1 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN 2 SOUTHERN DIVISION 3 4 BARBARA GRUTTER, For herself and all others 5 Similarly situated, 6 Plaintiff, 7 v. Civil Action No. 97-CV-75928 8 LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and REGENTS OF 9 THE UNIVERSITY OF MICHIGAN, 10 Defendants. _________________________________________/ 11 12 BENCH TRIAL - VOLUME 9 13 WEDNESDAY, FEBRUARY 7th, 2001 14 15 BEFORE THE HONORABLE BERNARD FRIEDMAN United States District Judge 16 Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 238 17 Detroit, Michigan 18 - - - 19 Appearances: 20 Kirk O. Kolbo, Esq., 21 R. Lawrence Purdy, Esq., 22 On behalf of the Plaintiff, 23 24 John Payton, Esq., Craig Goldblatt, Esq., 25 On behalf of the Defendants Bollinger, et al, 2 1 - - - 2 APPEARANCES (Continued): 3 4 George B. Washington, Esq. Miranda K. S. Massie, Esq. 5 On behalf of Intervening Defendants. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Joan L. Morgan, Official Court Reporter 21 Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription. 22 23 24 25 3 1 I N D E X 2 WITNESS: PAGE: 3 CHRYSTAL JAMES 4 Direct Examination by Ms. Masley 4 5 6 WALTER ALLEN 7 Direct Examination by Ms. Massie 76 8 Cross-Examination by Mr. Payton 176 9 10 11 12 E X H I B I T S 13 14 RECEIVED 15 Trial Exhibit Number 156 126 16 Trial Exhibit Number 157 120 17 Trial Exhibit Number 158 120 18 Trial Exhibit Number 168, 169 112 19 Trial Exhibit Number 176 173 20 Trial Exhibit Number 177 173 21 Trial Exhibit Number 211 119 22 Trial Exhibit Number 212 119 23 24 25 BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 4 1 Detroit, Michigan 2 Wednesday, February 7th, 2001 3 9:10 a.m. 4 - - 5 MS. MASSIE: We'd like to call Chrystal Blossom 6 James. 7 THE COURT: Okay. If you would be kind enough to 8 raise your right hand. Do you solemnly swear or affirm to 9 tell the truth in the matter now pending before this Court? 10 MS. JAMES: I do. 11 THE COURT: You may have a seat. 12 MS. MASLEY: Jodi Masley, for the record. 13 C H R Y S T A L J A M E S . 14 being first duly sworn by the Court to tell the truth, was examined 15 and testified upon his oath as follows: 16 DIRECT EXAMINATION 17 BY MS. MASLEY: 18 Q Ms. James what is your address? 19 A My address is -- 20 THE COURT: I'm sorry, can I have your full name, 21 one more time? 22 THE WITNESS: My full name is Chrystal Blossom 23 James. 24 THE COURT: Thank you. 25 A And my address is 11811 Venus Boulevard, Apartment 324, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 5 1 Los Angeles, California 90066. 2 BY MS. MASLEY 3 Q Ms. James, are you a student today? 4 A Yes, I am, a student. 5 Q And where are you a student? 6 A I am a student at the University of California School of 7 Law, Los Angeles, UCLA School of Law. 8 Q Okay. What year are you? 9 A I'm a second year. 10 Q Did you obtain a BA before going onto law school? 11 A Yes, I did. 12 Q And where did you obtain your BA? 13 A At Stanford University. 14 Q What was your major there? 15 A Public policy. 16 Q Did you perform well there? 17 A Yes, I graduated with honors, so I believe so. 18 Q Were you admitted to the UCLA Law School after the 19 elimination of affirmative action? 20 A Yes, I was. 21 Q How many years after that elimination were you entered? 22 A I believe three years. I entered in 1999. I believe it 23 was three years after. 24 Q So were you the second class that entered? 25 A I was the third class that entered. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 6 1 Q Without affirmative action? 2 A Without affirmative action. 3 Q Was your decision to attend the UCLA Law School somehow 4 affected by the elimination of affirmative action in 5 California? 6 A Yes, it was. 7 Q How so? 8 A Well, having been at Stanford I knew what was going on, 9 and at Boalt. And I had seen an article that the Santa Fe 10 Mercury Newspaper had done, like a weekend spread, on Eric 11 Brooks and so I knew what he was going through as the only 12 black student in his class. And that affected my decision about 13 going to a UC school period. 14 There was an UCLA recruiter that came to Stanford at 15 the time I was thinking about applying. I was working on my 16 personal statement, and he came and did a little seminar with 17 our pre-law advisor and I attended that. Listened to all that 18 he had to say. And stayed after the seminar or the little 19 meeting was over, and spoke to him about my concerns about 20 what was going on at Boalt, and that was my concern about 21 UCLA, too. And I did not want to go to a school where I was 22 going to end up in that situation. And he assured me that 23 that's not what is going on at UCLA, that they were not having 24 the problems that Boalt was having, that the faculty, the 25 administration were very committed to keeping minority BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 7 1 applicant numbers up, and, you know, I go ahead and apply. He 2 gave me some tips about my personal statement. 3 And so, although I was concerned, I felt reassured 4 by this recruiter that, you know, I wasn't going into that 5 situation. But it turned out differently, of course. 6 Q So Eric Brooks was the only black student entering Boalt 7 his year; is that correct? 8 A I believe so. I know he was the only student who was 9 there at the time that that article was written. So I believe 10 yeah, I believe he was the only one who entered that year. 11 Q And you didn't want to be in that position at UCLA Law? 12 A No, I did not. 13 Q Did you apply to Boalt? 14 A I did apply to Boalt. 15 Q Why? 16 A Because my mother wanted me to apply to Boalt. I did not 17 want to attend Boalt. But my mother has been my greatest 18 supporter throughout my education. And I knew that if I didn't 19 apply, that there would always be this question. And I have -- 20 there's actually more to it. 21 It actually starts with undergrad because she wanted 22 me to go to Berkeley. I was accepted at Berkeley, too, and I 23 chose Stanford over Berkeley. And that was sort of against my 24 mother's wishes. So I applied to Boalt for my mother. And I 25 was wait listed which I felt was the best situation that I BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 8 1 could be in because, you know, it wasn't like I actually got 2 turned down, but I didn't have to actually have to go. But I 3 didn't have to look my mom in the eye and say, I'm not going. 4 I could say, oh, you know, I was wait listed, so I could 5 probably, you know, look for something else and let's go to 6 UCLA. So, yeah. 7 Q So you did not think you would suffer the fate of Eric 8 Brooks at UCLA. 9 A No, I wouldn't have gone. 10 Q How many black students ended up enrolling in your 11 entering class? 12 A Two. One other person other than myself. 13 Q When you saw that what did you realize about the 14 situation you were in? 15 A I realized I was in the same situation that Eric Brooks 16 was in. And I was -- I was shocked. And the first day or 17 orientation, when I looked around at my classmates -- and, you 18 know, we all gathered outside in the courtyard, and then we go 19 into this auditorium so that our Dean can speak to us. And 20 when I looked around the room, and there was one other face 21 that looked like mine. And this group of approximately three 22 hundred students, I could only find one face that looked like 23 mine. 24 And, actually, I've been told that there were three 25 African-Americans. And I was searching that crowd for the BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 9 1 third one because I already knew what the second one looked 2 like. And I searching that crowd, you know, are you the third 3 one, you know, desperately seeking that third one. But -- 4 well, I later found out who the third one was. 5 Q Is there anything you want to say about the third person? 6 A Well, what I'd like to say because when you asked me the 7 question how many enrolled and I said two. The third person 8 doesn't identify it as being African-American. So when he was 9 approached by African-Americans, he claimed to be Creole. And 10 when he was approached by non African-Americans, he claimed to 11 be Caucasian. 12 So my understanding is that -- because his parents 13 have come to the campus, that his mother is white, and his 14 father is -- at least mix. So his father had African decent 15 in him. But he did not identify as being African-American, and 16 he did not associate with African-Americans. And after the 17 first year, he transferred out of UCLA. So there are two in my 18 class now. 19 Q Have you always been a top student in your life? 20 A I believe so, yes. Straight A, honor roll, yes. 21 Q When you began your classes at UCLA Law, was there any 22 overt hostility on the part of white students to your presence 23 at the school? 24 A When you say "began" do you mean first week, or -- okay. 25 In the beginning it wasn't overt. It was more like I was BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 10 1 invisible. I mean, you know -- the first few weeks, I was like 2 any other law student, you know, wandering around the hallways, 3 dragging this big book bag, carrying these big legal books, 4 scared of the Socratic method, trying to find my way to class. 5 And so it wasn't that I would say overt, you know, racism or -- 6 it was about invisible. I was just a non factor. In my 7 classroom, you know, I just sat, sort of a non factor. 8 Q Did you notice that when you or other minorities or women 9 spoke in the class that there were certain responses on the 10 part of other classmates? 11 A Yes. In my civil procedure class -- I had a group of 12 students that sat a row behind me, and who -- anytime a woman 13 or any time a person of color would make a comment, you know, 14 would try to answer a question, because this was the Socratic 15 method, this was our series Socratic method. So everybody was 16 nervous in that class. And our professor was very quick which 17 made me -- probably is why I'm responding the way, the 18 professor -- but, you know, part of what he was training us to 19 do was to speak. And -- people were nervous. 20 But anytime a minority spoke, anytime a woman spoke 21 there's this line of students sitting behind me who are 22 snickering, who are making comments, oh, that's smart, oh, 23 look at her. Later on in the semester because that was the 24 first semester, first year, and when some of the protesting 25 started happening, and there were people coming into our BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 11 1 classroom to announce that there were going to be meetings, 2 that there were going rallies that day. And somebody came in 3 wearing the Affirmative Action T-shirt, and stood up to make 4 an announcement. And these people in the back, you know, I 5 could hear them saying, you know, "F" affirmative action. 6 Just very negative comments. And it was me and a couple of my 7 classmates who were there, all people of color sitting. 8 And we went and spoke to our professor about the 9 fact that this was going on. And our professor made a general 10 announcement to the class, not specific to, you know, 11 inappropriate comments, but more so that you just shouldn't be 12 speaking while your other classmates are speaking, just out of 13 courtesy. So, it was just -- you know, I don't know whether 14 those students got the message that it was, you know, in 15 response to their comments. It was more, he was just making a 16 general announcement to everybody that I don't want you 17 talking while your classmates are talking. So -- it 18 continued. 19 Q The snickering on the part and the comments of those 20 students, what affect did that have on our learning in the 21 classroom? 22 A It added to the fact that I didn't want to raise my hand. 23 I didn't want to speak up. I felt very silenced in that 24 classroom, and it was part of the reason that I felt silenced. 25 Obviously, if you're sitting in front of a group of students BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 12 1 that are, you know, they feel empowered because there's so many 2 of them to make whatever comments they want to make. And you 3 feel like you're just sitting there by yourself and, you know, 4 you don't want to speak up when you hear them laughing, and 5 snickering, and saying derogatory things, you don't want to 6 speak up. And we're talking about a subject that's not even 7 that controversial. Civil Procedure, it's not that 8 controversial. 9 So that's my first semester, first year, that's the 10 experience that I'm getting. And, you know, don't speak up in 11 class, don't raise your hand. Because I was the sort of 12 person, you know, I was pretty confident out. You know, I'd 13 raise my hand if I thought I knew something. I wasn't that 14 embarrassed to be wrong. I've been wrong before in my life. 15 But, you know, I'm not going to risk, you know, being 16 ridiculed and laughed at, you know -- so, yeah, I stopped 17 raising my hand. 18 Q Were there other things inhibiting you from raising your 19 hand? 20 A There were. And in that class and other classes, I 21 started to see a pattern starting to happen in the classroom 22 with the professors as they would call one student and -- for 23 example, in my torts class, I was the only black in that class 24 because the other black student was in a different section from 25 me. We were in the same large section, but different small BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 13 1 section. I was the only student in that semester who never got 2 called on to give a full case reading. 3 If I raised my hand in that class, I would get 4 called on. But I was the only student that never was actually 5 on call that day. And we weren't assigned ahead of time. 6 This -- the professor just picked a student who was on call 7 that day, so to speak, for that day's reading. I was the only 8 student in that section of maybe about thirty-five people, a 9 small enough section that it was obvious that, you know, I've 10 never been called on. 11 In my Civil Procedure class, initially I was raising 12 my hand. I felt like when I raised my hand I was asked 13 questions about the facts. And if I didn't -- I was asked 14 questions about the facts. If we went into any type of 15 analogy, or any type of reasoning at all, and I wasn't just 16 right there with the professor, he would go to another 17 student, and then ask that student to explain what I was 18 saying. Where with other students, if they didn't have -- if 19 they didn't answer the way he thought they should answer 20 initially, they were always afforded the opportunity to come 21 back and say, oh -- you know, after he would say something, 22 and they were offered the opportunity to come back and say, 23 oh, well, I think da, da, da, and explain why, you know -- or 24 add to their original answer. 25 Also in that class, this was a professor who was up BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 14 1 for tenure. And so towards the middle, at the end of the 2 semester, he had, you know, professors coming and evaluating, 3 he was being taped. And I also noticed that days when 4 professors came in to evaluate him, he chose teams. He chose 5 who was going to be call that morning because he would come 6 in, stand at the podium, look at his seating chart, and, you 7 know, indicate -- give some sort of indication that he was 8 deciding who was going to be on call. 9 Well, on days when he was being evaluated, only 10 white males were on call that day. So, you know, once I 11 started seeing this, I realized, you know, this is not a good 12 environment. This is -- I had the feeling that this professor 13 doesn't believe that I have the ability to compete with my 14 classmates. 15 And I went to him, and I said, you know, I'm having 16 a problem in your classroom. I feel that I'm losing my 17 confidence. You know, I feel I don't want to raise my hand 18 any more. And his advice to me was -- I thought it was 19 advice, you know, the first year -- first semester law school 20 student was -- well, you don't need to raise your hand in 21 class. All you need to worry about is doing well on the final 22 exam. So I thought, okay, you know, okay, fine. Okay, I 23 won't raise my hand. 24 And it wasn't until maybe -- maybe over the summer, 25 in the beginning of this second year, that I realized how BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 15 1 wrong and dangerous and damaging that that advice was. And 2 this was a person, you know, I know he was sympathetic to the 3 fact that, you know, there's no minorities sitting in this 4 class basically. But he didn't even realize that there's a 5 strong correlation between me being able to participate and 6 engage that information in class and me doing well in the 7 final at the end. You know, he saw it as two separate things. 8 But if you're not sitting in that classroom, and you're not 9 thinking and engaging in that information -- I mean, of 10 course, you know as a lawyer, it's not -- law is not something 11 you just jump in the night before the exam and try to memorize 12 that information. You need to be working with it the whole 13 semester. And so I didn't realize that until it was too late. 14 But, you know -- 15 Q Did it affect your performance on your exam? 16 A Well, yes, it did. I got my worse grade for a semester 17 in his class. 18 Q And are exams the only grades for the course? 19 A Yes. 20 Q At some point in your semester exam, did you decide that 21 you were going to drop out of UCLA Law School? 22 A Yes, after -- first semester we have three exams. And 23 after my first two exams and I decided I was going to drop out, 24 and I made the mistake of telling Lena, the other student, 25 before our third exam, and she was really upset. