. 14 Q. And you need numbers to break down those 15 preconceptions, those potential preconceptions and 16 to ensure a comfortable environment, because there 17 could be isolation or even a hostile environment, or 18 certainly stigma or stereotypes attached to race, 19 correct? 20 A. I think what I would say is that without meaningful 21 numbers of minority students, it is much less likely 22 that you will find the kind of participation that we 23 look for in the class which is open. 24 And you identified a number of 25 possible reasons why that might be so. And I can't GRUTTER -vs- BOLLINGER, ET AL 166 1 say definitively which of those reasons precisely 2 accounts for it. 3 All of them strike me as plausible, 4 but I can't say that definitively I know that it is 5 one or the other of the reasons that you mentioned. 6 Q. In your view, do our society's continuing problems 7 with racism have a relationship to the need for a 8 critical mass of minority students? 9 A. In my view, I think that the experience of--I think 10 that the experience of being a member of a 11 historically discriminated against group, and the 12 experience of being discriminated against today, can 13 lead students to be less willing to speak out in a 14 way that is unselfconscious about being taken to be 15 a spokesperson for ones race. It's not always the 16 case. 17 I have known some minority students 18 who are quite courageous and forth right and are 19 willing to speak out about what they believe 20 genuinely, even if they are the only member of that 21 group in the room. My experience has been that that 22 is the exception in the minority group. 23 Q. And you associate that with the phenomenon of 24 racism, or put more generally, with the continuing 25 significance of race in our common life as a nation? GRUTTER -vs- BOLLINGER, ET AL 167 1 A. Yes, I do. 2 Q. I notice that both you and Dean Syverud and other 3 people too, have spoken some about the benefits of a 4 critical mass of minority students when topics not 5 seemingly related to race come up in discussion? 6 A. Yes. 7 Q. Is it also true that critical mass has a set of 8 benefits when topics which are clearly related to 9 race come up in classroom discussion? 10 A. Yes. 11 Q. I'm thinking in particular of classroom discussions 12 that may happen around the issue of racial profiling 13 which is one of the kinds of subjects that's been 14 very much in the news lately, which shows how much 15 race cuts across class, how much it continues to 16 shape American experience and be a very distinct 17 category? 18 A. Yes. 19 Q. And in discussions of racial profiling and other 20 matters that are very specifically race related, and 21 that show the uniqueness of race in our common life, 22 is it important to have a critical mass of minority 23 students participating in those discussions? 24 A. Yes. 25 Q. Finally, Dean, I don't want to beat a dead horse, GRUTTER -vs- BOLLINGER, ET AL 168 1 but I want us to be absolutely clear. 2 You have taught at the law school 3 since 19 what? 4 A. 1987. 5 Q. Have you found that your Native Americans students 6 are the peers and the equals of your White students? 7 A. Yes. 8 Q. Your Latino students, are they the peers and the 9 equals of your White students? 10 A. Yes. 11 Q. And your Black students, are they the peers and the 12 equals of your White students? 13 A. Yes. 14 MS. MASSIE: That's all I have. 15 THE COURT: Plaintiff. 16 CROSS-EXAMINATION 17 BY MR. PURDY: 18 Q. Good afternoon, Dean Lehman? 19 A. Good afternoon. 20 Q. Let me go back to a question that Ms. Massie just 21 asked, because I hope there's no confusion left in 22 the record. 23 You do recall the discussion that we 24 had about the grid with Professor Lempert where I 25 was comparing the treatment of resident majority and GRUTTER -vs- BOLLINGER, ET AL 169 1 non-selective minority residents with out of state 2 underrepresented minorities, correct, do you recall 3 that? 4 A. Resident majority and underrepresented? 5 Q. Yes. In other words, there was no mention, we 6 weren't discussing at all the treatment of what 7 happens to Michigan resident minority students, do 8 you recall that? 9 A. Your tables were about? 10 Q. Sure. 11 A. Why don't you tell me what your tables were about? 12 Q. Well, I thought you said you recalled it so I wanted 13 to make clear. 14 Do you recall we were comparing the 15 treatment of out of state minority applicants with 16 what happened to resident majority and non-selective 17 minority applicants? 18 A. Yes. 19 Q. All right. Dean Lehman, you made reference earlier 20 when you were talking to Mr. Payton about critical 21 mass, and we're going to go back through that a 22 little bit this afternoon, I'm sure that doesn't 23 surprise you. 24 And, Mr. Payton asked you these 25 questions, he says it's not a particular number and GRUTTER -vs- BOLLINGER, ET AL 170 1 you said right. He said it's not a particular 2 percentage and you said that's right. 3 And he said it's not a particular 4 range, and you said that's right, correct? 5 A. Correct. 6 Q. But it's true, is it not, Dean Lehman, not a single 7 year since 1992 when the policy was adopted, has the 8 underrepresented minority enrollment dropped below 9 eleven percent, isn't that correct? 10 A. I can't say it is incorrect. If you tell me it's 11 true, I guess I should believe you. 12 Q. Do you know one way or the other? 13 A. I don't know. 14 Q. I want to go back, if I could. This morning there 15 were a couple of comments about were you surprised 16 when the lawsuit was filed, and I just want to make 17 clear. 18 You understand that the use of 19 affirmative action, or the consideration of race in 20 admissions is an issue where people of good will can 21 be found on both sides, do you not? 22 A. I do. 23 Q. And, in fact, those are words that you've written 24 with specific connection to this lawsuit, correct? 25 A. Yes, they are. GRUTTER -vs- BOLLINGER, ET AL 171 1 Q. And it is your view, in fact, that serious 2 discussion of this litigation and the issues 3 involved will encourage--it's in the best tradition 4 of our profession, the legal profession and your law 5 school, correct? 6 A. I believe that there have been a lot of benefits, I 7 think, in helping to dispel misunderstandings that 8 have come from the discussions surrounding this 9 litigation. 10 Q. And just to be clear. I think there was a 11 great--there's been a great phrase that we've heard 12 about recently in the last couple of days, not every 13 difference of opinion is a difference in principal, 14 do you recall that? 15 A. I don't recall hearing it in court actually. 16 Q. All right. Let me ask you a couple of questions 17 just about your own definition of diversity. 18 You recall I took your deposition 19 about two years ago, I think we're very close to the 20 two year anniversary. I think it was January 1999, 21 you recall that, do you not? 22 A. I recall the deposition, yes. 23 Q. And at that time we went through a lengthy 24 discussion of the faculty of Michigan, do you recall 25 that? GRUTTER -vs- BOLLINGER, ET AL 172 1 A. I actually don't recall it very well, but I assume 2 that's what this is? 3 Q. I don't think we need to go to that, but if we do we 4 will. 5 A. Okay. 6 Q. Well, let me ask you this. Before you came into the 7 courtroom today, did you review your deposition? 8 A. No, I didn't. 9 Q. You didn't, okay, all right. In any event, 10 Dean Lehman back in January of 1999, did you 11 consider your faculty to have a critical mass of 12 underrepresented minority members? 13 A. I'm sorry, did I consider the faculty? 14 Q. Yes. You had a faculty of some 90 plus part-time 15 and full-time and clinical professors. 16 Did you consider that it contained a 17 critical mass of underrepresented minority members? 18 A. Well, the word critical mass does mean something. 19 I'm not quite sure exactly what you mean by critical 20 mass with respect to faculty. We have used the term 21 critical mass in connection with the student body in 22 talking about our policy. 23 Q. You wouldn't apply the term critical mass to your 24 faculty? 