Attorneys lay foundation in admissions suit

By Anna Clark

Daily Staff Reporter

DETROIT -- "This is the day that everyone, including myself, has been waiting for," U.S. District Judge Bernard Friedman said yesterday as he settled in at his bench for the debut of the much-delayed and long-awaited lawsuit challenging the affirmative action policies of the University's Law School.

Friedman's comment opened an eight hour day in court, during which lawyers from each party of the three-pronged suit haggled over witnesses, issued opening statements and examined the Center for Individual Rights' first two witnesses.

Late Monday night, plaintiff Barbara Grutter was removed from CIR's witness list. CIR filed the lawsuit in 1997 on behalf of Grutter, a white Law School applicant.

University Deputy General Counsel Liz Barry said the legal team moved to exclude her, calling her testimony irrelevant to the primary issues of the trial, which now focuses on the extent to which race should be used in admissions.

Kirk Kolbo, an attorney representing CIR, outlined his firm's case, which includes three witnesses and various documents. His case is likely to conclude presentation today.

"What we expect this to show is that race is not just used as a plus factor to tip the scales, but is rather used as a super-factor," Kolbo said.

John Payton, a lawyer representing the University, said the University will prove that the disparity between the treatment of underrepresented minorities and their majority counterparts is "much, much smaller than the rhetoric has indicated."

"We use race judiciously," Payton told the court.

Legal counsel for the intervening defendants Miranda Massie told the judge that the group, whose presence is unprecedented in higher education affirmative action cases, will demonstrate the racial inequality that still exists and how it can detrimentally affect minority applicants.

"Affirmative action is the only way to offset that bias," Massie said, later adding, "There is no substitute for it."

She named 14 possible witnesses for the intervention, including two University students.

Intending to offer background to the University's admission policies, CIR called Allan Stillwagon, former director of admissions to the University law school, as its first witness. Stillwagon served as director from 1979-1990 and used admissions criteria that was revamped in 1992.

Stillwagon explained an admissions system that included the Special Admissions Program, which was particularly aimed at drawing minority students to the law school.

Although Stillwagon said he read "every line, every word of every applicant," he admitted that about half of the admission offers each year were given to the minority students who might not qualify through academic merit alone.

Through Payton's cross-examination, Stillwagon said he had nothing to do with the law school admissions system established in 1992 and which is on trial.

Adding to the University's cross-examination, George Washington a lawyer for the intervening defendants, questioned Stillwagon about the results of the affirmative action policies he implemented.

Stillwagon told Washington and the court that when he was a law student at the University in the early 1960s, a minority student was "very rare." Stillwagon affirmed Washington's statements that "affirmative action changed an all white institution into a place were there were at least a few minorities."

CIR also called Erica Munzel, the assistant dean and director of admissions for the University's Law School. Through Kolbo's questioning, Munzel highlighted the current admissions policies. Kolbo emphasized the part of the policy that said the law school sought to establish a "critical mass of minority students."

The two struggled over the meaning of this.

"Is one African-American student enough?" Kolbo asked her.

Munzel said that there is no set number to achieve a "critical mass." Through more questions, she said the University aims for 10 to 12 percent minority enrollment and that she relies on the feedback of the law school faculty and dean to tell her if she wasn't meeting the goal in her admissions decisions.

She said that if they disagreed with how she was carrying out the established admissions policies, they'd "let me know."

Munzel also told Kolbo that she thinks of critical mass in general terms. That is, there is not a critical mass for the hispanics and blacks specifically, but for underrepresented minorities overall.

Craig Goldblatt represented the University's cross-examination. During Goldblatt's questioning, Munzel said there was no separate admissions system for minority students and that minorities were not guaranteed admission.

"There were minority applicants we did not admit who had higher test scores and higher GPA's than majority applicants," Munzel said.

The intervention's examination used examples of law school students without impressive GPA's or LSAT scores that showed extraordinary character and life experience. Despite their below average academic performances, Munzel said the students would be "interesting" and worthwhile to have in the law school.

With the end of Munzel's testimony, the court adjourned. Kolbo said he was satisfied with the first day.

"We're pleased with the way things are going," he said. "We're doing what we want to do."

But Massie said she thought CIR didn't present a quality case.

"CIR set themselves back today," she said, adding that she thought Stillwagon's testimony was "irrelevant" and Munzel's testimony was "great for policy."

RACHEL FEIERMAN/Daily

Barbara Grutter, plaintiff in the Law School case, stands outside Detroit's federal courthouse after the first day of the trial. She will not be testifying in the case.