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 16 1 Q The other black student. 2 A The other black student. And I didn't -- it never 3 dawned on me, making a statement about my life could affect her 4 life so much. And I was just -- I already felt bad that I was 5 dropping out. I mean, you know, I had to tell my family. But 6 when she called me and she was crying, and she was so upset. 7 And she told me that after I told her that, that she didn't 8 realize having me there meant so much to her, that it was just 9 -- just having a person there meant so much to her. 10 So she ended up calling the Dean, the Deans 11 Admissions at the school, and telling the Dean that I was 12 going to drop out. And this was during finals, and I was at 13 home. And she told the Dean, if Crystal drops, I'm going, 14 too. So they're going to lose their whole African-American 15 class, which was only two, but they were going to lose 16 everything. 17 So I got a call from the Dean, you know, and she 18 talked to me. And I told her about the problems that I was 19 having in class. I told her about the students that were 20 making comments in the classroom. And, you know, she 21 convinced me that, you know, to wait, go home over Christmas 22 break and to decide, to just wait to decide. So I said okay. 23 So we took our last exam, you know. It was bad. I 24 felt so guilty for having told Lena this before her last exam 25 because she was so upset and she doesn't need that extra BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 17 1 burden, nor did I it, but she did not need that extra burden 2 going into that exam, worrying about whether she's going to be 3 the only black student coming back after Christmas break. 4 So I went home, and I talked to my mom, and I talked 5 to Lena, and I really felt like I had to come back for her 6 just as much as for me because this is a single mother with 7 two children, and how could I make a decision that could 8 effect her, you know, so adversely that she drops out of law 9 school? I mean, it was a burden. I couldn't believe that I 10 was making -- I was going to make a decision that I had to 11 decide on someone else's life, that was going to impact 12 someone else's life. It's not my family member, not my loved 13 one, but, you know, just another student there trying to make 14 it. 15 Q In the class where the snickering and the comments was 16 going in one of those classes, did you know the other people 17 well that were being talked about and laughed at? 18 A Yeah, I knew the people that were sitting right beside 19 me, yes. Well, there were three students sitting beside me. 20 And I knew the one that was closest to me well. I knew the 21 person who was on the other side of her fairly well. And the 22 person who was sitting next to me, we were in a study group 23 together. And the person sitting next to her, attended our 24 study groups a little bit during the first semester. And then 25 I didn't know the other two people very well. It was the BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 18 1 beginning of the first semester. So we were on -- like, we 2 would say hi. We knew each other's names, but weren't in a 3 study group together. 4 Q Did the students who were making these comments know 5 anything about those people you're talking about? 6 A Not that I'm aware of. I mean, I never saw them 7 associate with each other. I wouldn't think that they 8 associated with each other. So I don't know how they could 9 know anything more than just the fact that they are first-year 10 law students. They might have known what undergraduate school 11 they came from because that starts like -- kind of the first 12 thing you ask each other, you know, what was your undergrad, 13 what was your major. But more than that, other than, you know, 14 what they look like, or -- no, I don't think so. 15 Q You took Constitutional Law first year? 16 A Yes. 17 Q What do you remember most about that class? 18 A I remember being upset in that class almost every single 19 day. I remember being in that classroom, and feeling such waves 20 of emotions over some of the classroom comments that were 21 happening that I could not follow lecture for ten or fifteen 22 minutes. I remember my legs going under the table 23 uncontrollably. I remember students feeling free enough that 24 when anything was mentioned about color, to turn in their seat 25 and stare me, and I sat in the front row. I had students sit BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 19 1 there and turn to me, and stare at me, to wait for my reaction. 2 I remember Lena getting up and leaving the classroom, running 3 out crying, running out of the school crying not knowing 4 whether she's okay. And -- that was totally my worst class. 5 That was my worst class. 6 I remember lots of racist comments being made. I 7 remember going to speak to the professor in anticipation of 8 problems that I knew was going to happen in the classroom. 9 I don't know if you want me to be more specific. 10 Well, we had problems -- the first problem I 11 remember was with the Korematsu case where, you know, we 12 talked about the case and we covered it in two parts. So, it 13 came before the Brown case, the Plessy case. And the first 14 comment that I remember feeling a little bit uneasy about was 15 a student who said -- who felt like it was okay to round up -- 16 it was okay for the United States to have rounded up all the 17 Japanese at that time and intern them because you really 18 couldn't tell who was loyal and who wasn't loyal. So this 19 person was basically making the military's argument in that 20 case, that since you couldn't tell who was loyal and who 21 wasn't, you would just to have to round them all up and intern 22 them. Of course, people are disturbed over that comment. And 23 another classmate, you know, answers back and says, well, I 24 really don't understand your reasoning there, are you 25 suggesting that if the United States went to war with Great BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 20 1 Britain that it would be okay, and that the United States 2 would round up all people of British descent and put them in a 3 internment camp. So the student stopped for a few moments and 4 he, goes, well, yeah. 5 And the significance for me over that exchange was 6 the fact that my professor stayed out of it. And here this 7 person was saying something which I think a lot of us in that 8 classroom felt was, you know, was wrong and maybe insensitive 9 to some extent. But what I got out of it was, that we're not 10 going to have an intellectual discussion about these issues, 11 you know. This person felt comfortable to just blurt out what 12 they said. Yet another student tries to respond, but this 13 person -- once that person responded, this was like, yeah, you 14 know, not even trying to engage in an intellectual discussion. 15 And my professor was not mediating this. He was not 16 encouraging this to -- you know, okay, well, let's have an 17 intellectual discussion about why you feel this way, or let's 18 talk about the law. It was just kind of, okay, we need to 19 move on to the next topic because this is getting a little 20 controversial here. 21 So it was after that comment was made that I went to 22 his office hours and I said, you know, I had seen the 23 syllabus, I knew what was coming up. In fact, we had actually 24 read Brown before. We started reading the assignment before 25 we actually got to class. But we weren't covering the actual BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 21 1 decision in Brown yet we were reading it for something else. 2 But I went to his office hours and I said, you know, this 3 comment really disturbs me. I know we got Brown coming up. I 4 know he was doing Prop 209. He had additional readings 5 assigned for that. So I knew that there was affirmative 6 action coming. And I talked to him about the fact, you know, 7 it's going to be difficult and I'm already feeling 8 uncomfortable in this environment, and you're the professor, 9 you control this classroom. I see you as the mediator and I'm 10 expecting you to control this classroom, and to mediate these 11 discussions. I don't want to censure anybody. I don't want 12 anybody to feel like they're censored in that classroom. You, 13 as the professor, have to mediate this so that we're having, 14 you know, intellectual discussions. And I told him, I said, I 15 feel like one of your responsibilities as a professor here is 16 to teach us as lawyers. We're going to have different 17 opinions. And one of your responsibilities is, is to teach us 18 how to do that in a way where we're not backing each other up 19 in a corner, and just responding for various dispersive 20 stances. Teach us how to talk to each other about 21 controversial things because these are skills we need also.3. 22 Q What happened when you did Brown versus the Board of 23 Education? 24 A What happened -- 25 THE COURT: What was the professor's response to BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 22 1 you? 2 THE WITNESS: He agreed. And he came back to class 3 the next day or the next time we had class, and he made an 4 announcement that, you know, we're getting ready to move into 5 very controversial, very sensitive material, and I want you 6 guys to be sensitive to people in this classroom who are going 7 to have different opinions. 8 THE COURT: But he didn't disagree. He agreed that 9 was part of his role -- 10 THE WITNESS: He did agree. I don't think he agreed 11 as strongly as I did. But I was coming at it from, you know, 12 I pay tuition here, and I pay your salary, and to some extent, 13 you're here to teach me. This is what I'm here paying for. 14 So I don't know if he agreed as strongly, but, yeah, he didn't 15 disagree. 16 THE COURT: Go on. 17 BY MS. MASLEY: 18 Q I'm sorry, what happened when you read Brown? 19 A It was really, really difficult. Actually, we kind of 20 did a group of cases together. We did the Plessy case at the 21 same time. So there were comments made like about Plessy -- 22 there was a woman sitting right next to me, why did he just 23 pass? You know, why would he admit to being black if he looked 24 as though he was not black. And he wanted to ride in the car, 25 why didn't he just pass? BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 23 1 And I wasn't quite upset about that comment as Lena 2 was. That was the day she went running out of the class, 3 crying, running out of school, crying. 4 I don't whether it was because this woman was 5 sitting next to me, and I didn't want to react because I know 6 all eyes on me, and we weren't in the same row. Whenever 7 stuff like this comes up -- I'm sorry -- for Brown -- the 8 discussion of Brown went okay. We focused a lot on the 9 criticism of the decision. And the criticism specifically on 10 the Brown court -- the court using the psychological report in 11 their decision. We focused a lot on that. One of the 12 students who made a comment and basically just said, well, the 13 Brown decision was wrong and it just should have never 14 happened. 15 And that really bothered me because at the moment 16 that they said that, I don't know whether they had the 17 realization that if that decision had not happened, I wouldn't 18 be allowed to sit in that classroom with him, right then and 19 there. And I guess -- it was just amazing to me that he could 20 callously throw out his comment that meant me having to be out 21 of that classroom. It was -- you know, I just had this vision 22 of, like, I'm just not here, I'm just not here. I mean, I 23 don't know whether he considered it and he didn't care, or 24 what. But it was just -- well, Brown should have just never 25 happened. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 24 1 And I think probably he was saying it not because he 2 doesn't want blacks and whites to be in the same classroom, 3 but because he -- it just didn't even dawn on him, really, 4 what the significance of it was which would be blacks and 5 whites wouldn't be in the same classroom. And that really, 6 really bothered me. So I was really upset. 7 And what happens to you, you're sitting there, what 8 happens to me, my heart starts beating, and I feel this 9 pressure, you know, I feel like I need to respond to that, I 10 need to respond to that. But -- blood starts going, your 11 heart starts pumping. And you don't want to respond from an 12 emotional point -- a perspective because already you're 13 perceived as not being able to be rational, that you just come 14 from an emotional perspective. And so, you know -- especially 15 when you're only being called on to state the facts, and 16 you're not being called on to show that you can actually read, 17 and you can actually analyze. So you have this -- you feel 18 this burden of I need to react, I need to react, but I don't 19 want sound emotional because if I sound emotional they're not 20 going to listen to what I'm saying, they're just going to hear 21 me and go, oh, yeah, that's just exactly what we thought. And 22 so you don't say anything because you're not there yet, you're 23 not -- you know, you're so emotional. 24 And I remember talking to Lena and she's feeling 25 exactly the same way. And she starts telling me, write, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 25 1 you've got it wright. And I brought my laptop, and I actually 2 took notes on my laptop. Of course, I get so nervous and I'm 3 not that great of typist anyways, but I would get so nervous I 4 couldn't type. So I started bringing paper and pen so that I 5 could just write, write, write, write, just to control the 6 energy and try to come back down. But, you know, for that ten 7 or fifteen minutes I didn't know what was going on in the 8 classroom. I didn't hear my professor. I didn't hear the 9 students. All I heard was my own heart beating; my own head 10 throbbing; my own inner-critical saying, why aren't you saying 11 something, why aren't you addressing this, why aren't you 12 saying something? And then I would leave that classroom, and 13 I would feel such shame and such guilt from not addressing 14 those comments. And Lena would feel the same way. And I 15 would feel I let her down, you know. You know, if she's 16 upset, I need to stay calm. And we felt -- we felt, okay, one 17 of us has to be able to say something, we can't both just be 18 sitting there upset. And so we started to work on it, you 19 know. We started to take turns so that one of us wouldn't 20 feel the burden all the time to speak up. 21 But I felt like -- and there was actually a time in 22 that class when my professor asked what do you think 23 the African-American prospective would be. And a white person 24 answered. I mean, two of us are sitting in that classroom, and 25 he has to ask a white person what do you think the BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 26 1 African-Americans prospective would be on this? 2 So, yeah, I felt pretty much out of control most of 3 the time in that class. 4 Q Did white students complain about your presence in those 5 classes? 6 A When I went to my professor and talked to him about, you 7 know, how I was feeling, he told me that other students had 8 come to him and felt like they couldn't be as candid as they 9 wanted to be in class because Lena and I were in that class. 10 And I was just -- I was stunned that -- because of the comments 11 that were already made, I was, like, how much candid do they 12 want to be? I mean, they're already saying things that are, to 13 me, just, you know, very racist. I mean, I didn't know what 14 they wanted to say. But he told me that. And that's when I 15 said to him, well, I don't want anybody to feel censored in 16 that class, but this is a law school, Constitutional Law class, 17 and we should be having an intellectual discussion here, not 18 just having people shout out whatever little racist thing comes 19 off the tip of their tongue, you know, at the top of their 20 head. 21 So, yeah, I guess -- you know, I only heard it from 22 him, but I guess there were students that felt uncomfortable 23 that they couldn't say what they wanted to say because Lena 24 and I were sitting in the classroom. 25 Q Just because you were there. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 27 1 A I'm assuming so -- and, well, because we're black. 2 Q Did you have similar experiences in your criminal law 3 class? 4 A I did. The main thing -- well, criminal law, I had that 5 first semester, too. And that was again another class where I 6 realized and my friends realized that we were not ever going to 7 talk about some of the social implications of these cases, and 8 even some of the social prospectives that the justices had in 9 making these decisions. 10 But mainly I had a problem when we got to the 11 Bernard Getz case. And we covered the case in class, and the 12 professor -- and he didn't do this very often in class, 13 decided to make a handout of hypotheticals. So we had this 14 sheet that we received, and it was four or five different 15 hypotheticals. And each hypothetical was a version of a white 16 woman standing at an ATM, withdrawing money, a black man -- it 17 was at night, and a black man coming up to her to ask for 18 directions. And I remember it was the last hypothetical -- 19 there were different versions of it. Some, she knew he was 20 going to ask for directions; some she didn't; some he was just 21 this way; some he wasn't. But the last hypothetical was 22 basically that he started to ask her for directions. And she 23 turns around and shoots him with a gun, kills him. And the 24 question, you know, is this legal? You know, is she 25 experiencing extreme emotional distress? I mean under New BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 28 1 York law is this legal? And someone answered, yes. And -- so 2 we get this handout. We don't really discuss it. We just 3 kind of go through the answers, and we leave class that day. 4 I mean we were in just -- I mean, oh, my God, what do you 5 mean, what do you mean this is -- and so we get back to class 6 the next day, we're on a different subject. It's like it 7 never happened. 