25 A. It's not something that I would use in describing GRUTTER -vs- BOLLINGER, ET AL 173 1 it. 2 Q. Do you recall how many minority members there were 3 in your faculty when your deposition was taken, some 4 90 plus faculty members, do you recall? 5 A. I don't remember. 6 Q. If I told you that it was three that you identified, 7 would that be consistent with your recollection? 8 A. It would sound low to me, but it's possible. 9 Q. And do you recall though, Dean Lehman, that every 10 year in the law school bulletins, you describe the 11 faculty as dazzling and diverse? 12 A. Yes. The reason why I describe our faculty as 13 dazzling and diverse, because diversity means more 14 than just racial diversity. 15 Q. Certainly, we agree. We agree. I'm going to jump 16 around a little bit here, I apologize. 17 Just so we're clear, the Court had 18 asked some questions about whether or not if the 19 school had to give up critical mass or intellectual 20 or academic excellence, I believe the question was 21 along those lines, and I want to go back to the 22 policy. 23 Just so it's clear, Dean Lehman, the 24 policy does set forth in two different places, what 25 the minimum academic criteria are for students who GRUTTER -vs- BOLLINGER, ET AL 174 1 that will be considered for admission, does it not? 2 And let me point out to page two, 3 that's the first place it appears. And, in fact, 4 counsel for the University has highlighted it and I 5 will read it. 6 "The minimal criterion is that no 7 applicant should be admitted unless we expect that 8 applicant to do well enough to graduate with no 9 serious academic problems." Correct? 10 A. Yes. 11 Q. And, in fact, on page ten you repeat, "We reiterate, 12 however, that no student should be admitted unless 13 his or her file as a whole leads us to expect him or 14 her to do well enough to graduate without serious 15 academic problems." Correct? 16 A. Yes, you read it correctly. 17 Q. And that's what the policy calls for, correct? 18 A. Yes. 19 Q. And so long as--if during the course of an 20 admissions cycle, Dean Lehman, critical mass 21 appeared not to be taking place. 22 In other words, the school was low 23 and it was concerned that critical mass might not be 24 achieved, so long as you have underrepresented 25 minority applicants who would meet those criterion, GRUTTER -vs- BOLLINGER, ET AL 175 1 they will be considered for those seats in order to 2 create critical mass, correct? 3 A. Well, they're not the only ones who are considered 4 for those seats. 5 Q. Well, let's just stop. They're the only students 6 who can compete in order to create critical mass, 7 because the White student can't create critical 8 mass, correct? 9 A. I don't quite understand what you mean by they're 10 the only students who can compete to create critical 11 mass. 12 Q. For example, a White student cannot help create 13 critical mass of underrepresented minority students, 14 that's correct? 15 A. That's correct. 16 Q. An Asian American student doesn't help create a 17 critical mass of underrepresented minority students, 18 correct? 19 A. Yes, that's correct. 20 Q. All right. And so if critical mass is lacking at 21 any point in the admission cycle, and there are 22 qualified underrepresented minority students still 23 within the applicant pool, only they can be 24 considered for a position in the class to create 25 critical mass, correct? GRUTTER -vs- BOLLINGER, ET AL 176 1 A. Well, I think that's-- 2 THE COURT: (Interposing) Critical 3 mass for underrepresented minority students? 4 MR. PURDY: Yes, sir. 5 A. The reason why I'm sort of resisting you here, is 6 because you're talking about creating a position, 7 about competing for a position to create critical 8 mass. 9 And I think that's not the 10 way--that's not the way the Admissions Office think 11 about files, I guess I would say. 12 Say you're late in the process and 13 you would several files in front of you. If you 14 have a file from a White applicant and you do not 15 believe you have a critical mass of underrepresented 16 minority students at that time, it cannot be a 17 virtue of that applicant's file that they would 18 contribute to the achievement of a critical mass of 19 underrepresented minority students. 20 And it could be a virtue of an 21 underrepresented minority student's file that they 22 will contribute to the achievement of a critical 23 mass of underrepresented minority students. 24 BY MR. PURDY: 25 Q. Dean Lehman, tell me how that's different from what GRUTTER -vs- BOLLINGER, ET AL 177 1 I just said. Isn't it true only the 2 underrepresented minority applicant, the qualified 3 underrepresented minority applicant can compete in 4 order to fill a spot to create critical mass? 5 A. Well, it's different because what you just said 6 doesn't describe the way the process works. It's 7 not as though we are having some and need to create 8 a spot that create critical mass. 9 Q. Critical mass is some number, is it not? It has to 10 be a number? 11 A. No, it doesn't have to be a number. And I think I 12 described in my testimony how I conceive of it as 13 being more than token representation, but it doesn't 14 suddenly just appear and then you have critical mass 15 and there are no benefits. No educational benefits. 16 What we're talking about is in the 17 educational dynamic of the institution, there is a 18 period of growth in diversity and racial diversity 19 for underrepresented minority students. 20 Where additional diversity along that 21 dimension enhances the educational environment quite 22 significantly. That's not a number, that's not a 23 single number. 24 And I can't even tell you exactly 25 where it begins, where this period begins because it GRUTTER -vs- BOLLINGER, ET AL 178 1 depends on the people. Depends on the individuals 2 who are there. 3 Q. Depending on the individuals, Dean Lehman, could 4 five percent underrepresented minority enrollment 5 constitute a critical mass, in your opinion? 6 A. Five percent total underrepresented minority 7 enrollment? 8 Q. Yes, sir, five percent total underrepresented 9 minority enrollment? 10 A. It is conceivable to me, but it is unlikely to me. 11 I think I would have to sort of have to see how it 12 played out in class. 13 Q. It would depend on the individuals as you just said, 14 right? 15 A. Yes. 16 Q. Could three percent? 17 A. As I said, it seems very unlikely. 18 Q. But it would depend on the individuals, would it 19 not? 20 A. Yes, it would depend on the individuals. 21 Q. Dean Lehman, I am just putting--every year you make 22 about a thousand offers of admission, is that right? 23 A. It varies. The last couple of years it's been 1100 24 to 1200 offers. 25 Q. Eleven to 1200. Somewhere within that eleven to GRUTTER -vs- BOLLINGER, ET AL 179 1 1200, you have to make enough offers to create 2 critical mass of underrepresented minority students, 3 do you not? 4 A. No, you don't have to. It depends on the applicant. 5 Q. You told the court if you don't have students that 6 are qualified, students that you don't believe are 7 going to be able to compete the program, clearly you 8 won't admit those students, correct? 9 A. Correct. 10 Q. And you won't do that regardless of the applicant's 11 race? 12 A. Correct. 13 Q. But so long as you have applicants, underrepresented 14 minority applicants who are qualified, then there is 15 a number that constitute critical mass even if you 16 don't know before the class is formed what it is, 17 there is some number above tokenism, is there not? 18 A. I'm sorry if I wasn't making myself clear before. I 19 do not believe that is an accurate statement, no. 20 Q. Okay. Assume with me, if you will, and I will 21 represent to you, but look at the University's 22 material. And there has not been a single year 23 since 1992 where underrepresented minority 24 enrollment has dropped below eleven percent, it's 25 always been above that, so just assume that with me? GRUTTER -vs- BOLLINGER, ET AL 180 1 A. Okay. 2 Q. Okay. And as I understand it, Professor Lempert, I 3 believe it was Professor Lempert, and perhaps even 4 Dean Shields, both confirmed that in their view 5 critical mass was present every year at Michigan's 6 law school classes since 1992, would you agree with 7 that? 8 A. I believe that there has been in each year since 9 I've been dean, we've been focusing on the whole 10 school? 11 Q. Yes, sir. 12 A. I believe that there has been a critical mass of 13 underrepresented minority students, by which I 14 believe there has been more than token 15 representation with regard to minority students. So 16 that we have started to see these benefits accrue in 17 the student body. 18 Q. If you were in the midst of the admissions 19 cycle--strike that. 20 As dean, do you periodically get the 21 daily reports that have been discussed by Dean 22 Shields and Ms. Munzel during the course of the 23 admissions cycle, do you see those? 24 A. I don't get them in the sense, they're not sent to 25 me. But I do meet regularly with Dean Munzel to GRUTTER -vs- BOLLINGER, ET AL 181 1 talk about the office, in general, and the 2 admissions process in particular. And she brings 3 the dailies with her when we meet, and we will look 4 at them. 5 Q. And do you recall discussing how the classs is 6 shaping up during each of the admissions cycle? 7 A. Yes. 8 Q. Did you also do that with Dean Shields when he was 9 there? 10 A. Yes. 11 Q. And the dailies are broken down by race and 12 ethnicity, are they not? 13 A. Yes, they are. And residency and gender as well. 14 Q. Sure. A whole host of different criteria? 15 A. Yes. 16 Q. But you do know how the class is shaping up in terms 17 of the offers made and acceptances received from 18 different racial and ethnic groups, correct? 19 A. Well, it's offers and deposits. 20 Q. Yes, sir. Which you hope to convert into a-- 21 A. (Interposing) Into an enrolled student in the fall, 22 that's the aim. 23 Q. Do you ever recall at any point in any of the 24 admission cycles ever being concerned that critical 25 mass of underrepresented minority students did not GRUTTER -vs- BOLLINGER, ET AL 182 1 appear to be shaping up? 2 A. It's hard to recall specifically all those meetings. 3 But I guess what I would say is there's substantial 4 fluctuation from year to year in the number of 5 applications and offers to different sub-populations 6 depending on the files. 7 And so I know I have asked, gee, in 8 some years our applications from African Americans 9 seem to be way down this year. 10 Q. So you have expressed that? 11 A. Why is that? I have asked the question do we know, 12 and the answer I think was we don't know. 13 Q. So, do you ever recall a discussion with either of 14 your deans of Admission or directors of Admission 15 where you expressed concern that a critical mass, as 16 it's defined in the policy, might not be present 17 when the class ultimately enrolled. And I'm taking 18 about a critical mass of underrepresented minority 19 students? 20 A. I don't recall ever having said that. 21 Q. Well, I want you to assume that at some point you 22 were concerned, in other words, in looking at the 23 applications in an admissions cycle, you became 24 concerned? 25 A. Right. GRUTTER -vs- BOLLINGER, ET AL 183 1 Q. Now, I am just going to--here is a pool, we'll just 2 put underrepresented minority students. It would 3 include African Americans, Native Americans and 4 Hispanics. 5 And here is an additional pool, 6 obviously this is one big pool. And these would be 7 your White students, White applicants, I should say, 8 Asian Americans and others. 9 And isn't it true, Dean Lehman, that 10 so long as there--if you're short on critical mass, 11 if you are concerned that critical mass is not going 12 to be achieved, but you have within the applicant 13 pool qualified underrepresented minority applicants, 14 they are the only applicants that can compete to 15 fill out that portion of your class? 16 A. I'm going to take exception again to this language 17 of competing to fill out that portion of the class. 18 We do not have a portion of the class that is set 19 aside for critical mass of underrepresented minority 20 students. 21 What we have is a value, a value in a 22 composition of the student body that is important to 23 us pedagogically which has to do with the 24 achievement of the education, the pedagogic benefits 25 that come from having a critical mass of GRUTTER -vs- BOLLINGER, ET AL 184 1 underrepresented minority students in the class. 2 That's a value and it's an important value. It's 3 not the only value. It's not the only value in 4 evaluating files. 5 Because in the end you're still 6 looking at individual people's files. And in the 7 end, the Admissions Office is reading files side by 8 side. And you have to know what's in the file to be 9 able to say who will win out in competition for a 10 seat. There is real competition for a seat. That 11 exist. 12 Q. But-- 13 A. (Interposing) But you can't tell in advance, you 14 can't tell in advance who is going to prevail, even 15 though some people might contribute to the 16 achievement of a critical mass of underrepresented 17 majority students and other people might not. 18 Q. Dean Lehman, it's true is it not that every year 19 Michigan admits minority students who would not be 20 admitted were it not for their race or ethnicity, 21 correct? 22 A. Every year we do admit students where one of the 23 values that we consider significant is their 24 contribution to the racial and ethnic diversity of 25 the class. GRUTTER -vs- BOLLINGER, ET AL 185 1 And when you look at the experience 2 of Boalt Hall, you see that if we did not consider 3 that, if we adopted a color blind policy, the total 4 number of enrolled members of those minority groups 5 would be much lower. 6 Q. I was going to wait to get to Boalt Hall, but let me 7 just very quickly and maybe I won't have to come 8 back to it. 9 Certainly you believe that Asian 10 Americans students contribute a great amount of 11 diversity to a law school class, do you not? 12 A. Yes, I do. 13 Q. And do you know what percentage of Boalt's current 14 class is made up of minority students as compared to 15 Michigan's? 16 A. Underrepresented minority students? 17 Q. All minority students, all people that would be 18 categorized as minority students. Who has the 19 greater percentage of minority students? 20 A. What kinds of minorities are you talking about? 21 Q. Minority students. Asian Americans, African 22 Americans, Hispanics, Native Americans, Latinos? 23 A. Ethnic minorities, religious minorities? 24 Q. I'm not talking about religious minorities, we're 25 talking about racial and ethnic minorities. GRUTTER -vs- BOLLINGER, ET AL 186 1 A. Racial? 2 Q. Dean Lehman, which school today has the greater 3 percentage of minority students Boalt Hall or 4 Michigan? 5 A. I do not know. 6 Q. Okay. Well, if you don't know, why do you believe 7 that there's a devastating impact on the overall 8 enrollment post Prop 209? 9 A. I was speaking about the impact on the enrollment of 10 underrepresented minority students. 11 Q. Do you have a feel, would ten percent of 12 underrepresented minority students, ten percent, 13 would that constitute critical mass in your view? 14 A. I'm sorry. 15 Q. Would ten percent of underrepresented minority 16 students constitute critical mass of those students, 17 in your opinion? 18 THE COURT: At the University of 19 Michigan, or anyone where? 20 MR. PURDY: Anywhere. 21 A. Ten percent of the class consisted of 22 underrepresented minority students, again it depends 23 upon the individual members. 24 But my senses that you would, in some 25 classes at least, begin to see some of the benefits. GRUTTER -vs- BOLLINGER, ET AL 187 1 But you would certainly not be at, sort of what I 2 described as the area where you start to see 3 significantly diminishing marginal returns to 4 additional diversity. 5 Q. Sure. Now, we're talking the other end of the 6 range. I'm talking at the lower end of the range. 