8 And I'm sitting there and I'm thinking, this didn't 9 need to be this way. I mean, didn't this professor, he's been 10 teaching criminal law for years, didn't this professor for a 11 moment think about the fact that he was giving us 12 hypotheticals of a black man getting shot for just stopping 13 and asking directions? Didn't he think about the fact that 14 he's using a hypothetical, a white man who felt threatened by 15 four black youths. This man decided to use a hypothetical 16 about a white woman standing at an ATM who kills a black man 17 without knowing the reason why which for me -- and I can't 18 believe that not for most people -- it brought up the imagery 19 of, you know, back in the deep south where a white woman could 20 just claim anything, and a black man is going to get lynched 21 without even getting a trial. It didn't occur to him that 22 he's invoking the same imagery, and we never discuss it? It's 23 just a handout like, you know, take it home, and then we move 24 on to a new subject the next day. And he's got the only two 25 black students in the class, in his criminal law class, and BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 29 1 that's what he chooses to do. 2 Q This pressure from racism in your classes, did it change 3 your self-image and your relationship to your law school work? 4 A Oh, yes. I mean -- you know, I enjoyed school. I was a 5 good student. I was confident until I got there. And I 6 started thinking, you know, there's something wrong here, 7 there's something wrong. And as I was -- you know, as I was 8 losing my confidence to speak up in class, as I was seeing that 9 my professors had no confidence in me -- I mean, that's what I 10 was assuming by the fact, you know, if they're not calling on 11 me, or they're only calling on me to answer one small little 12 detail, and then, you know, other people would be on call all 13 day in class. 14 I started to lose my confidence about even becoming 15 an attorney, about my capabilities to become an attorney, 16 about my desire to become an attorney. And by second 17 semester, I -- you know, I just said I can't control this, and 18 I started looking to other areas of my life that I could 19 control, and my focus just shifted. So I was there. I was 20 showing up for class every day. But I wasn't -- you know, I 21 wasn't really engaging in it. I was -- I felt like I was 22 spending more time on it, but not with any of the confidence 23 or the optimism that I started law school with, you know. It 24 was more than -- I mean, I had to really force myself to want 25 to do the reading. Forced every day I got up. And -- it's BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 30 1 still like that. Every day I have to convince myself to go to 2 school, and I used to love school. Because when I started at 3 UCLA, I wanted to do the joint degree program. I knew at some 4 point, you know, given how I was going to have to work as a 5 lawyer afterwards, but I wanted to go back and do a Ph.D. in 6 my public policy. And once I got there, I was just so glad I 7 hadn't applied to the business school. It was, you know, I 8 just want out of school, period. I had no motivation or 9 desire for academics. I mean, I love reading. I love 10 arguing. I love writing. I was a great writer before I got 11 to UCLA. I used to have my professors ask to keep my papers 12 as examples for other students in class. I spent my last 13 quarter at Stanford working on my honors thesis, and I loved 14 it. And then all of a sudden, I can't write a paragraph, I 15 can't write a sentence? So it was very discouraging. 16 Q And who was telling you or treating you like you could 17 not write a paragraph or a sentence? 18 A My lawyering skills professor. I mean, you know, a 19 paragraph, nothing good in a paragraph. It was just amazing to 20 me. I know writing from a legal standpoint is different, but 21 it's not that different that you can't even get a paragraph 22 correct. 23 Q Were you ever in classes where professors would go down 24 the row and call on people? 25 A Frequently. In my large section that's -- you know, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 31 1 sometimes they way the did it. Not in the class where the 2 professor had a seating chart, but in other classes which was 3 more a softer Socratic method. Yeah, they would start calling 4 -- you could see a pattern where they're call on a row until 5 they get right up to me and then they jump to the row behind 6 me, or they jump to the row in front of me, or they jump to the 7 row on this side of the room. And I don't know what their 8 motivation was for that. I don't know whether they felt like 9 I'm not going to call you because I don't want to embarrass 10 you. And I don't know whether they realized that the fact that 11 they didn't call on me, you know, that's what embarrassed me 12 because it was very obvious that they were not calling on me. 13 And so the perception is that they're not calling on me because 14 I couldn't possibly know the answer. And that was a stigma. 15 That was embarrassing. 16 Q What was at stake for you each time you were sitting in 17 those classes and taking those exams? 18 A My emotional and physical well-being was at stake. I 19 mean, if you really want to get down to it, that's what it was. 20 I mean, I was emotionally a wreck, and that's the basic of what 21 was at stake. 22 Next level was at stake, my learning, my GPA, my 23 opportunity. I think most people realized that, you know, 24 your first-year law grades are very important in terms of you 25 being eligible for employment, your summer job, you know, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 32 1 externship, all of that. All of that was at stake. Every time 2 I got emotional in that class for -- I felt silence in that 3 class and I didn't engage that material, you know, that was 4 effecting how I was going to do on the final exam. How I do 5 on the final exam effects what I put on my resume. It effects 6 my GPA. It effects what I put on a resume. It effects 7 whether I can and I have not been able to participate in any 8 of the on-camp interview programs which our program is -- 9 because I don't have the minimum GPA that these firms want. 10 So -- and then, who knows? I don't know how it's even going 11 to effect me. 12 Now -- the battle that I'm fighting now, is that our 13 school has this idea and I don't know whether it's good or 14 not, but that your first-year grades are going to determine 15 whether you pass the bar. And so I'm finding out now, people 16 telling me I'm not going to pass the bar. So maybe all of this 17 is for nothing. Maybe I'm not going to be an attorney. 18 So what's at stake, everything's at stake. Every 19 person who's invested in me up until this point, their 20 expectations are at stake, their feelings are at stake. My 21 future is at stake. 22 Q How would you compare and contrast your experience at 23 UCLA Law after the elimination of affirmative action and your 24 experience at Stanford? 25 A It's like night and day. It's like night and day. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 33 1 Stanford had affirmative action, and not for one minute that I 2 was at Stanford, not for one minute ever, did I feel -- you 3 know, I attended classes. I was selected into a program to 4 spend a quarter in Washington, D.C. I did an internship at the 5 Department of Commerce. I attended lots of events there that 6 the Stanford and Washington campus had going on. Lots of 7 interactions with different people, with dignitaries. Not for 8 one minute did I ever feel like a student, a Stanford student, 9 a Stanford faculty member, a Stanford administrator thought 10 that I was there because of affirmative action. I came to UCLA 11 Law School after the end of affirmative action, and I have 12 gotten that feeling the students sitting in my classroom, from 13 my professors, from the administrators. I actually had an 14 alumni ask me, how do I think I got in to UCLA Law School? And 15 there is no affirmative action, yet I get treated like I'm 16 there because of affirmative action all of the time. 17 Q When you were being treated and judged in these ways, did 18 you feel like it was just you who was being treated and judged? 19 A No, no. I -- I mean, because I had Lena. And we were 20 going through it together. There were other people of color 21 that were going through it also. But I think Lena and I were 22 spotlighted because there were just the two of us. So we sort 23 of were just highlighted more than the other students. But 24 Latino students are going through the same thing. There was 25 only one Native American in my class, you know. So, they're BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 34 1 going through it, too. So I knew it wasn't just me. It's just 2 that the whole, you know, black and white, it's more extreme 3 with African-Americans than it is. And we were just two. 4 Q You said that many times you found yourself silent, not 5 saying anything, wishing you would speak -- 6 A Yes. 7 Q Each time you were silent, what toll did that have on 8 you? 9 A A real emotional toll, a real -- you just -- you lose a 10 piece of yourself. You lose self-confidence. You lose your 11 power. Each time I didn't raise my hand when I knew the 12 answer, each time that I didn't respond to a comment that I 13 knew was wrong, I felt a little piece of me leaving. I felt a 14 little bit of who I was dying off. You know, I was -- I think 15 I was tremendous person before I got to law school. I had been 16 through a lot. I had accomplished a lot. And I felt like this 17 defeated person who had no power, who had no voice. It took 18 thirty-four years for me to accomplish everything in less than 19 a year I felt like I was just powerless, like I had nothing. 20 And I didn't even know -- you know, my mom, she can't 21 understand this. She can't understand why I just can't draw on 22 the strength of everything that I've done before that. She 23 can't understand how sitting in that classroom, day-after-day, 24 and feeling parts of you dying and feeling, you know, 25 dis-empowered, that that's all you can focus on while you're BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 35 1 there. You don't -- you can't just go, oh, well, but yeah, but 2 I used to run my own business, but yeah, I used to be able to 3 do this, yeah, I used to be able to do that. You just sit there 4 and you just feel like I don't have any power, I don't have any 5 strength, I'm weak. You know, that's how you start to feel. 6 You're losing that. It starts to take a physical toll. You 7 can't sleep. You're stressed all the time. So it has a lot of 8 costs. 9 Q Well, you're a tremendous person now. 10 A Thank you. 11 Q How did you finish the year academically? 12 A First year, I did marginally better than I did first 13 semester. And part of the reason for that -- I don't know if 14 you want me to go into the reason why. Part of the reason why 15 was because after your first semester grades which I did not do 16 well, the school has an academic support system. And the way 17 that that works is they have a professor who teaches a class in 18 a sort of a supportive environment. Meaning, you have a study 19 group, and you go to that study group, and you do weekly 20 assignments. And for our first year it was going to be -- 21 property was the class. So when -- you're eligible -- I didn't 22 have to go into in, my grades aren't bad enough -- well, first 23 year I don't know if -- I don't think anyone has to go into it. 24 I think it's optional. But, you know, that class is there, and 25 it's to help you. And I remember, you know, Lena and I talking BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 36 1 about it because we're both eligible to go into it. And we 2 talked about the fact that we didn't want both of us to be in 3 it, what would that look like if both of us went into that 4 class, because that class has a stigma. It's the "remedial" 5 class. It's the class of "dummies" who can't make it in law 6 school. So we didn't want the whole African-American class to 7 be in there. 8 And so, I didn't really care for the professor all 9 that much. She had been at the summer program, and -- it's 10 not that I didn't like her personally, I just kind of had some 11 trouble with her style of teaching because her style of 12 teaching is kind of like a kindergarten teacher. We have 13 blue, we have yellow, and I guess that's what they think 14 academic support is all about. So I said, well, I'll stay in 15 the regular property class because we would have had that 16 class together. It was a big section class. So she went into 17 the academic support class, and I stayed out. And I can tell 18 you she did a lot better than I did second semester. So I did 19 not finish the year very strongly, but I did marginally better 20 than first semester. 21 Q Was that what your performance should have been? 22 A No, no. I mean -- I knew the material. I understood the 23 material. Even if I wasn't raising my hand in class, you know, 24 I knew whether I understood what was going on or not when I was 25 able to tune in. I knew I should have done better. I was not BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 37 1 -- it wasn't that I got the exam and I didn't understand what 2 the professor was asking. It's not that I didn't understand 3 what a law school answer took. It's not that I didn't 4 understand that IRAK was. I should have done better, and I 5 could have done better. 6 Q What was it that held you back? 7 A My lack of confidence. My state of mind when I sitting 8 down taking that exam. And my state of mind throughout the 9 semester. I mean, I will have to say that not working with 10 that material, you know, it does impact how you're going to do 11 on the exam. You're not practicing talking about it. You're 12 not practicing formulating the arguments, you know. That 13 effects -- it effects your pace, if nothing else, because you 14 have to stop and do all that during the exam. 15 Q And was it the accumulation of these racist incidents and 16 the atmosphere in the law school that snapped your confidence 17 from you? 18 A Yes. It's like taking a battering every day. And it's 19 still -- I mean, it's not just the horrors of first year 20 because very first-year student has horrors. It's a horrible 21 thing for a year. But, you know, it's even more horrible when 22 you're only one of two, or you're only one, and you're sitting 23 there with these extra burdens on you, on top of just the 24 horrors of being a first-year student. And although the 25 horrors of being a first-year student are over for me, the BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 38 1 other aspects of being at UCLA after the end of affirmative 2 action are still there. I still carry them every day, and I 3 still take a battering over them every day. 4 Q Have you at some point recently taken an academic support 5 class? 6 A Yes, after I -- after I did only marginally better, I 7 went home, and, you know, I was still optimist because I had 8 done a little better, and I was still optimist that, hey, I can 9 turn this around. And at some point, I don't remember exactly 10 what day it was, but in the month of July I received a letter 11 from the Dean stating that I was on academic counselling, and 12 that I would have to have every class that I wanted to take for 13 second year approved by the Dean. And that I needed to take -- 14 initially reading the letter, I thought I had to take both 15 classes. There are two academic support classes for second 16 year:community property and wills and trusts, and I thought I 17 had to take both so I ended up signing up for both. So, yes, I 18 was in two academic support classes my first semester of second 19 year. 20 Q And have you felt you've been treated fairly and equally 21 in that context? 22 A In one of the classes I believe I was, in the wills and 23 trusts class which is taught by the professor who taught the 24 first-year property class. So I ended up being in her class 25 anyway even though, you know, I chose not to go in first year. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 39 1 My other class, community property, I thought 2 throughout the semester that I was being treated equally. I 3 thought I was doing well in that class. I enjoyed the 4 subject. I understood it. I was tutoring other students in 5 that subject. I was attending the weekly study groups which 6 included doing presentations to the other class. I always had 7 great compliments from my professor on the presentations. 8 Up until a week before finals, and part of what this 9 program does is at the end you start taking practice essays. 10 You write out answers to her questions. And there are four 11 questions. You don't have to do it. It's voluntary. And you 12 try to do it as soon as possible so you can get better 13 feedback from the professor because if you wait until the end, 14 everybody jams up, you're not going to get much feedback. 15 So I did that. I turned in my first one, and I got 16 mediocre, you know, you need to improve here, you need to do 17 this. So you keep rewriting it. The advantage to this is 18 that you can rewrite it until you get to that "A" answer. 19 She'll keep telling you what to do to get to the "A" answer. 20 So I needed to rewrite it, so I did that. But it was, you 21 know, getting close, so I decided well, I'm going to go in and 22 do question two and three also. So I submitted those, too. 23 And it was a week before the final exam that I got back 24 comments from her and the comments were, are you intimidated 25 by the question? It seems like you're having a problem, you BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 40 1 know -- because I went and talked to her about it. It seems 2 like you're just intimated by the question. 3 There was nothing -- there were no comments that 4 were constructive in terms of substantive stuff that I could 5 do to correct the essay. It was all comments about me and how 6 I approached, or how I perceive, or how I -- you know, decided 7 to set up my answers. And so -- when I got those, I was just 8 -- I was floored, I couldn't believe it, you know. I went 9 downstairs after getting -- our library, our downstairs is our 10 study area. And my friends were down there. And I was just so 11 upset. I was actually suppose to be outlining. I was suppose 12 to be working on something else, and I couldn't focus. I 13 couldn't focus for, you know, an hour, I'm just sitting here. 14 My friends are telling it's okay, you know, you need to go 15 talk to her. I'm saying, no, no, I'm not going in there, I'm 16 not going in there. And, you know, I felt this way throughout 17 the semester. I didn't want to go any of my professor office 18 hours especially after first semester when I -- you know, I 19 had taken -- the normal approach for me would be if you have a 20 problem you go and talk to somebody about it, you know. I'm 21 not the sort of person that would normally sit there silent. 22 I would go and talk, but I did not have the experiences when I 23 did that. So by second semester, I wasn't willing to do it. 24 And this went -- you know, I was forced to interact with her, 25 but I did not want to go and see her after that. I felt like BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 41 1 I don't need this right before an exam. I don't need to have 2 somebody telling me I can't do this right before the exam. So 3 I was like oh, I'm not going to go. And they talked to me for 4 about an hour. And then I got convinced that, you know, you 5 have to go because I can't go into that exam feeling like I 6 can't do this, like I'm intimidated by the questions. So I was 7 like I need to go back -- I need to go into her office just 8 because I need to gain my power back, you now. Not that I 9 thought she was going to change and tell me substantive things 10 that I could do to perform better on her exam. But I just 11 needed to go there and gain my own personal power back so that 12 when I sit down to take that exam, I'm not coming from the 13 prospective I'm so intimidated by the question is that all I 14 can do is write a bad answer. 15 So I went to her office hours. And one of my 16 friends who is also a student was in her office already, and 17 she asked if it was okay if I come in. So I came in. I talked 18 to her about the comments. And, again, she verbalized what 19 she had written, are you intimidated by the question? And I 20 told her, no, I'm not intimidated by the question, you know. 21 I love this subject. I think it's great. I really understand 22 it. I have a real personal interest in this. And, no, I 23 never felt like I was intimidated by the question. So we're 24 talking, this other student is talking, and a third student 25 comes in, comes into the room, And when she comes in, the BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 42 1 professor asks her can I show your essay, your answers to the 2 questions to these two students still here, and the girl says, 3 yes. So she pulls out her essay, answers to question two and 4 question three, and let's me look at them. She starts talking 5 to the student about something else. And I look at the paper, 6 I think it was question two, on my paper this was the one 7 where I got the comments about being intimidated and she 8 didn't like the way I had organized my answer. I put some 9 headings and she felt like they should be in different spots. 10 And she had drawn these arrows all over my paper, you know, up 11 here, circle this, and, you know, my whole paper just had all 12 these ink marks all over it. And I looked at this other 13 girl's paper, she done exactly the same thing I had done. She 14 organized her stuff with these headings in the same order. 15 She had no arrows drawn on her paper. No line, no circles. 16 She had a little comment that said, maybe you should put this 17 at the end. 18 Q And what is the race of this student? 19 A She was white. And I was sitting there in the office, 20 and I'm looking at my paper, I'm looking at her paper, and I'm 21 going, I can't believe this, I can't believe this. 22 And so I didn't say anything again. This other 23 student who was here with me had a question that she needed 24 answered. 25 Q What was her race? BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 43 1 A She's Asian. I think she's Chinese, I'm not sure. Well, 2 I'm actually pretty sure. I think she's Chinese, yeah. 3 And she had a question, a substantive question, a 4 substantive law question, and she was asking the professor 5 this question. And the professor had moved back around to her 6 desk. So the professor turns to this third student, this 7 white student and tells this student to explain this area of 8 the law to us that she was going to search the Internet. And 9 she turns around to her computer and she searches the 10 Internet. And I actually already knew the answer to this 11 question, but I was the one asking it, so I didn't say 12 anything. But I'm sitting here thinking about, wow, this girl 13 must feel great. She's come in here to find out how she's 14 doing and the first thing the professor says to her is, let me 15 show your work to these poor little students sitting here. 16 And we're all in the same situation. She's on academic 17 counselling with us, you know. So it's not like she was, you 18 know the TA, or she was a third-year law student, she's in 19 exactly the same position as us. And so now her work is being 20 shown as, you know, the example work of how to do things, and 21 she's been there breaking it down to us. So she leaves and 22 she's feeling wonderful, you know, because she knows she knows 23 her stuff, and she's going to take exam in a week and she's 24 going to do great, I'm sure. This is what I'm thinking at the 25 time. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 44 1 We leave that meeting. And I sit with the other 2 student in the hallway for a half hour while she's crying, and 3 she's totally defeated. And she doesn't want to take the 4 exam. She's scared to death that she's going to do badly on 5 that exam. And that's the difference of what is going on at 6 that school. 7 That's what the end of affirmative action means, is 8 that the few minorities that do get in, are feeling defeated 9 the whole time. And the other students are feeling empowered. 10 And we're competing against each other because we're on a 11 curve. When we go into that classroom, and we take an exam, 12 we're competing against people who are feeling empowered, 13 people who are not carrying the burden of haven't we had a 14 protest, of having to worry about their classmates being 15 arrested, you know. That's who we're competing with. So, yes, 16 is my GPA effected by it? Sure, because I'm not setting the 17 curve in that class, someone else is. I'm just having to 18 compete against them. 19 Q You said you had felt very good about the community 20 property class, you felt very confident in that subject. 21 A Yes. 22 Q What happened when you took the exam? 23 A The exam was half multiple choice which was a change she 24 made this year. It was a closed book exam. It was half 25 multiple choice, it was half essay. I knew the subject. I BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 45 1 knew it so well. I know I knew it. I talked to students, you 2 know, the days before the exam. And I got to that multiple 3 choice, I could narrow it down to two, but I was confused 4 between the two. I didn't trust my instincts. And I found 5 myself going back, circling things in the fact pattern, you 6 know, is it this, is it this, and just going over it, and over 7 it, and over it. And at the time I was doing it, I didn't know 8 my pace was off. 9 But -- there was a problem with the exam. There was 10 a calculation that was further on in the exam, and one of the 11 numbers was incorrect. I guess students had realized it and 12 gone to the proctor and told the proctor. The proctor had 13 contacted the professor to find out what the correct figure 14 was. When the proctor came back to our exam room, and made 15 the announcement that the figure should be this, the classroom 16 exploded. People were so upset. They're yelling, they're 17 screaming. And I look up, I'm not to that section of the exam 18 it. I totally freak out because I think I'm not going to be 19 able to finish the exam because our exams, you know, their 20 race horses. If it's a three-hour, three-and-a-half hour, 21 four-hour exam, that's a race horse exam. And so I panicked 22 because I wasn't even there yet, and these people were already 23 done. So I had outlined my answer, you know, after I finished 24 the fact pattern, I had outlined my answer, I knew what I was 25 suppose to write about for the essay. But because I panicked BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 46 1 I skipped over a whole section that was valuable points to 2 just do the calculation. And I missed that and I ended up 3 with a bad grade in that class, my second worse grade -- well, 4 equally worse grade in law school. 5 Q And when you were taking that exam did you have in your 6 mind the conversations with the professor? 7 A Sure, I had that going in. You know, I had it the day 8 before when I was studying for the exam. Of course, I had it, 9 you know, while I was in there. I mean, you don't ever get rid 10 of it. You don't -- I don't walk away from UCLA and then I'm 11 back to my confident self. You don't -- it's with you the 12 whole time. And it's not just that professor. It's been 13 repeatedly shown to me that their confidence in me is just 14 nill, you know, and not just in me, but in, you know, 15 minorities, period. 16 Q What has the loss of numbers meant to the Black Law 17 Students' Association? 18 A Well, it meant that we almost didn't have it. First of 19 all, we lost the National Black Law Journal. I'm not on a 20 journal. We don't have -- and I could be on another one, but 21 they don't interest me. But we don't have a National Black Law 22 Journal. 23 Last year most of the student organizations -- at 24 UCLA, second year run the student organizations. In April is 25 when they have their elections for who is going to take over BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 47 1 and be the officers. April came along, Lena and I are looking 2 at each other, well, we don't need an election because there's 3 only two of us. 4 I guess we just -- I knew, I knew from first 5 semester, I remember one day -- the first time I attended the 6 Black Law Students' Association meeting, I remember walking 7 home hyperventilating because I thought, oh, my God, oh, my 8 God, I have to run this thing by myself next year because Lena 9 feels -- keep in mind, she's a single parent with two 10 children, age six and eight. She has to go home to her 11 children, and I understand that. So I have to carry a lot of 12 the burden of being places and speaking for our class because 13 she couldn't be there because she was with her children. So 14 in the back of my mind, I'm thinking, oh, my God, I have to do 15 this by myself. I can't do this by myself. I don't even want 16 to do this. When I came to the school, I never wanted to be a 17 leader of the Black Law Students, I wanted to be a member and 18 suppport a leader. No, I just wanted to be a law student. 19 And so April comes. Lena and I realize we have to 20 do this. But the people who are running it now don't want us 21 to do it. They want BLSA to die because they don't feel like 22 Lena and I can do it. And when they lost the National Black 23 Law Journal, it was -- it was sort of like this slow 24 unrecognized gap. It was just kind of like, we just don't 25 have enough people to do it any more. We don't have enough BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 48 1 people to write. We don't have enough to edit. We don't have 2 enough people. And they just sort of closed up the doors one 3 day, and I mean literally because I had to go in and clean 4 that office up. 5 It was pens sitting on a piece of paper, like this, 6 like this. It was like somebody just up from the desk that day 7 and they locked the door and they never opened it again. So 8 they didn't like that to happen with BLSA. This is a very 9 active group of people, and they wanted attention to the fact 10 that there weren't enough black students to warrant the Black 11 Law Students' Association. So they fought against that. They 12 really -- they did not want us to take it over. 13 But Lena and I felt like we've already lost so much, 14 you know, there's nothing there for us in terms of support. 15 And they would say to us, what do you have -- what can both of 16 you view that you can't get? Well, being -- having the Black 17 Law Students' Association opens doors that -- just being 18 Chrystal James doesn't open. Number one, it opens a 19 connection to the other Black Law Students' Associations in 20 Southern California which we really need because they have job 21 fairs. They have academic support teams. They have social 22 events. They have community. And we needed to have that. It 23 gave us a mail box. It gave us a phone number so that when 24 different events were going, there would be some way for 25 people to contact us. And we thought that we needed that. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 49 1 Plus, we thought we deserved it, you know. Every second year 2 has the opportunity run their student organization. And we 3 felt like we deserved to have that. That's the least we 4 deserve to have. And so we fought. 5 We didn't really have a faculty advisor who was real 6 supportive. What we found was a faculty advisor who said if 7 you want to do this -- I'm not telling you, you should, but if 8 you guys want to try and do it, then, you know, I will be your 9 faculty advisor. 10 And we have an annual solidarity dinner. And 11 fortunately we went to that dinner and our alumni were very 12 supportive and saying, don't let BLSA die, don't let BLSA die. 13 So Lena and I did, but we came very close to not even having 14 an official student organization. 15 And another fear for us is that if we let it go now, 16 it's very hard to get it back. And people were telling us 17 that. And so we struggled. And when we took it over, you 18 know, we realized that we're going to be very limited in what 19 we could do so we made basically two goals for the year. One 20 was to support any first years that came in because we didn't 21 have it. And the second was to try to develop our alumni 22 contact because we really have to depend so much on our alumni 23 now because we just don't have the student population any more 24 to do hardly anything. So we're requiring a lot more from our 25 alumni. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 50 1 Q From talking to other students, to other black students, 2 you got a sense of how the numbers had dropped. 3 A Yes. 4 Q And from those discussions what was your understanding of 5 the number of black students in the entire UCLA Law School in 6 1996? 7 A There were eighty students there. Eighty. And, in fact, 8 that was published on the Website. What BLSA had is a Website 9 which is a one-page text that had no links or anything. But 10 there were eighty students there in 1996. I was, like, eighty? 11 Eighty students? I can't imagine what it must be like to be 12 walking around at that law school with seventy-nine other black 13 students here. I mean, we have, what, like ten right now or 14 less than ten because people go off on externships and stuff 15 like that. And it was just incredible. I just -- and they tell 16 me -- you know, the other thing was the Black Law Students' 17 Association had -- I think, like, three years in a row, one an 18 award for their community service.l And that was another reason 19 why they wanted us to give it up because they didn't want to 20 see it diminish. It had been such a great positive and 21 effective organization, they didn't want to see it dwindle into 22 this nothingness, you know. So it was like -- I just couldn't 23 believe it. And the things they were able to do, the community 24 that they had there, that these students -- because the third 25 years had entered -- there were still two years, two classes BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 51 1 there, that were pre-209. And so they had the experience of 2 having lots of blacks there, lots of blacks feeing positive, 3 feeling optimistic, feeling powerful, feeling confident. They 4 experienced all of that. And they would talk to us about it. 5 It was incredible. I just -- I'm sorry I'm not having that. 6 I'm jealous. 7 Q Did BLSA normally have a graduation dinner? 