7 In other words, I want to know whether or not in 8 your view, let me just finish, ten percent of 9 underrepresented minority students in a selective 10 law school would constitute a critical mass? 11 A. I mean I think this may get to where I wasn't making 12 myself understood to you before. This notion of a 13 critical mass is like the notion of meaningful 14 numbers. Is describing this kind of S shaped sort 15 of curve. 16 Where you begin to get benefits 17 beyond tokenism, beyond token representation and 18 they continue for a period before you get to 19 significantly diminishing marginal returns. 20 So, to ask me is ten percent critical 21 mass when I'm thinking of critical mass in terms of 22 this range, are you asking--I can make sense of it, 23 I guess, if I understand the question to be, do in 24 my experience do I think it's likely that at ten 25 percent representation of underrepresented GRUTTER -vs- BOLLINGER, ET AL 188 1 minorities, you're starting to get beyond tokenism, 2 you're starting to get some of these benefits. 3 If I understand your question to be 4 in that spirit, then I think in my experience, yes, 5 you're starting to get those kinds of benefits. 6 Q. Would you be surprise if you were to learn that 7 today for the fall of 2000, the entering class at 8 Boalt Hall was nearly ten percent underrepresented 9 minorities? 10 A. The entering class for the fall of 2000 at Boalt 11 Hall? 12 Q. Yes, sir. 13 A. Was, I'm sorry, what's the percentage? 14 Q. Nine point seven percent exactly? 15 A. Yes. 16 Q. Would that surprise you? 17 A. No. 18 Q. And that 18.9 percent were Asian students, would 19 that surprise you? 20 A. No. 21 Q. You consider UCLA to be an outstanding law school? 22 A. I consider UCLA to be an outstanding law school, 23 yes, I do. 24 Q. Do you know what the underrepresented minority 25 enrollment in the class of 2000 at UCLA is? GRUTTER -vs- BOLLINGER, ET AL 189 1 A. Actually I should clarify my answer to the last 2 question. 3 Q. Sure. 4 A. I used to think of UCLA as an outstanding law 5 school. 6 Q. And why do you not think it's an outstanding law 7 school today? 8 A. Because they are suffering right now from a lack of 9 diversity in their student body. 10 Q. What percentage of the enrolling class for the year 11 that just began, the fall of 2000 at UCLA, is made 12 up of underrepresented minorities, if you know? 13 A. I do not know. 14 Q. Would it surprise you that it's twelve percent? 15 A. I don't know. 16 Q. What is Michigan's current underrepresented minority 17 enrollment? 18 A. I do not know. 19 Q. I believe Professor Raudenbush had something like 20 14.5 percent? 21 A. I don't know. 22 THE COURT: How many students in LA, 23 do you know? 24 MR. PURDY: The class is about 305, I 25 believe. GRUTTER -vs- BOLLINGER, ET AL 190 1 THE COURT: Okay. 2 BY MR. PURDY: 3 Q. And your class is about 350 give or take, is that 4 correct? 5 A. Yes. 6 Q. And when you look at the total overall minority 7 enrollment, the total overall diversity of the law 8 school at UCLA, does it have more or less racial and 9 ethnic diversity than does Michigan? 10 A. I do know from conversations with Jonathan Barrat 11 (ph) the dean at UCLA, that they are concerned about 12 the absence of more than a token number of African 13 Americans students in the entering class. And the 14 impact that that is having on the educational 15 experience at the UCLA Law School. 16 So, the particular concern, that the 17 pedagogic concern there, has to do with African 18 American students at UCLA. 19 Q. Would that be the same concern that Dean Syverud 20 might have at Vanderbilt because he has not a single 21 Hispanic student in last year's entering class? 22 A. Yes. 23 Q. If I can ask you to turn to your deposition page 24 112, Dean Lehman. 25 Yes. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 191 1 Q I'm going to direct you to line 17. And we were having a 2 discussion about the role that race played, and you made a 3 comment, you made a statement in the record, beginning on line 4 17, and I just want to read it, I want you to tell me if it's 5 correct. 6 "What I'm saying is that are applicants who we 7 admit, who would not be admitted if we if we were 8 prohibited from taking their race and the 9 university's interest in racial diversity among 10 the student body into account." 11 Did I read that correctly? 12 A Give me a second to see it in context here. 13 Q Surely. 14 A Yes. 15 Q In fact, early in your deposition you clearly stated that 16 race does make a difference in the applications decisions that 17 you make. And I'll just direct you to page 111, it's right 18 above that. 19 A Yes. 20 Q All right. Thus, it's clear, is it not, Dean Lehman that 21 there are minority students for whom race was determinative in 22 whether or not they were given an offer of admission; correct? 23 A Yes. 24 Q So the same student who was admitted because race made a 25 difference, had that student been white or Asian American, they BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 192 1 would not have been admitted; correct? 2 A Yes. 3 Q And there are people within this group of under -- 4 A If I could -- 5 Q Let me finish my question and if you need to come back 6 I'll let you do. But there are people, minority applicants, 7 who are admitted even though they have qualifications lower 8 than applicants who are non-minorities; correct? 9 A What I've been trying to say is that when we are 10 evaluating a file and trying to decide what a person 11 contributes to the file, and trying to get a sense of the whole 12 person, there are candidates for whom their contributions to 13 the racial diversity of the class is outcome determinative. 14 You asked before would they have been admitted if they had been 15 white, and the reason why I wanted to go back and sort of 16 clarify that, my answer to that question is that requires one 17 to -- you just can't flip a person's race. You know, to say -- 18 race is more than skin color. Race is lived experience. So 19 when you say, you know, take a person and sort of assume this 20 person has been white, you are often changing a whole set of 21 experiences that they've had in their life. You're making them 22 a different person. And so when you asked the question would 23 they have been admitted if they had been white is almost asking 24 would they have been if they were a different person. What I'm 25 trying to say to sort of express it more positively in a way BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 193 1 that I'm more confident about, is saying given who they are, 2 and I can't change what their race is, how did it effect our 3 analysis of their application. There are candidates for whom 4 their race and their contribution to racial diversity as it's 5 reflected in the applicant file makes a difference, made a 6 difference in whether they would have been admitted. 7 Q Let me -- and that's -- these students, right here, who 8 are completing to create the critical mass that you're seeking 9 -- 10 MR. PAYTON: Hold on, this is Mr. Purdy's I think he 11 admitted hypothetical that doesn't relate to anything -- 12 THE COURT: It's also Cross-Examination. 13 MR. PAYTON: It is, but he was asking as though this 14 relates to something in the real world. 15 THE COURT: You should have prefaced it by "Is 16 this," referring to his chart. 17 A As I said before I don't approve of that chart. 18 BY MR. PURDY: 19 Q But you just said that there are students for whom their 20 race is determinative in their receiving an offer of admission; 21 correct? We've been through that. There's no question about 22 that. 23 A Yes. 24 Q Isn't these students the ones who are competing to 25 complete critical mass in the class that are -- BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 194 1 A Mr. Purdy, I said when you put that up here initially 2 that we do not have seats for critical mass in a class for 3 which people -- seats for critical mass that people compete 4 for. That's not an accurate representation of the process. So 5 the answer is no. 6 Q Dean Lehman, the term "qualifications" appears in the 7 policy does it not? We see it sprinkled through the policy and 8 there's specific reference when it talks about residents; do 9 you recall that? 10 A Can you tell me where you're talking about? 