8 A Yes, that's one of the responsibilities of the second 9 years who are in the organization is to give their third years 10 a graduation dinner -- or party -- a graduation celebration, 11 whatever they decide it should be. 12 Q And the year you graduate, is that a graduation dinner of 13 two? 14 A I believe it's going to be. There's a possibility it may 15 be three only because there is a student who's in our -- who is 16 a third -- she would be a third year now, but she had to take a 17 semester off because she had a baby. And I think she's going 18 to walk with us. She's not really our class. She didn't enter 19 with our class, but I think she's going to walk with us. But 20 who knows even whether she'll walk, but yeah -- I mean, 21 technically, yes, it will be a graduation of two. 22 Q And have you done anything to compensate for that? 23 A We haven't done anything for us because it will be -- it 24 will be the students that come behind us, that over. But for 25 our graduates, there are three who are graduating, who Lena and BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 52 1 I have the responsibility of giving them some sort of 2 graduation celebration. And we're just -- you know, we're 3 talking about it now this semester because it's coming up. And 4 it just seems so ridiculous to plan this big party for three 5 people. And so what we're doing is -- and actually one of the 6 third years suggested that we try to combine with LLSLO, the 7 Latino-Latino Student Law Organization and AIPLSA, which is the 8 Asian Island Pacific Law Students' Association so -- because 9 their numbers are down, too. And then AILSO, American Indian 10 Law Students' Organization, they have, like, one graduate. So 11 we're trying to combine together all of the third years so it 12 can at least seem like a party; otherwise, we could all get 13 together, five us, and go, yea, you made it. But we want it to 14 be a big celebration. It's a big accomplishment. And we want 15 it to be a big thing. So that's the way we're going to have to 16 do it is all of us get together so we can have, you know, have 17 more than three or four people there and have a big party. I 18 don't know what the details of it are going to be yet. We're 19 just starting to plan it. 20 Q How many black students were admitted your year? 21 A I believe eighteen. 22 Q And it was two -- three? 23 A Well, there's some question as to whether the third one 24 actually checked the box or not. So at least by the end of 25 first semester the official number was two. So, yeah, two to BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 53 1 three of us, or two and a half enrolled. 2 Q The fall in the numbers is really profound. 3 A Yes, it is. 4 Q I want to know if it's just a question of the numbers. 5 Had you had many experiences of being one black person in a sea 6 of white people before? 7 A Oh, sure. In my undergraduate, I've been in classes 8 where I was the only black. I've been in history classes where 9 we had to discuss slavery, the end of slavery, reconstruction, 10 civil rights. I've been -- most of my work situations, I've 11 been the only black. I had a career in banking. I was the 12 only black in the office. Even right before I went to law 13 school, and I worked in a legal department, and I was the only 14 back. No black attorneys in my area of the department, anyway. 15 And I was a legal assistant. I was the only black legal 16 assistant. There were no black attorneys. So I've been in many 17 situations. I grew up in a town where there was only one other 18 black family. 19 Q What is different about this? 20 A What's different is the way you're treated because of 21 being the only black. And in the past, in my experiences, I 22 always -- I always felt okay about it because I had people 23 encouraging me, people making me feel good for my 24 accomplishments, for my ability, for my skills, for my work 25 ethic. And here it's just the opposite. People have this BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 54 1 assumption already and they perceive to treat you based on that 2 assumption. It doesn't matter what you're doing. You know, 3 when I'm sitting in that classroom, especially the first few 4 weeks, those professors don't know, you know, what my abilities 5 are. They don't know my resume. They don't know what I've 6 done before I came to their classroom. They can probably look 7 at me and see that I'm an older student than the norm that's 8 sitting in that classroom. But they don't know what my 9 experience has been. But their assumption is still that I can't 10 answer their questions other than to relay the facts of the 11 case that I read last night. 12 Q And they assume that about you because you're black. 13 Q I believe so, yes, since I don't see it happening non 14 black students. 15 Q Were you political at all before you got to UCLA Law 16 School? 17 A No, no, I wasn't. I always felt like I was contributing 18 to African-Americans doing better by me doing better. By -- 19 you know, like I said I was in many, many situations where I 20 was the only black. And I felt like by performing well and 21 being a good person, that spoke to them, you know, all blacks 22 are not alike. We don't all think alike. We don't all look 23 alike. We don't all act alike. And -- you know, I would talk 24 to people about the fact that they hadn't been around a lot of 25 blacks before and they had different ideas and around me, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 55 1 changed some of their ideas. Or they would ask questions, or 2 whatever. So I always felt like I was adding just by being who 3 I was. And so I never really get engaged in any kind of 4 political activity. 5 Stanford, although there was -- there was some 6 activity about, you know, when 209 was going to hit the 7 ballot, there wasn't a lot of organized stuff on campus. And 8 I was away for one quarter, too. So I didn't get involved 9 there. And I never wanted to. 10 Again, going back -- I did not want to go to Boalt 11 because I did not want to be put in that position, you know. 12 Maybe if I was twenty-two years old and I was planning on 13 being a civil rights attorney, that would have been the 14 perfect environment for me, you know. But you know, I'm kind 15 of pass those years. And I just wanted to, you know, learn how 16 to be a lawyer. I wanted to be a corporate lawyer. So I did 17 not feel like being a political activist was going to be the 18 best route for me to incorporate all this. So, no, I was not 19 political. I was not planning on being political. 20 Q Did you find nonetheless that you had to take a stand at 21 UCLA? 22 A Definitely, definitely. You know, the fact that only two 23 enrolled made it a political situation. And when I got there, 24 the pressure's on you. I mean, there's two of you there. And 25 there are people that are upset about it other than you, and BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 56 1 they want to do something about it. They want you to do 2 something about it. I became -- Lena and I became the poster 3 children, literally. The poster children of the effect of the 4 end of affirmative action. I would go down the hallways when 5 there were rallies and protests and see poster that said, only 6 two African-Americans. There were songs made up, only two, 7 shame on you. People were chanting about me. People were 8 making posters about me. The statistics were all around. And 9 I remember going -- you know, the first big protest that was 10 planned, the organization that was planning it was having a 11 meeting. They needed people to help make signs. Now, I'm a 12 supporter. Like I said, I didn't go there planning to lead 13 anything. I'll support, you know, but I really just wanted to 14 focus on being a law student. So I said, well, I'll come in 15 and I'll help signs. So I was there painting signs. Even 16 though some of the signs were about me, you know, only two. 17 And then they started talking about we need speakers, we need 18 student speakers. And they said, we really need you to speak, 19 we really need you to talk about, you know, what's it like for 20 you to be here. And I didn't want to do it. I hate public 21 speaking. That's why I was really nervous, and you guys know 22 that I -- some of you know I did not want to come and do this 23 because I hate public speaking. So I didn't want to do it. 24 But they really were telling me, we really -- we need you to do 25 this. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 57 1 And then I felt like after having the signs and 2 hearing the songs, and that I needed to let people know that 3 there are human beings behind these statistics. These only 4 two? I'm one of those only two. I'm the one who comes here 5 and it's only one of two, and I needed people to see that. 6 And so when I did my -- when I spoke, when I wrote the speech, 7 I wasn't writing it, you know, oh, the policy this. I was 8 writing about what it's like to be one of two and walk the 9 hallways. 10 I'm not from LA. I had never even been to the UCLA 11 campus before the first day that I came to the summer program. 12 So I didn't have a car. So I had a gotten an apartment. I was 13 very close to campus. I knew I could get to school every day. 14 So I walked. And one of the things I ran into shortly 15 thereafter was the fact that I needed to get my hair done 16 because I put a relaxer in my hair, and I wanted to try to 17 keep my hair, so I decided I better not do it myself. There 18 was nobody out there for me to ask where can I go get my hair 19 done? You know, that's what I wrote about. In my speech I 20 wrote, you know, to some people, that might seem really 21 insignificant, like, oh, you can't get your hair done. But 22 when you're a first-year law student, and you're going through 23 all the pressures of first year, and your confidence is being 24 beaten anyway aside -- put race aside for a moment -- you're 25 sitting in that classroom, your first -- you know, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 58 1 introduction to Socratic method, you're trying to figure out a 2 case, cases from the 1800s. You know, your confidence takes a 3 beating. And one of the things that you can do is at least 4 try to keep your body healthy, and keep your spirit healthy. 5 And as a black woman, your hair is really important to you. 6 So I tried to convey to them how difficult it was to even 7 think that other people walked around taking for granted at 8 that school. They can walk to downtown Westwood and get their 9 hair done at any shop down there. I can't go into any of 10 those shops and get my hair done. Not because they wouldn't 11 allow a black person in, because they don't know how to take 12 care of my hair. They don't have the products, and they don't 13 have the training to take care of my hair. 14 And I was walking around that school with basically 15 a living helmet. My hair was (indicating) and there were ends 16 sticking out. And, you know, every morning, I'm looking in 17 the mirror, and that's my first thing, oh, my God, my hair is 18 crazy. There was no one there for me to ask. 19 Lena is -- she is half African-American, and she's 20 half Latina. She has totally different hair than I have. My 21 group of friends although they're very supportive and we have 22 study groups together, they're Latina, they're Asian, they 23 don't go to a black hair salon. I just couldn't even get my 24 hair done. 25 And that's what I talked about. I talked about BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 59 1 walking the hallways and being invisible to my classmates, 2 that they won't even say hello to me. I talked about not even 3 being able to find someone to tell me where can I get my hair 4 done, and then actually beg a ride off of them, too. So 5 that's what I spoke about. And I was really surprised by the 6 response. It really effected people. And I thought there 7 were so many other speakers there that were just great 8 speakers, and I was so nervous. I was shaking, and I remember 9 when I was done, somebody tried to hand me a glass of water, 10 and I couldn't hold the water to drink it. And I had to just 11 sit on the side for a few minutes and calm down enough to even 12 be able to drink the glass of water. 13 But after that, I had so many people send me 14 e-mails, come up to me in the hallways, you know, thank me for 15 speaking. White students, black students, Asian students, 16 everybody, faculty tell me how moving my speech was and how 17 much they appreciated it, and how much they appreciated being 18 made aware of it, you know. And up until last semester -- you 19 know, for a year, I still was getting e-mails and I remember I 20 was at a function in the library just last semester and a 21 librarian came up to me, and he said, you're the one that 22 spoke last year, aren't you? And I said, yeah. And he goes, 23 that was such a wonderful speech, I just want you to know. 24 So I don't know how or why or what, but forever 25 reason people were moved by it, and all I was talking about BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 60 1 was my experience there as a student. 2 Q Ms. James, are you more or less conscious of race and 3 racism now than you were before? 4 A Oh, I'm definitely more conscious of it, definitely. And 5 I don't feel like I was unaware of it before. But, you know, I 6 never get away from it. I never get away from it. 7 During the first year, when I was having lots of 8 problems, and my family couldn't understand because I never 9 had problems academically before. People would say, just 10 don't deal with it, don't get involved with it, don't get 11 involved. Some people. My mom wasn't one of them. But some 12 people would say, you know, just don't get involved. And they 13 didn't understand that you cannot not be involved. When you're 14 sitting in the classroom and you're experiencing that hostile 15 environment, how do you not be involved? How do you not be 16 involved by comments that are being made? How do you not be 17 involved with the fact that the professor is only asking you 18 about facts. How do you not be involved with the fact that 19 he's going down a row and you're next, and you're getting, you 20 know, a little tense, because you're saying, oh, gosh, I'm 21 going to be on call, and then he jumps to the row behind you. 22 How do you not be involved with that? How do you not be 23 involved when your classmates are taken over to the admissions 24 office and the police, the Los Angeles police are coming to 25 your campus to drag them off in handcuffs. How do you walk BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 61 1 away from that when they're doing it while they're chanting 2 songs about you, how do you walk away from that and say it 3 doesn't involve me, I don't have to deal with it. You never 4 get away from it. 5 So, yeah, I'm much more conscious because before I 6 came here, I was able to go to school, I was able to go to 7 work, and I was able to be Chrystal James. Yes, I was always 8 black woman, Chrystal James, but I was judged on my 9 performance whether it be academic or whether it be my work 10 performance I thought. I always felt that I was being judged 11 on that first, you know. I don't ever feel like anybody 12 didn't see me as being black, or didn't see me as being a 13 woman, but they saw me for what I was doing. And I come here, 14 and I am always -- first of all, I was one of two before 15 people knew what my name was, I was one of two. And it wasn't 16 until I decided to let you know what my name is that they even 17 knew that. But I'm always still one of the few black students 18 at UCLA, and I never get away from that. 19 Q Do you feel that there are others in the school who have 20 tried to make you feel like a poster child for the end of 21 affirmative action? 22 A Yeah, yeah. I don't know if that was their intention. I 23 think that's the fact, you know, what are going to make posters 24 about. And, you know, these people were people who were on my 25 side. These are people who want to change that. They don't BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 62 1 want it to be that there are only two African-Americans in any 2 entering class at the law school. So their intentions I think 3 were good. But, again, it's so prevalent on that campus that 4 people don't really realize the impact of being one of two. 5 And so they're making the posters, they're making the songs, I 6 mean, this is what you do for a protest. It became that, you 7 know. It just is that. And I just was the poster child. It 8 was most -- we were just the most obvious, the impact on the 9 numbers. I mean, two, two. 10 The Native American -- I don't know -- and then that 11 person was on the posters, too. But I don't why it didn't -- 12 again, I think it's just that, you know, in our history, it's 13 always been most extreme between black and white. So it tends 14 to -- lots of things tend to focus on black. So, yeah, I was 15 the poster child. 16 And it's for the administration, too. You know, 17 that they made posters or anything, but when the Dean would 18 speak, you know, the statistics always come up, and he's 19 defending the policy, he's defending the statistics. So, you 20 know, yeah, we were, we were definitely the poster children 21 for that. 22 Q And were there others who were not on your side? 23 A There are others that are not -- they don't organize and 24 they don't protest, but then they don't really have to because 25 they control the classrooms. So their strength and their power BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 63 1 come across every day when I'm sitting in that classroom. They 2 don't need to organize and to protest. They're not the 3 minority there. 