11 Q Sure. Right here back. On Page 2, I'm sorry. Let me 12 read it. 13 It's talking about the constraint that Michigan 14 feels as part of a publicly funded university. 15 "As such we feel that a reasonable proportion of 16 our places should go to Michigan residents, even 17 if some have qualifications lower than those of 18 some applicants from outside Michigan." 19 So there's the term "qualifications. 20 A Yes. 21 Q Isn't it true that there are minority applicants who are 22 admitted even though they have qualifications as used in this 23 policy that are lower than non-minorities? 24 A Well, as I understand the word "qualifications" there 25 that has to do with the whole package of information that's in BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 195 1 a file. It includes everything about the person we can glean, 2 that we think has significance for their likely contributions 3 to the educational environment of the law school while they're 4 present for their careers afterwards. 5 So their contribution to the diversity of the 6 environment is part of that word, "qualifications" as I 7 understand in that sentence. 8 So what we're saying is our commitment to ensuring 9 that a responsible proportion of our places go to Michigan 10 residents trumps all of that. 11 Q Could I ask you to go to page 115 of your deposition, 12 please sir? 13 A Yes. 14 Q I'm going to start on line 13, and I'll ask you if you 15 would like to follow along with me, because there's a series of 16 questions and answers that I'd like to read. We had just -- 17 and if you want to look back I'll give you a moment, we just 18 had some trouble coming to an agreement on the term 19 "qualifications" but my questions begin line 13. 20 "Q Let's go to Page 2 of Exhibit 4." 21 That's what we have up here. 22 The bottom paragraph says. 23 "Q The question we confront, do you see that?" 24 "A Yes. 25 "Q If you go on down" -- this is talking about BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 196 1 the requirement for state residents. 2 "There's a sentence in this policy, it says 3 `As such we feel that a reasonable proportion of 4 our places should go to Michigan residents even if 5 some have qualifications lower than those of some; 6 applicants from outside Michigan, do you see that? 7 "A Yes. 8 "Q Okay. That's the term I'm using 9 qualifications with that saying, whatever you mean 10 in this policy is exactly what I mean in my 11 question. So is it true that there are people of a 12 minority race who are admitted even they have 13 qualifications lower than applicants who are 14 non-minorities? 15 "A So you're using the word qualifications 16 as it's used in this policy? 17 "Q I'm using it just as it's used in that 18 sentence that I just read to you. 19 "A Yes. 20 "Q Your answer is yes? 21 "A The answer is yes." 22 Did I read that correctly? 23 A Yes, you did. 24 Q Dean Lehman, I want you to assume that there's no 25 identification on the application form of Michigan for race or BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 197 1 ethnicity. Just assume that if you will. 2 A No, that's not true. 3 Q I understand that's not true. I want you to assume that 4 hypothetically we can just eliminate that for race. It's true, 5 is it not, that every year, every year, there would be 6 African-American applicants to whom you would offer admission. 7 A Yes, that's true. 8 Q That same would be true for Mexican-American applicants; 9 would if not? 10 A I believe so. 11 Q How about Native American applicants? 12 A I don't know the answer to that question. We have very 13 small numbers of Native American applicants each year. 14 Q But certainly every year if you didn't know another thing 15 about a person's race, there would be African-Americans 16 admitted to the University of Michigan Law School, and Hispanic 17 Americans admitted to the University of Michigan Law School; 18 correct? 19 A I believe that's right. 20 Q And just so it's clear -- strike that. 21 I want to talk to you about critical mass. I think 22 the simplest way to do it, is to go your deposition on page 23 144, if you would please. 24 A Yes. 25 Q And there I think I asked you the same question that Mr. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 198 1 Payton asked you earlier. I said "have you heard the term 2 critical mass?" 3 MR. PAYTON: Where are you? 4 MR. PURDY: I'm sorry, counsel, 144. 5 MR. PAYTON: What line? 6 MR. PURDY: Twenty. 7 BY MR. PURDY: 8 Q "Q Have you heard the term critical mass? 9 "A Are you referring to the term in the policy?" 10 And then we go on to have a discussion where you 11 then proceeded to read from the policy. You read page 12. Do 12 you see that over on page 145? 13 A Yes, yes. 14 Q And then beginning on line 20, you said the following 15 after quoting from the policy. 16 "As I understand the use of the term, critical mass 17 in that sense, what we're talking about is a 18 number of students that is sufficient to enable 19 the institution and the students to experience the 20 benefits, the academic benefits that come from 21 having a racially diversed student body. That 22 means a sufficient number that members of the 23 minority group feel comfortable within the 24 institution, and able to participate in the 25 academic, intellectual and professional life of BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 199 1 the institution. And, also theses are all 2 different concepts that all sort of go together 3 into forming what might -- what a critical mass 4 might mean. But also a sufficient number that 5 other students in a student body would be likely 6 to have the experience of interacting with 7 students of other races, that they wouldn't have -- 8 that other students wouldn't be restricted to 9 the experienced of a racially homogenous 10 education, so that they would be able to hear 11 minority students speaking on legal issues and. 12 expressing differences of opinions, things like 13 that. 14 "Q Okay. Now you've used the term a sufficient 15 number several times in that answer. 16 "A Right. 17 "Q What is a sufficient number of minority 18 students to form a critical mass? 19 "A Well, as I was saying there's -- we're 20 talking about a variety of different ideas here. 21 "Q Well, I want -- you've used the phrase a 22 sufficient number of minority students. 23 "A Yes. 24 "Q What in your, as one of the framers of this 25 document, what do you mean by sufficient number? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 200 1 "A Well, I use it in several context. So it's a 2 sufficient number to achieve a variety of 3 different kinds of benefits and the numbers don't 4 have to be the same. 5 "Q Well, so the critical mass can vary? It can 6 be different for different things? 7 "A Yes." 8 Did I read that correctly so far. 9 A Yes. 10 Q And, Dean Lehman, you go on to discuss the fact that one 11 of the goals is to have students who feel comfortable within 12 the law school environment, correct, the minority students; do 13 you recall that? 14 A I'm sorry? 15 Q Do you recall discussing that one of the goals that you 16 -- you and I had discussed, two years ago -- here, let's do it 17 this way. We'll keep reading because that's maybe the simplest 18 to do it. 19 A That would be helpful to me. 20 Q You bet. So, we'll go back. 21 "Q But also critical mass can vary. It can be 22 different for different things? 23 "A Yes. 24 "Q Is there a number of minority students below 25 which you would believed you had not achieved a BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 201 1 critical mass necessary to achieve any of the 2 goals that you've just described? 3 "A Yeah -- I mean, I've seen classes where the 4 number of minority students was too low to achieve 5 those benefits. 6 "A Absolutely. 7 "Q And my question is what would be a number 8 that's too low to achieve those benefits? 9 "A Well, it's going to vary. Are you asking -- 10 are you trying to ask me if there's a specific 11 fixed number out there and below it's okay and 12 above is, is that what you're asking? 13 "Q Well, I assume that if you're saying that 14 you. want to enroll a critical mass of minority 15 students you have to some number below which you 16 would feel you have failed in that effort, is that 17 a fair statement? 18 "A Yes. 19 "Q Okay. What is that number? 20 "A It depends on the context. 21 "Q Give me the lowest number in any context 22 below which if you didn't have that number of 23 minority students you believe you would have 24 failed to reach a critical mass necessary to 25 accomplish the goal. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 202 1 "A Ask that question again, I'm not sure what 2 you're meaning. 3 "Q Okay. You gave me -- you said a number 4 sufficient to enable the institution to experience 5 the academic benefits of these students. I wrote 6 that down. 7 "A Yes. 8 "Q What number of students, what number of 9 minority students would be sufficient for you to 10 have achieved critical mass to accomplish that 11 goal? 12 "A You don't know until you see the class. I 13 mean, you know when you don't have it. 14 "Q Are you telling me that there's no number? 15 I. mean it could be as little as one percent of 16 the class might be sufficient to achieve that 17 goal? 18 "A You're asking me a hypothetical question. 19 here that I'm having trouble with understanding 20 What you're saying. 21 "Q Well, let me go to another example. You 22 said you needed a sufficient number of members 23 to make the members of the minority group feel 24 comfortable in the institution. That's a goal. 25 "A Right. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 203 1 "Q What percent, what would be a sufficient 2 number to achieve that goal? Certainly zero would 3 be unacceptable to you; correct? 4 "A Yes. 5 "Q. What number of above would still be 6 unacceptable? 7 "A It depends. It depends on the context. It 8 depends on the society. It depends on how, on the 9 individuals involved. 10 "Q How does it depend on the individuals 11 involved? 12 "A If you're asking about what makes people 13 feel comfortable, it's going to depend on the 14 individuals involved. I think that's pretty -- 15 "Q So, in other words, one year you might have 16 three percent minority who all express extreme 17 comfort. The next year you might have ten percent 18 minority and none of them are comfortable because 19 they believe there aren't minorities. And in your 20 view that would mean you hadn't reached critical 21 mass in the second circumstance? 22 "A That question was a little bit too long. 23 "Q Sure. Are you saying that you could have 24 class with three percent minorities, just a 25 hypothetical three percent minorities, but they're BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 204 1 all perfectly comfortable in the institution. If 2 they express that to you, we're comfortable you 3 say that then we've achieved a critical mass based 4 on these individuals in terms of making them feel 5 comfortable at the university. 6 "A I mean, I think -- let me go back to what I 7 said earlier which is that there are -- 8 "Q Dean Lehman, let me ask you: Can you answer 9 the question? I'm giving you a hypothetical. You 10 gave a whole broad range of things and I tried to 11 pick certain ones and you've told me it's varied. 12 I'll accept that. 13 "A Right. 14 "Q But I'm just talking about the specific one. 15 I wrote your quote down. You want a sufficient 16 critical mass means a sufficient number of members 17 of the minority group so that the group, that 18 group feels comfortable in the institution. And 19 my question to you is on that issue, if you have 20 three percent minority and they came in and they 21 said we're perfectly comfortable here, in your 22 view have you reached critical mass necessary 23 to achieve that goal? 24 "A Well, if I may -- 25 "Q Well, can you answer that question? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 205 1 "A I will try to answer that question, okay. I 2 think the question suggests you misunderstood a 3 prior answer of mine and I apologize. 4 "Q I apologize if I did, but please answer that 5 question. 6 "A In terms -- in using the term `critical 7 mass' my understanding is that we are trying to 8 pursue multiple objectives at the same time, And a 9 number of students that is sufficient to achieve 10 any one of those objectives at a given time may 11 vary from the number of students that is 12 sufficient to achieve another one of those 13 objectives at that time. And in your hypothetical 14 you're asking me is -- if I assume that the number 15 is sufficient to achieve one of those objectives 16 is sufficient, I'll say, yes, it's sufficient. 17 Is that enough to answer your question? 18 "Q That's fine. Can you go that same 19 hypothetical but now you have ten percent, you've 20 more than triple the percentage of minorities but 21 Is this due to these individuals which you said is a 22 factor. 23 A Right. 24 "Q They express extreme discomfort because they 25 believe they are -- there aren't enough members in BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 206 1 their group in the institution, would you believe 2 then you have failed to achieve the critical mass 3 necessary to achieve the objective of making them 4 feel comfortable? 5 "A I think the answer there is yes." 6 Did I read all that correctly? 7 A I believe you did. I zoned out actually part way through 8 it. I'm sorry. I read it all myself as you were reading it. 9 Q Incidentally, I did have one more question. If next 10 year,for example, Dean Lehman, the entire class all of the best 11 students, all of the best applicants were a hundred percent 12 under-represented minorities, you'd have no problem admitting 13 all of them, having a class made up of completely 14 under-represented minorities; would you? 15 A I don't think you asked that. 16 Q No, I'm asking you that question now. 17 A Well, what you're describing now is class -- this would 18 be quite hypothetical, I guess, which would be lacking a 19 critical mass of Caucasian students. So that would be a 20 concern. If would be it -- it would raise in an interesting 21 way I guess, the flip side of the problem with your chart 22 before. The question then is how do you weigh the pedagogic 23 benefits of having a critical mass of Caucasian students in the 24 class against the other benefits that go with when you say all 25 of the -- so many extremely -- under-represented minority BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 207 1 students that all of the -- you would fill up an entire class 2 with under-represented minority students without any attention 3 to race. 4 At that point we would consider the pedagogic 5 benefits of having a critical mass of Caucasian students. 6 Q Are you saying then, and if you are, just tell me and 7 we'll move on. If next year's class -- next year's applicant 8 pool was made up of this extraordinary group of students based 9 on all the qualifications as you define them in the policy and 10 as it turned out all of the students, all of the most 11 attractive students, the thousands of students that you just -- 12 you couldn't get, you couldn't do without, were all members of 13 under-represented minority groups, would you have any 14 difficulty offering those admissions to each and every one of 15 them? 16 A The answer is yes, we would have difficulty for the 17 reason that I said. 18 Q Pardon me? 19 A For the reason that I said. 20 MR. PURDY: Your Honor, could we take just about a 21 five-minute break. I've got a bit more, but I just want -- 22 THE COURT: Sure. We'll take a real five minutes. 23 MR. PURDY: That will be great. 24 (Court in recess, 4:15 p.m.) 25 (Court reconvened, 4:25 p.m.) BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 208 1 BY MR. PURDY: 2 Q Dean Lehman, I ask you to look at Exhibit 15. 3 A Yes. 4 Q Do you recognize this as a grid? 5 THE COURT: I'm sorry, what exhibit number? 6 MR. PURDY: Exhibit 15, Your Honor. 