4 Q When you entered UCLA Law, did you want to pursue an MBA? 5 A I did, yeah. 6 Q If you were to decide to pursue it, would you attend a UC 7 law school -- a UC MBA Law? 8 A No. 9 Q Where would you go? 10 A Not in the UC system. No, I would not. 11 Q Thank you for bailing me out. 12 Is that because of the impact against affirmative 13 action on your education? 14 A Yes, yes, and I will not risk putting myself in this 15 situation again. 16 Q Ms. James, are you able to be an individual in this now 17 purported color blind law school? 18 A Well, I am an individual, but -- am I perceived as an 19 individual? Maybe only by my friends, but, no, I don't think 20 that, no, I don't get to just be an individual law student. I'm 21 always walking with a badge of one of two African-American 22 students in UCLA Law School. I don't -- yeah, I don't feel 23 like I get to just be an individual. I have a lot of burdens 24 that my classmates don't have. 25 Q Are you treated like you're qualified to be there? BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 64 1 A No, no. 2 Q Do you enter the law school and feel like you have the 3 privilege of being judged as an individual today? 4 A I can't say like one hundred percent. Is it more than 5 last year? Yeah, because there were five African-Americans 6 that came in the first year. So the spotlight is off of me. 7 But, no, I still -- I mean, it's a difficult question to answer 8 because so much of what I have to do doesn't allow me to just 9 be an individual. You know, I have to continuously support my 10 first years which means, you know, having them in the bathroom 11 crying. Trying to get them to go to class and, therefore, 12 cutting their classes. I have to interact with the 13 administration over any type of racist event that happened. So, 14 no, I don't think people perceive me that way. I think people 15 perceive me as this activist now. So when I walk onto the law 16 school, I -- I don't know what the first years think, but I 17 definitely know what my own classmates in my class think of me, 18 you know, and I don't think they think of me as just an 19 individual. 20 Q What has the lost of affirmative action meant to your 21 sense of freedom? 22 A Well, to some extent it's sort of taking it away because 23 I felt when I entered law school like I had the world ahead of, 24 you know. I didn't except to go and do badly academically. So 25 I'm assuming I'm going to, I've got a great background behind BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 65 1 me, a great undergraduate, a great work experience. The world 2 was opened for me. And now having been there, aside from 3 feeling like I was just confined to hell -- I don't even know 4 if I have any possibilities. Sure, I have some. I have some, 5 but they're very limited. They're very limited. It's very 6 restrictive now on what I'm going to be able to do in terms of 7 how I originally planned and what I would want to do. I mean, 8 certainly I can go somewhere and try to work there for ten 9 years to do something. But it's just -- it's very limited now. 10 And part of that is, is that, you know, along with your 11 confidence, losing your confidence, losing your power, you lose 12 your creativity. You have to be kind of positive to be 13 creative. There's problem solving when you're stressed, but to 14 really be creative, you have to have like a positive good 15 feeling about yourself. And I don't have that any more. And 16 so maybe I should be coming up with some other alternative 17 plans. But I'll tell you for ten years basically the plan was 18 to go to school, you know -- at some point it shifted, okay, 19 I'm going to go to law school, and I'm going to do this. But 20 at least for -- for five or six years before I went to law 21 school, the plan was go to law school, do well, go to MBA 22 school, do well, have this degree, go off and do public finance 23 in developing countries. I didn't doubt it before coming to 24 UCLA. So I didn't make a Plan B. There was only Plan A, and I 25 didn't make a Plan B. And now, I don't have a Plan B. And I BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 66 1 don't really have the confidence and the inspiration and all of 2 that to come up with Plan B. So now I'm trying to come up with 3 Plan B. 4 But in terms of my freedom, you know, it's limited 5 in a lot of ways, a lot of ways. I don't have the freedom to 6 pursue different firms. I don't have the freedom to, you 7 know, oh, I'm going to do this journal, I'm going to do that. 8 I don't -- you don't even know all the freedoms that I don't 9 have because a lot of it was gone before I got there. 10 Q Do you feel safe on campus? 11 A Pretty much I feel safe. The only time I didn't feel 12 safe was when I to support that group first semester in making 13 the poster, they do thing called chalking which I really didn't 14 know about it. But it's just when you go to the undergraduate 15 portion and you write on the sidewalk, on the stairs, wherever 16 you can, that there's going to be a rally. And it was to let 17 the undergraduates know that there's going to be a protest at 18 this law school. 19 And so where I lived, I lived one side of campus 20 which was the opposite side of the law school. So I offered 21 to chalk on my way because I just walked to class. I said, 22 well, I'll chalk in the morning. And I was told by these 23 third-year students that, no, we don't want you out there 24 chalking, this kind of stuff by yourself. That was the only 25 time that I felt that, you know, I was maybe not -- I was in BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 67 1 danger. 2 And later on -- I think it was in spring semester 3 last year, we had a -- AIPLSO had to get to speaker time, a 4 Black Panther who's half African-American, half Asian. So the 5 organization brought him to campus. And I sat and listened to 6 him for awhile because I had to go to class so I missed the 7 last part of it. But he was speaking about two 8 African-American students who were part of the -- towards the 9 end of the Black Panther party who were student members of it, 10 who were killed on the UCLA campus. I didn't know anything 11 about that, and they were fighting for affirmative action. 12 Probably not in the sense of what we -- you know, as we define 13 it as today, but whatever it was. And I guess they were 14 killed by two brothers who -- I don't know all the details of 15 their case, but I never heard of it before. And I remember 16 walking home that night, and it was dark, and I was walking 17 the campus and I thought about, gosh, we haven't come very 18 far. We haven't come very far that those two black students 19 were killed on that campus, and here I am one of two walking 20 home in the dark, being warned, don't chalk by yourself. You 21 know, it's what, thirty-four years, and we're almost right 22 back in the same situation again. 23 Q Have you participated in an effort to try to increase the 24 numbers of minority students? 25 A I didn't the first year. I stay away from recruiting. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 68 1 They ask you to do things like attend undergraduate events 2 where you can talk to students of color. They ask you to call 3 any admits and try to convince them to come to UCLA, And I 4 couldn't do it. I could not -- I could not take the risk of 5 encouraging someone to come to that campus and experience what 6 I was going through and have them drop out. I almost dropped 7 out twice. I'm a much older person. I've been through a lot 8 more. And I just couldn't -- I could not take on as my, you 9 know, my responsibility. I don't know what that would have 10 done to me, if I were to convince another black student to come 11 to that school and have them drop out. I would much rather see 12 them go to another school and succeed and become a lawyer than 13 have them come there and drop out of law school period. And I 14 don't think that was a crazy thought, because I was going to 15 drop out. Lena would have dropped out if I dropped out. 16 And so -- but at the same time, you know, I realized 17 we need to get the numbers up to change the situation. And so 18 I didn't want to harm it either. So I just stayed away from 19 it. 20 But this year when I decided to take the 21 responsibility on to be a co-chair of BLSA, I realized that 22 part of that responsibility is recruitment. So I've struggled 23 really hard this year to find a balance between -- I need to 24 encourage students of color to come here, but I also need to 25 make them aware of the situation because I don't want them to BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 69 1 come in unarmed. And I don't want them to face the shock 2 because a good part of what happened to me first year was just 3 dealing with the shock of this, oh, my God, I am really in 4 this situation. I cannot believe it. I'm in the Eric Brooks 5 situation. It took a while for that to really sink in. But, 6 oh, my God, I'm really in this situation. 7 So, once I got over the shock, then I started 8 preparing myself to deal with it. And I want to now make sure 9 that people don't go through that. So I do. I encourage them 10 to come. You know, I want you to come. But I want you to 11 come aware and prepared because it is not easy. It is an 12 extra burden that you take on, and it can effect your GPA, 13 which can effect your future. 14 Q Have you joined a faculty committee? 15 A I have. I'm on the admissions committee. 16 Q And what have your experiences been like on this? 17 A Well, we have only met officially on -- once, last week. 18 But prior to that, because I was a member of that committee, I 19 was allowed to attend a couple of faculty meetings. And the 20 faculty was meeting regarding the approval or the rejection of 21 some changes that are being -- that were proposed by another 22 committee made up of faculty members and student members, to 23 the admissions policy. And I was able to sit in and listen to 24 the discussions go on, and I was actually there for the vote 25 even though it was a secret ballot vote. So I don't know who BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 70 1 voted for what. 2 But -- so I was privy to having faculty feel I guess 3 more comfortable to express their true feelings about having 4 not that many minorities, and also changing the policy to 5 hopefully gain more minorities. 6 And just to make a long story short, I found myself 7 a year and a half later experiencing that same sort of emotion 8 that I experienced in my constitutional law class. And that 9 was, after hearing comments from professors saying things 10 like, what difference is it going to make to have two more 11 African-Americans? Or you know, do we really want to lower 12 our standards just to get two more blacks? 13 I found myself sitting there again, feeling like, I 14 need to speak. I need to tell them, do you want to know what 15 the difference is having two more African-Americans? Well, 16 having one more African-American for Lena meant that she 17 stayed in law school, and hopefully she'll become a lawyer, 18 and she'll be able to give her kids a better life. That's 19 what one meant to her. 20 So how anyone say what two is going to mean, you 21 know? Maybe that second person coming is going to be the 22 person that really makes it better for me, makes it easier for 23 me, makes it easier for someone else. Who knows. 24 But I felt like I needed to say something, but here 25 I am again, sitting at this table, heart is pounding, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 71 1 pounding, pounding. Mind is throbbing. Again, I don't hear 2 what's going on. I can't hear the continued exchange that 3 happens after that. And that another student, a white student 4 who has been very active in the organization that's fighting 5 for the repeal of SP 1 and SP 2, you know, they need to speak, 6 they need to speak. And I want to speak, but I don't that it's 7 going to do any good. And my fear is that I sat here now for 8 almost ten hours because we had to meet twice, and it's four 9 to five hours each time, listening to these faculty, number 10 one, come from the prospective that they cannot -- there would 11 not being any minority students at UCLA even now or in the 12 future that are qualified enough to meet UCLA standards. 13 So I already know where they're coming from. And I 14 know what their thoughts are about students of color. I don't 15 want to stand up and come from an emotional stand and have 16 them look at me and, go, that's exactly why we don't want to 17 get more of you in here. So that was my fear that I would 18 stand up and I would confirm the stereotype that they already 19 expressed that they were holding. And so I didn't. 20 And so I leave that meeting, and I thought I was 21 okay. I go out into the hallway and thankfully the changes -- 22 the report was approved. The faculty approved it. Thank God, 23 because I don't know how I would feel if they hadn't approved 24 it. And I would have been carrying the burden, like, maybe if 25 I would have just said something. Maybe I could have swayed BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 72 1 that one faculty member, who knows. 2 But anyways I come out into the hallway, I'm 3 relieved of the fact that it was approved. And I'm talking to 4 a professor out there, and I'm telling him about how bad I 5 feel about the fact that I didn't speak. 6 And I go into the bathroom and it just all comes 7 back. And I'm in the bathroom crying again. And I don't -- I 8 really don't -- I know I've broken down a couple of times 9 here, but I don't really cry in public very much. I try to 10 keep a very composed attitude. 11 And I come out and I go into one of my professor's 12 offices and I explain to him because I felt like he had 13 responded to that comment about what difference does it make 14 to have two more African-American students. And he said maybe 15 we need to ask African-American students on campus what 16 difference does it make. And I felt that was an invitation 17 for me to speak, but I still couldn't find the strength to do 18 it. So I went in to at least acknowledge to him, you know, 19 I'm aware of what you were doing, but I'm sorry, I couldn't do 20 it. And, again, it's this feeling guilt and shame because you 21 have people fighting, and you feel like you have to do it, 22 too. So every time you don't do it, you feel like you're 23 letting everybody down. And I just carried that with me. 24 And I couldn't believe like a year and a half later 25 I'm still feeling this. I'm still feeling it. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 73 1 Q We were talking about the curve earlier. Do you think 2 there's a view that prevails in the law school about the role 3 of minority students with respect to that curve? 4 A Yes, I think that the perception is that we're there to 5 fill out the bottom of the curve. And I think that the 6 admittance of minorities is tolerated to the extent that we can 7 fill out the bottom of the curve. 8 Q Have ever in your life felt racist stigma like this 9 before? 10 A No, never, never. I mean, I certainly can recognize 11 events that happened on TV, but personally experiencing it, no, 12 never. 13 Q Are you angry? 14 A Yes, I'm very angry. I'm -- it's really -- it's sad in a 15 way because there are people who have only known me since I've 16 been at UCLA. And they know me as this angry, defeated, 17 weak-feeling person. And I feel so bad -- I was such a 18 different person before I came, you know. And I tell them all 19 the time, I wish you could have known me two years ago. 20 But, yeah, I'm angry at so many different things. 21 I'm angry at a faculty that can either be -- and I think it 22 runs the spectrum from being ignorant to the environment, to 23 being, you know, I just don't care about the environment. 24 I'm angry at an administration that doesn't fully 25 commit to some of the things they're saying, you now, they're BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 74 1 talking a good game, but they don't back up their actions. 2 I'm angry at students. I'm angry at students that 3 can sit in a classroom and ridicule people for the way that 4 they look, or for what race they are, and knowing nothing 5 about those students. 6 I'm angry with my friends because some of the things 7 that I suspected first year, my friends were talking me out of 8 it. And it's that I don't think they had bad intentions, but 9 they're young, and they don't know, and they were new to the 10 situation just like I was. 11 And I'm angry at myself. I'm angry because I didn't 12 trust my instincts. And I'm angry because I wasted so much 13 time last year, so much time blaming myself for everything 14 that was going on. So much energy. So much time and energy 15 was just wasted. And, you know, you get angry. 16 So, yes, I'm angry. All of the time, I'm angry. 17 Q Do you bring a message with you from California? 18 A I do. I had so many people that they came up to me and -- 19 most importantly Lena who said, Chrystal you go there and you 20 tell them, you tell them what's like. Even now I feel like I 21 carry the burden. I carry the burden of everybody back there 22 who's fighting, who's struggling. I'm here to speak for them. 23 And I had faculty members, you know, just go and tell your 24 story, tell your story, let people know. Because one of the 25 things that we found out last year is that people aren't aware. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 75 1 Our own alumni did know what the numbers were. Did not know 2 the experience that Lena and I were having. And so I -- the 3 message that I bring is that it's bad, it's bad, and it needs 4 to be changed, and we need to do the right thing. The effect 5 is bad. It's bad for everyone. It's not just bad for people 6 of color. It's bad for the other students there, too. They are 7 experiencing a bad situation as well. And so, yeah, I'm hear to 8 speak for everybody in that, you know, don't let it happen 9 here. Don't let what happened in California happen here. 10 MS. MASLEY: I have no more questions. 