7 BY MR. PURDY: 8 Q Do you recognize this as one of the grids that was 9 produced by the university's law school? 10 A Yes, I do. 11 Q And as it notes in the upper right-hand corner this is 12 the -- the run appears to be in December of 1995, so this would 13 indicate the final offers and admissions and actual yield from 14 the class entering in the fall of 1995; correct? 15 A Yes. 16 Q That would have been a class over which -- strike that. 17 You would have been serving as the Dean at that 18 time; correct? 19 A Right. The class that enrolled in the Fall of '95 would 20 have been admitted in '94-95, which was my first year as Dean. 21 Q And Dennis Shields whom you heard testify earlier last 22 week he's the individual who is responsible for selecting this 23 class -- 24 A Yes, that's correct. 25 Q And I'm going to do a little different set of numbers BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 209 1 with you, and I would like to compare. Again, we'll go first 2 to the page three which is the page for African-American 3 applicants? 4 A Yes. 5 Q And then if you could flip back until you find I believe 6 it's page seven for the Asian Pacific Island American 7 applicants. 8 A Yes. 9 Q Do you have that? All right. And if we look -- I'm 10 going to use the same 159 and 160, let's just pick that LSAT 11 range, and then we will -- 12 A LSAT. 13 Q Yes, LSAT. I apologize. The LSAT range on the 14 African-American column, and we see that we have at the top 15 grade pint two out of three applicants -- two applicants, two 16 admittees; correct? African-Americans, 159 through 160, 3.75, 17 and above. I'm going to go down vertically that column so the 18 first column you see two applicants, two admittees; correct? 19 A Yes. 20 Q If you flip to the Asian American applicants there were 21 eight applicants and no offers of admission; correct? 22 A Yes. 23 Q Dropping down one grade point level, three 24 African-American applicants, three admits; do you side that? 25 A Yes. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 210 1 Q And if you go to the Asian Americans, twenty applicants 2 one admit; do you see that? 3 A Yes. 4 Q Dropping another grade point level, three 5 African-Americans, three admits. And going to the Asian 6 American column, twenty-two applicants and zero admits; do you 7 so that? 8 A Yes. 9 Q And then if you drop down again, we're now at 3.0 to 10 3.24. Five African-American applicants, five admits. And four 11 Asian applicants, zero admits; right? 12 A Yes. 13 Q Move to the right, move just directly to the right, over 14 -- we're going to move up to the LSAT range where 3.0 and 3.24, 15 and one sixty-one to one sixty-three, there are seven 16 African-American applicants and seven admits do you see that? 17 A Yes. 18 Q Okay. And Asian American applicants there are nine 19 applicants and zero admits; correct? 20 A Yes. 21 Q Dropping down on the African American grid to the 2.75 to 22 2.99, four applicants, four admits; do you see that? 23 A Yes. 24 Q If you go to the Asian Americans, ten applicants, and no 25 admits; do you see that? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 211 1 A Yes. 2 Q Obviously, Dean Lehman, these grids reflect the 3 admissions decisions that were made that year for each of the 4 groups; do they not? 5 A Yes. 6 Q And would it be fair to say that these results represent 7 examples of the extent to which being an under-represented 8 minority is taken into account in the admissions process? 9 A I think it depends on what you mean by the extent to 10 which race is -- can you say that question again? What I want 11 to get clarification from you on is what you mean by the words, 12 "extent to which." 13 Q Do these grids show us the extent to which being a member 14 of an under-represented minority is taken in account in the 15 admissions process? 16 A They are partly indicative of the extent to which race is 17 taken account in the admissions process. 18 Q I'd like you to finally turn to Exhibit 78 if you would 19 please? 20 A I don't think I have that. 21 Q We'll get it for you, I'm sorry. Take your time Dean 22 Lehman. Do you have the exhibit in front of you? 23 A Seventy-eight, yes. 24 A I'll represent to you, Dean Lehman, this is a portion of 25 a -- what is known as the University of Michigan Law School BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 212 1 Faculty Handbook that was produced by the University the in 2 course of this case. It's been marked as Exhibit 78. 3 A Yes. 4 Q Did you recognize at least the cover of this document? 5 A Yes. 6 A And if you'll turn to the third page you see a date of 7 August, 1991? 8 A Yes. 9 Q And this was about the same time was it not, that then 10 Dean Bollinger appointed the Faculty Committee to begin looking 11 at the new admissions policy roughly at the same time; would 12 you agree? 13 A Probably the month before. 14 Q I'm going to ask you to turn page 16 of this document. 15 It's under discrimination and harassment policies. When you 16 get there, just let me know. 17 A Got it. 18 Q The -- under the first -- 19 MR. PURDY: First, we'll offer this exhibit, Your 20 Honor. 21 THE COURT: Seventy-eight? 22 MR. PURDY: Yes, sir. 23 THE COURT: Any objection? Received. 24 (Trial Exhibit No. 78 received into evidence.) 25 BY MR.PURDY: BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 213 1 Q The first paragraph says, 2 "The University of Michigan has adopted various 3 guidelines and regulations to prevent 4 discrimination or harassment based upon, for 5 example, race, gender, or sexual orientation. 6 Those policies and related information follow." 7 I want to read through this document with you. The 8 next paragraph says, 9 "The Board of Regents of the University of Michigan 10 has adopted the following statement: EQUAL 11 OPPORTUNITY/AFFIRMATIVE ACTION. The University of 12 Michigan as an equal opportunity and affirmative 13 action employer complies with applicable federal 14 and state laws prohibiting discrimination 15 including Title 9 of the Education Amendments 16 of 1972, and Section 504 of the Rehabilitation Act 17 of 1973." 18 And then the next sentence, Dean Leham, I'd like you 19 to pay particular attention to -- it says, quote, 20 "It is the policy of the University of Michigan 21 that no person on the basis of race, sex 22 color, religion, national origin or ancestry, age, 23 marital status, handicapped or Vietnam era 24 veteran status, shall be discriminated against 25 in an employment, educational programs and BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 214 1 activities or admissions." 2 Did I read that correctly? 3 A Yes. 4 Q And then drop to the next paragraph in bold and it says, 5 "The President of the University of Michigan has 6 promulgated the following policy which was 7 subsequently endorsed by the Board of Regents in 8 February, 1988. 9 "The University of Michigan believes that 10 educational and employment decisions should based 11 on individuals' abilities and qualifications and 12 should not be based on irrelevant factors or 13 personal or personal characteristics which have no 14 connection academic abilities or job performance. 15 Among the traditional factors which are generally 16 `irrelevant' are race, sex, religion, and national 17 origin." 18 Did I read that correctly? 19 A Yes, you did. 20 Q At the bottom, Dean Lehman, it notes in bold, 21 "The law school, of course, embraces both policies 22 and makes the following statement in its 23 materials." 24 It then repeats the policy of non-discrimination; 25 does it not? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 215 1 A Yes. 2 Q Dean Lehman, does the law school still embrace both of 3 these policies today? 4 A I don't actually know the text of the Regents -- I mean, 5 I don't know if these have been -- this is 1991. I don't know 6 if the text has changed since 1991. 7 MR. PURDY: That's all I have, your Honor. 8 THE COURT: Mr. Payton, anything? 9 MR. PAYTON: Yes. 10 REDIRECT EXAMINATION 11 BY MR. PAYTON: 12 Q Dean Lehman, Mr. Purdy asked you a series of questions 13 about the grids, Exhibit 15? 14 A Yes. 15 Q And he went down a number of cells and he compared what 16 the grids showed as the results of decisions regarding 17 African-American students, and then he compared it in cells to 18 Asian and Pacific Islanders; do you recall that? 19 A Yes, I do. 20 Q Now, these grid do not reflect a decision-making process; 21 do they, they're just the results after the fact. 22 A Yes. 23 Q Can you tell what those students, any of them looked like 24 if you looked at their files? 25 A Can I tell from the grids what these students look like BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 216 1 as people? 2 Q Yes. 3 A No. 4 Q Now,let's just take what is on the grids: grades and 5 LSAT? 6 A Can I get the grid? 7 Q You can, but I'm going no further than grades and LSAT. 8 A Yes. 9 Q And the cells and the cells he went through were to look 10 at the cells in which the students were exactly the same? 11 A Yes. 12 Q Okay. And in the cells -- 13 A The same on those dimensions. 14 Q On just those two things. And in the cells where the 15 students were exactly the same he saw that there was some 16 differences in the outcomes in those particular cells he looked 17 at, okay. And the question is: From looking only at those 18 cells, using just grades and LSAT where they were exactly the 19 same, can you tell what the extent of the use of race was 20 simply because the outcomes appear to be different? 21 A No. 22 Q Why not? 23 A For race to be a factor in admissions -- he asked the 24 question can you tell and I said it's hard to tell. For race to 25 be a factor there has to be some cases where race makes a BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 217 1 difference. How much of a difference race makes in any 2 different case, in any single case, is not something that you 3 can tell from the number of cases that are just like that. 4 It's not the number of cases in a cell that tells you the 5 extent to which race is making a difference. And that's 6 assuming that the cell gets everything, which of course, as I 7 said in my original testimony it doesn't. There's a lot of 8 information and I expressed my concerns about GPA even to 9 define the cell. To get information about the extent to which 10 race makes a difference it's helpful to know that there are 11 cases which are similarly situated where you decide in opposite 12 directions because you place a value on the university. 13 There's other information in that grid though about 14 race that's significant and that's the total pool size. You 15 could see just from the grid the total number of applicants 16 and so the likelihood of having a critical mass of Asian 17 Americans as opposed of African-Americans in that class. 18 Q Let's just take his assumption no matter how improbable 19 it may be that the only information we have is those two pieces 20 of information, grades and test scores, and we have identical 21 students. We have an African-American and we have a Asian 22 Pacific Islander. We then look at the decisions and we're 23 trying to figure out if race made a difference and we say it 24 seems to have made a difference, can we tell how much race was 25 valued that it tipped that scale? BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 218 1 A No, you can't tell it by the existence of the cell, and 2 you can't tell it by the number of people who are just like 3 that. Having more people in that circumstance doesn't answer 4 the question either, no. 5 MR. PAYTON: Nothing further. 6 MS. MASSIE: I have a few. 7 RECROSS-EXAMINATION 8 BY MS. MASSIE: 9 Q I'm going to direct your attention to some of the 10 questions Mr. Purdy was asking you about the law schools in 11 California post SP1, and then Proposition 209. I'm going to be 12 very brief was we're going to have a witness tomorrow who's 13 going to talk about alternatives to affirmative action and the 14 impact of 209 and the Hopwood decision and so forth. 15 First of all, Dean Lehman, are you aware that the 16 state of California is now majority minority? 17 A Yes. 18 Q And you were asked by Mr. Purdy whether it would surprise 19 you to know that the UC law schools, which is to say, UC 20 Berkeley, UCLA, U. S. Davis, are ten percent less, somewhat 21 less than ten percent under-represented minority and you said 22 it wouldn't surprise you; is that right? 23 A I think I said that in response to a question about 24 Berkeley in particular. 25 Q I apologize. Would it surprise you to know that class, BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 219 1 the current class, the first-year class at U.C.S.L. currently 2 contains five black students, and that's a public law school in 3 the city of Los Angeles? 4 A No, I heard that before. 5 Q And last year it contained three black students; would 6 that surprise you? 7 A No, it wouldn't surprise me. 8 Q And the years before Proposition 209 and SP1 took effect 9 it commonly contained twenty black students or more per class? 10 A Yes. 11 MS. MASSIE: That's all I have. 12 THE COURT: Okay. Dean, thank you, very much. 13 Will you be here tomorrow? 14 THE WITNESS: Yes, I will. 15 THE COURT: The defense rests I suspect other than 16 housekeeping things such as exhibits. 17 MR. PAYTON: I believe that's our last witness 18 obviously depending on what may come in the way of rebuttal. 19 If we have the burden we may have to think about what -- if we 20 want to bring someone back. But that's our last live witness. 21 We will have to go through the documents and work that out, 22 all the parties about what goes in. 23 And I should just mention to the Court that given 24 where we are and given what the Court is considering with 25 respect to whether or not Bakke is controlling or whether or BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 220 1 it's a compelling interest to seek a racially and ethnically 2 divided student body, we are going to include in what we are 3 going to try to put into the record the various expert 4 reports. We're not bringing witnesses on that. But since the 5 Court already has expert reports before the Court in summary 6 judgment, I don't see any reason why they shouldn't be in this 7 trial record as well. 8 MR. KOLBO: Well, your Honor, I haven't considered 9 that yet. I have concern, we can't cross-examine expert 10 reports about the experts. 11 THE COURT: I'm not sure we have to put them in the 12 record of this trial, but they are in the record of this case 13 because all of them have been attached at one time or another 14 to the motions for summary judgment. 15 MR. PAYTON: I understand that. I just think that 16 given that the Court is going to make a ruling on that, and 17 these are part of the materials that the Court took into 18 account I'm not proposing to call witnesses, I don't see why 19 they shouldn't be in the record. 20 THE COURT: I'm not disagreeing with you, but I 21 think they should be part of the summary judgment record, not 22 part of the trial record. And they are part of the summary 23 judgment record because they are attached to the motions for 24 summary judgment, every report here except maybe Dean 25 Syverud's last -- second supplement is not. BENCH TRIAL - VOLUME 5 MONDAY, JANUARY 22, 2001 221 1 MR. PAYTON: They're certainly in the summary 2 judgment record. I don't see why they shouldn't be in both. I 3 don't think it harms anything at all. 4 THE COURT: I'll give the Plaintiff an opportunity 5 to think about. It doesn't make any difference because I'm 6 going to rule on that issue as a result of the motions for 7 summary judgment and they are very much part of the motions 8 for summary judgment. 9 MR. PAYTON: That's why I think there's no reason 10 not to do it, but that's where we are right now. 11 THE COURT: You guys can talk about it. If it comes 12 to a point I have to make a ruling whether it should be part 13 of this record or part of the other record I'm not sure it 14 makes any difference. 15 Okay, we'll start tomorrow with Professor Orfield. 16 (Court in recess, 4:30 p.m.) 17 -- --- -- 18 19 20 21 22 23 24 25 GRUTTER -vs- BOLLINGER, ET AL