11 THE COURT: If you can do your examination before we 12 take our break, that would be great. 13 MR. PAYTON Actually, I'm just going to thank her 14 for coming. I think that what came through besides these 15 terrible truths was enormous courage, and I think you for 16 coming. 17 THE WITNESS: Thank you. 18 THE COURT: Plaintiff have any questions? 19 MR. RICHTER: We don't have any questions, your 20 Honor. 21 THE COURT: Ms. James, thank you for coming. We 22 appreciate you coming. 23 We'll stand in recess. I have a couple of sentences. 24 We'll stand in recess. 25 (Court recessed, 11:00 a.m.) BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 76 1 (Court reconvened, 11:35 a.m.) 2 THE COURT: Okay, next witness. 3 MS. MASSIE: We call Professor Walter Allen. 4 THE COURT: Professor Allen, please step forward to 5 be sworn in. 6 W A L T E R A L L E N , 7 being first duly sworn by the Court to tell the truth, was examined 8 and testified upon his oath as follows: 9 DIRECT EXAMINATION 10 BY MS. MASSIE: 11 Q Hello. 12 A Good morning. 13 Q Where do you work? 14 A I'm employed at the University of California Los Angeles, 15 in the Department of Sociology and full professor. 16 Q How long have you been at UCLA? 17 A I've been working at UCLA since 1989. 18 Q And where did you work before that? 19 A Prior to the University of California Los Angeles was I 20 employed at the University of Michigan Ann Arbor. 21 Q For how long? 22 A Worked at Michigan Ann Arbor from 1979, through 1989. 23 Q And how about before that? 24 A The very first job of my career was at the University of 25 North Carolina, Chapel Hill. Employed there from 1974, through BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 77 1 1979. 2 Q Tell us what you job responsibilities for each of those 3 three institutions. 4 A Okay, at the -- I'll begin with the most recent 5 employment. University of California Los Angeles, as I've said 6 I'm a professor of Sociology, and have an affiliation with the 7 Center for African-American Studies. In that role, I teach and 8 advise both graduate and undergraduate students. I've have 9 various sundry administrative responsibilities as well. 10 At the University of Michigan, my appointment was in 11 sociology at the Center for African and African-American 12 Studies. Beginning my job at Michigan as an assistant 13 professor, and by the time I left I had been promoted to the 14 rank of full professor. 15 At Michigan, once more, the responsibilities were 16 those of a professor, teaching the undergraduate and graduate 17 students, advising, conducting my research, and fulfilling 18 various administrative responsibilities. 19 And similarly at the University of North Carolina 20 Chapel Hill, that being as I said the first job out of 21 graduate school, I worked as a professor teaching 22 undergraduates, teaching graduate students, and advising both 23 categories of students. I should say involved with the 24 advising of graduate students. That involves with those 25 students in close training and mentoring relationship, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 78 1 directing their MA theses, directing the Ph.D. dissertations 2 and, of course, doing related research. 3 Q What are your specialty fields? 4 A My speciality fields are sociology of education, race and 5 inequality in America sociology of the family. And I did work 6 on sociology and quality of life which focuses on health, 7 economic relationships, and what have you. 8 Q In that connection, have you done anything in that 9 connection at UCLA? 10 A In terms of the latter area? Yes, I have quite a bit, 11 actually. 12 For a time I was associate director for the Robert 13 Wood Johnson Clinical Scholars Program which is a national 14 highly regarded program for post-graduate training for 15 physicians where physicians come into the program and are 16 trained in research and methodology, are trained in public 17 policy with an eye toward equipping them to shape and 18 influence national health policy. 19 I've had research projects in the area, too, but I'm 20 not sure you want me to elaborate upon those. 21 Q No, that's okay. 22 If you could tell us about your -- where your 23 research has focused over the years. 24 A My research focus has been under a broad umbrella, and 25 that broad umbrella has been concerned with race, and other BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 79 1 forms -- race and inequality in America generally. And then as 2 a consequence of undertaking such work, the focus looks -- 3 brings to focus my attention on other sources of inequality in 4 this country. So I do some work on gender and the difference 5 it makes for inequality in the society. Class differences. And 6 race and ethnicity broadly and beyond a focus on 7 African-Americans which has been the core of my work, but I 8 have been drawn to focus on the status of Latinas and Latinos, 9 the status of Asian American -- and along those lines. 10 So that has been generally the substantive content 11 of my work. And the methodology has been broad and 12 multi-focused intentionally so. So my original training was 13 that of a demographer and POP studies. For persons who know 14 the area, it was highly statistical and quantitive and heavy 15 in that area. 16 And subsequently the expertise was expanded to 17 include the other research methodologies: Survey research, 18 qualitative research, engaging focus groups and life history, 19 and all with an eye in trying to understand what our 20 admittedly complex issues in this society and the admittedly 21 contrast relationships between race, status and inequality of 22 the society. And that multi-method strategy simply being one 23 who has allowed me to look at the questions from a variety of 24 prospectives because one of the methodologies provides its own 25 strength and limitations. So there are only certain answers BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 80 1 you can get from each methodology. And I wanted to have this 2 comprehensive answer as possible so, thus, I wanted to have 3 those questions addressed and answered from the prospective of 4 aggregate statistics. I wanted to have those questions 5 addressed and answered from the prospective of survey data, 6 that is, the questionnaires that most people associate with, 7 social science based research. And further, I wanted to have 8 those questions addressed and answered from the lived 9 experiences of individuals who are in those categories. And 10 you only get that kind of information from say a focus group 11 which a group directed interview around set subjects, or from 12 a very intensive analysis of live history looking at a 13 person's trajectory over time, and understanding the range of 14 factors at various levels that shaped that person's life and 15 life outcomes. 16 Q So your work in sociology, as a group you work for 17 various publications, I understand as a dissertation 18 supervisor, and all of that, it encompasses different 19 methodologies? 20 A Very much, so, that's true. 21 Q Tell us about some of the honors you've received, 22 Professor Allen. 23 A They are, as you know, listed the CV, but I'll highlight 24 a few of them. 25 I'm a member of the Sociological Research BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 81 1 Association. That's an elected membership to an honorary 2 association, a national association of sociologists. At any 3 given time there are fifteen to twenty thousand practicing 4 sociologists. The membership for SRA, the Sociological 5 Research Association, is restricted to one hundred and fifty 6 sociologists, living sociologists I should say. I might have 7 a tougher time getting in. You've got to live the whole 8 history of ranges. But there are a hundred and fifty of us 9 who are members, I think privileged and honored to be members, 10 to have been elected into that membership. 11 I've received citations and awards for my research 12 from the American Educational Research Association. From -- 13 I've been elected president of the Association of Black 14 Sociologists. 15 I stood for the presidency of the American 16 Sociological Association which has a membership of fifteen 17 thousand. I did not win that election, but I'm fond of saying 18 I took second. Normally the way it works is that the 19 nominating committee chooses from, once again, the full range 20 of all sociologists in the country, two people to run for the 21 office. So that was an honor in and of itself. 22 Actually, would have to look at the list if I were 23 to continue to -- 24 Q No, that's fine. I just wanted to get some highlights., 25 and as you said all the rest are contained in your CV. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 82 1 Do you currently have any research grants? 2 A I do. I am presently co-director and listed as principal 3 investigator for a study of student access to higher education 4 in the state of California. That's a one-million dollar grant 5 from the Andrew Mellon Foundation. And what we are trying to 6 understand is pathways of success for under-represented 7 students in higher education in the state of California. 8 I also have a grant from the W. K. Kellogg 9 Foundation here in Michigan as a follow up to an evaluation of 10 their thirty-five million dollar African-American men and boys 11 in Michigan. I was part of that evaluation team and 12 co-director, and co-PI for that particular grant. 13 And essentially what we were charged to do -- 14 Q What's a PI, I'm sorry. 15 A I'm sorry. Principal investigator. 16 Q Please continue. 17 A And we were called upon to just evaluate the 18 effectiveness of the various programs that were concerned with 19 improving outcomes for African-American men and boys in this 20 country. And that group having been defined and identified as 21 a group that considerable risk in all areas or various areas of 22 American life in terms of education, in terms of the criminal 23 justice system, in terms of full participating roles as 24 citizens, performing their family roles and what have you. 25 So that first piece of engagement had to do with BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 83 1 simply looking at programs around the country, some of which 2 are quite well-known, Boys Choir of Harlem, Pinewood Country 3 Day School, and so on. 4 We completed that evaluation and then went to the 5 foundation and were successful in selling them on the idea of 6 a next step, that is, having learned these lessons about what 7 works in terms of improving outcomes for African-American 8 males, how could we now equate those procedures and put them 9 in a form where the model could be -- first of all, 10 demonstrated, and then exported to others who were interested 11 in having systematic tools for changing outcomes for 12 African-American men and boys. So those are the two major 13 projects that I currently have funded. 14 I've just completed a funded project of three 15 million plus from the National Institute on Aging that had as 16 its focus the health status of African-American elderly. And 17 most of my research in engaging with a team of scholars, each 18 of whom brought different strength, skills, and prospectives 19 to bear. 20 Q You have a number of publications. I won't take you 21 through those at great length. But your recent publications 22 are listed in your CV. You've published widely in peer review 23 journals in all of the areas you've told us were your 24 specialties; is that right? 25 A That's correct. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 84 1 Q Tell us about your prior testimony as an expert -- I'm 2 sorry, in other matters. 3 A My testimony previously as a court-approved expert, has 4 been largely in cases involving aspects of desegregation and 5 diversity in higher education. I came to be involved in those 6 cases by virtue of the research that I had been, and because of 7 my sort of substantive and methodological expertise. Those 8 cases include the Ayers case in Mississippi which eventually 9 made its way to the Supreme Court. 10 I have been involved with the Knight case in 11 Alabama. I have done work with the Department of Justice as a 12 court expert in Tennessee. 13 I was a court expert for the Podberesky case in 14 Maryland. And am currently working with a group of attorneys 15 in the Cotin Yada (sp) which had previously been the Rios case 16 in California. 17 Q What's that case about? 18 A The last case, Rios and later Cotin Yada versus the UC 19 Board of Regents is a case brought by those plaintiffs on 20 behalf of a class of African-American, Chicano-Latino students 21 arguing that they have been denied equal educational 22 opportunity and access as a result of the implementation of 23 Proposition 209. And Proposition 209, of course, was the 24 anti-affirmative action legislation that followed on the heels 25 of decisions by the UC Board of Regents in SP1 and 2, SP2, that BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 85 1 essentially said -- that banned the university from continuing 2 to participate in affirmative action activities related to the 3 recruitment and admission of students of color, or students of 4 under-represented racial groups. 5 Q As an expert you said you had been retained by the DO -- 6 Department of Justice, several times? 7 A Yes. 8 Q Have you worked for other parties as well? 9 A I have. In Alabama, I was actually retained by Alabama 10 A&M University. And the Podberesky case, I was retained by the 11 state of Maryland and the University of Maryland. Retained in 12 one instance by a private plaintiff in the Garrett case in 13 California where a scholar successfully sued Clairmont Colleges 14 for racial discrimination in his tenure case. 15 MS. MASSIE: Judge, I would ask that Professor Allen 16 be certified by the Court as an expert in race and education? 17 THE COURT: I would imagine no one has any objection 18 to that. Plaintiff? 19 MR. KOLBO: We have no objection at all. We may 20 have some as questions come up, your Honor. 21 THE COURT: Oh, I understand. As to his 22 qualifications, we'll certainly accept him as an expert. 23 BY MS. MASSIE: 24 Q Professor Allen, I'm going to start by asking you to tell 25 us about findings in research that's been done broadly over the BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 86 1 last couple of decades on race and higher education. It's a 2 very, very broad topic. I would like to start by asking you 3 about research that's been by you and also by other people on 4 the status of black students in higher education. 5 A As you point there is a sizeable body of research on the 6 status of black students in higher education, their outcome in 7 higher education, and related questions. And I have been able 8 to contribute the literature. 9 Broadly the findings have been as follows: First, 10 that research and those research findings conducted in various 11 settings, conducted over time, conducted using multiple 12 methodology by a wide range of researchers has been consistent 13 in its demonstration of a persistent under-representation of 14 African-American students in US higher education, historical 15 and chronic under-representation if you will. Further that 16 research has in many of its aspects demonstrated that 17 African-American students on historically white campuses, 18 predominantly white campuses, report experiences of those 19 campuses as being racially hostile, as being environments that 20 communicated to them that they were interlopers, or aliens or 21 not welcomed on the campuses. 22 So this research has demonstrated that many of the 23 -- has demonstrated that the connection between the chronic 24 under-representation of black students on these campuses and 25 in higher education nationally is very much tied up in a set BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 87 1 of structural-interpersonal barriers that confront these 2 students in those instances where they are either trying to 3 apply for application to the school, or they're trying to 4 successfully complete their educational program after having 5 been admitted to schools, or they're trying to further their 6 education after having successfully graduated, and have 7 desires to onto the graduate and professional school. 8 So what comes through very clearly is a picture of 9 the educational experiences for African-American students as 10 being deprived, and as being disadvantaged in the early K 11 through 12 years that predict who goes onto higher education 12 in the subsequent years in terms of the experiences of those 13 students after they move into the undergraduate years, and 14 after they move into graduate and professional school. 15 A corollary area of research has made comparisons 16 between the experiences of black students at predominantly 17 white schools and on historically black colleges and 18 universities. And that research demonstrates very decided 19 differences in terms of the experiences that black students 20 report from the campuses and, indeed, in terms of their 21 academic outcomes. And that research explicitly ties those 22 differences back to differences in the levels of hostility and 23 support on predominantly white campuses which tend to be very 24 minimal versus the situation on historically black campuses 25 and universities. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 88 1 So in a nutshell what we see is a troubled history 2 of African-American students in higher education in terms of 3 access, and in terms of success. And the literature 4 demonstrates conclusively, persuasively, definitely, that 5 those negative outcomes are larger than and are not explained 6 by simple attribution to personal failure, or lack of personal 7 motivation because consistently what we see is students who 8 are defeated, who are discouraged not by virtue of a personal 9 failing, or lack of motivation of lack of sufficient 10 intelligence, but rather by structures and habits some of 11 which are more covert and actually I've come to understand as 12 being unconscious, but nevertheless devastating for those 13 students in the sense of just saying to them you don't belong 14 here, you're not competent, and then translating very often 15 into behaviours aimed at fulfilling that prophecy on the parts 16 of people in positions of power, professor, administrators and 17 fellow students. 18 Q In aggregate quantitative terms what's the impact of the 19 phenomenon you're describing on black college students? 20 A In very aggregate quantitative terms the impact is one 21 that translates into a diminishment of black representation, 22 some black under-representation in higher education, and lower 23 levels of success in terms of the -- and often lower levels of 24 success in terms of the accepted indicators of academic 25 success. And that would be grades, and the test score BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 89 1 performance and what have you. 2 Q How about graduation rates? 3 A Graduation rates as well, yes. 4 Q Have there been changes over the course of your career 5 and over the course -- when people have been researching this 6 area, have there been changes in race of access and success to 7 your -- 8 A Very definitely so. I co-authored a book with a 9 colleague Ralph Farley at the University of Michigan were we 10 simply looked at the status of African-Americans in American 11 society, and looking at the country as a whole using census 12 data from 1980. And the conclusion in that book which was 13 titled, "Race and the Quality of Life in America," was a very 14 simple one, that, indeed, there had been progress in terms of 15 the status of African-Americans in this country. But that 16 ultimately that progress was too little and too late and, in 17 fact, served mostly to highlight how much further there still 18 was to go in order to create a situation of equality between 19 the races in this country. 20 Now, that's the general backdrop. When we look at 21 the pattern of black participation in higher education in this 22 country, what we see are ebbs and flows. We see these high 23 points and these low ones. And those high points are very 24 much tied to moments when the country determined that this was 25 wrong, it was unfair, and then the resources and a social will BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 90 1 and commitment were brought to bear with an eye toward 2 improving the circumstances of black Americans and other 3 groups educationally, but any improvements for 4 African-Americans had very clear repercussions and advantages 5 for other groups. 6 So at that critical moment, by the way, that brought 7 me into higher education when Johnson declared his "great 8 society," when the society made available resources for 9 funding the continued education of people like myself from the 10 projects in Kansas City, Missouri. But there was money 11 available. There was a national will very much in place that 12 said we are going to create these opportunities. We are going 13 to go out and find individuals who have the promise and the 14 will, and the ability to take advantage of them, and will we 15 support those individuals. 16 So that was the high point. And at that high point 17 you look at the numbers from the University of California, you 18 look at the numbers from the University of Michigan, they were 19 just incredible. I mean they were just an incredible powerful 20 reputation of that previous era that said, well, we can't find 21 people, they're not available, they're not qualified. And at 22 that moment when the institutional will shifted and resources 23 were available, all of sudden there was just an explosion, a 24 literal explosion of opportunity. 25 And what we saw as a consequence was an increase, a BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 91 1 dramatic increase in the numbers of African-Americans, 2 Chicano-Latinos, women who were admitted to higher education 3 and who were successful. 4 We then hit a point of diminishment or low points 5 where -- and I consider this moment being a similar one where 6 those very mechanisms that had long since proven themselves 7 effective and successful are now being dismantled or being 8 challenged because the suggestion that somehow were no longer 9 needed which is definitely not true, or that they didn't work, 10 which is definitely not true. I'm living evidence that those 11 programs of equal opportunity and affirmative action work. 12 And needless to say they don't work by creating a situation 13 where unqualified individuals earn degrees. They simply work 14 by challenging the system to go beyond its standard procedure 15 of selecting only among those who are already privileged, but 16 rather opening -- insisting that the gates be opened wider, 17 that opportunities be given to individuals who have not had 18 those opportunities before. But ultimately those individuals 19 have to do the work in the classroom. They have to perform in 20 their occupation. 21 So that's a -- I'm sorry a long-winded answer, but 22 the long and short of it is that what we've seen is these 23 peaks and valleys. And there are many scholars who relate the 24 peaks and valleys to economic change in the society because 25 the society was challenged in terms of stereotypic notions of BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 92 1 African-Americans, and the threat of African-Americans being 2 on equal footing and on an equal basis. 3 And historically, you look at the work of any number 4 of historians, James Anderson, an educational historian shows 5 us in the area of education. George Fredickson, a historian 6 more, generally, wrote a journal and they showed it in terms 7 of a society as a whole. But the point is that the society 8 has a tendency and whites in particular that when things are 9 going back, economical, when they're feeling insecure, 10 inevitably it spells bad news for people of color because the 11 fact of the matter is that the tradition of the society has 12 been one historically where the notion of equal competition 13 and being of equal status with blacks was problematic. And so 14 whenever there is a situation of scarcity or self-sense of 15 scarcity, then we have a situation where the clock was turned 16 back. 17 Q Let me take you back for a second to your comment about 18 comparisons between black students on largely white campuses 19 and black students on historically black campuses. Tell us what 20 the benefits and downsize of being on an integrated or 21 partially integrated campus are for black students, if you 22 would. 23 A I began to focus on such a comparison because I was 24 confronted by a puzzle. And the puzzle quite simply was one 25 that took the form of two groups of students who both appeared BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 93 1 to be very promising and sure far bets for graduation and 2 success occupationally. So one group of students was a group 3 of African-American students who decided to HBCU, and another 4 set of students was a group of students who decided to go to 5 predominantly white universities and colleges. And the puzzle 6 developed for the simple fact that these students who often had 7 similar profiles, almost down to the last detail, in fact, had 8 dramatically different outcomes in those two settings, in a 9 predominately white setting versus a predominately black 10 setting. The bottom line is that those students who went to 11 predominantly black institutions did better academically. They 12 felt better about themselves. They had better outcomes 13 compared to their peer students at the predominantly white 14 schools. And it was even more striking once I began to delve 15 into the questions and very often the students who attended the 16 predominantly white campuses, those black students who attended 17 predominantly white schools were better off economical. They 18 have in many respects more solid academic credentials and yet 19 they had worse academic outcomes. 20 So it led quite naturally to a question of well 21 what's going on in these two environments to explain or 22 account these different, these radically outcomes for 23 population of students who are very similar by all the 24 standard measures of qualification. 25 And the answer to that came forward in the series of BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 94 1 studies that we have done on those campuses, studies using, as 2 I said, aggregate statistics, that is, institutional records, 3 census data, studying using survey data, and studies where I 4 simply would conduct focus groups and very intensive 5 interviews with these students. 6 What came through quite clearly was the fact that in 7 one instance in those -- at those HBCUs, at those historically 8 black colleges and universities the students an environment 9 that was more supportive, that was friendlier, that felt that 10 they could success and basically facilitated them the 11 attainment of excellence. And by the way, that brought them 12 eventually to a point where they could then go on, and when 13 they left those schools, it wasn't that they had the kind of 14 education that couldn't be applied elsewhere, they left those 15 schools and went to successful careers at the leading graduate 16 and professional programs around the country and into the 17 various occupations themselves and excelled. 18 So this is compared this compared with a situation 19 in white schools, where I talked to those students. They 20 talked about feelings of isolation. They talked about 21 feelings of being treated as aliens. They talked about 22 situations where the presumption was that they weren't 23 qualified, and the actions of many people ostensibly enrolled 24 to support and facilitate them were quite the contrary. They 25 were really actions that undercut those students in terms of BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 95 1 their confidence. Undercut them in terms of their success. 2 Undercut them in terms of their opportunities. 3 So those were the lessons that emerged. Now the 4 long and short of it is when you compare HBCUs to 5 predominately institutions in this country, it's just amazing 6 HBCUs overproduce in terms of their proportion of the three 7 thousand plus schools of higher education in this country. 8 They were producing -- HCBUs' produced twenty-five, thirty 9 percent of all graduating BAs who are black in any given year. 10 And so those lessons continued to motivate the 11 research that I'm in the midst of literally trying to figure 12 the good things about HBCUs, and translate those lessons to 13 predominately white schools. And similarly those things that 14 are positive of white schools in terms of the preparation of 15 African-American students to translate those back to HBCUs. 16 Q That's exactly what I was going to ask you next. What is 17 any of the advantages for black students going to partially 18 integrated predominately white schools? Is it all downside, or 19 is there any upside? 20 A There are many upsides. For one thing, in higher 21 education as in many areas of life you have these prestige 22 hierarchies. So to complete one's education at a Stanford or 23 Harvard, or the University of Michigan is to automatically be 24 in rarified air and to have several opportunities opened for 25 you that are reserved for the most exclusive -- a small set of BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 96 1 exclusive individuals in the society. Similarly, those schools 2 are better resource. They're better resource in terms of just 3 the hard the physical resources, the availability of computers, 4 the sort of facilities in terms of the science labs. And they 5 further are advantaged in terms of the qualifications, 6 preparations, and backgrounds of their faculty. So they have 7 all of these kinds of advantages that are just a function of 8 being a prestigious leading institution in the country. 9 Now, the downside for African-American students is 10 that often they are not able to take full advantage of these 11 opportunities. And when I say for African-American students, 12 for students of color, I mean more generally especially for 13 Chicano-Latino students. Those advantages -- so you're in 14 this rich environment, but by virtue of how you are perceived 15 and how you experience, many of those advantages are beyond 16 your reach, and you cannot benefit fully from them. 17 Contrast that with the historically a black college 18 and university. Those students feel a part of that -- of 19 those institutions. They are validated, they are appreciated. 20 They don't begin with the assumption and having to disprove 21 the assumption that they are not qualified, that they have bad 22 value, they have bad work ethnic, that they had bad 23 educational preparation. 24 In fact, it translates into a simple example. In 25 one setting, the HCBUs, a student may reveal a shortcoming or BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 97 1 a deficit, but it's perceived as correctable. It's perceived 2 as aspects of that individual's educational preparation that 3 was not addressed, but it can be, and should be, and will be 4 addressed. 5 By contrast when you look at the data and you talk t 6 the students in the setting of a predominantly white 7 institution to reveal such a deficit is to be viewed very 8 often as fatally flawed, uneducable, totally beyond repair. 9 So it becomes a very difficult situation because needless to 10 say there is not a person who comes into any institution who 11 does not have some areas of weakness in his or her background, 12 preparation or skills and expertise. So it's a matter of how 13 it's responded to in the two settings. 14 Q Why is it different for a black student than it is for a 15 white student on a mostly white campus to come up against the 16 limitation or weakness -- 17 A Because of the fact that we have a sad history around 18 race in this society and that sad history is very much present 19 with us in terms of associates about the inherent inbred 20 biological inferiority of African-Americans of -- people of 21 color more generally. And so that expression takes many forms. 22 I mean, it, has by the way evolved over time, too. I mean you 23 find very few people who will talk about innate biological 24 inferiority. 25 Now, it's not say that there are scholars who still BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 98 1 go back to that old song. As recently as a few years ago, the 2 Bell curve resurrected and those of us who study the history 3 of intellectual racism see again those ebbs and flows where 4 those biological explanations will rare ugly heads and serve 5 as a justification for preserving this racial hierarchy of 6 white over black, and white over people of color. 7 So you see in that kind of a pattern a tendency to 8 assume the worse about a black student who demonstrates any 9 kind of lack of preparation. And paradoxically as you look 10 into the research we've done, you find that paradoxically it's 11 a Catch-22. So those black students who can survive and 12 prevail over the extreme odds that presume them to be 13 incompetent even that becomes a negative because then it's 14 communicated to you that, well, you're not a regular black 15 person because my stereotypic construction says that a regular 16 black person could not do this well, so you must be something 17 other than a regular black person. You're not like, quote, 18 unquote, you're not like the rest of them. 19 And so you have a situation where these students are 20 simply put not being treated fairly. They are not being given 21 a fair shot and it translates into the kinds of negative 22 outcomes that differentiate historically black college 23 environments from predominantly white college environments for 24 students. 25 Q If I understood you earlier seventy-five to eighty BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 99 1 percent of black college graduates, graduate from largely white 2 institutions. 3 A Twenty-five percent to thirty percent of the total in any 4 year of black students come from black schools, so, yes. 5 There's a bulk of black graduates in any given year come from 6 the remaining three thousand institutions in this country, most 7 of them -- all of which are majority white. 8 Q As you know, one of the questions that is being tried 9 here has to do with GPA and whether it's a neutral measure of 10 achievement and merit. Tell us your opinion about the 11 implications of what you've said so far today for that 12 question. 13 A I think definitely GPA is not a neutral measure of merit. 14 I'm a professor. I know that grading is an art form. And it's 15 particularly an art form when you -- it's more of an art than a 16 science particularly when you move outside the hardest areas of 17 the curriculum. The "hardest" being not most difficult, but in 18 terms of being most quantitative. 19 So the science art equation is let's say more 20 science over in the hard science, the physics, the chemistry. 21 But even then there's an element of art because we have to use 22 our judgment, and we have to make decisions around the 23 arbitrary cut point.And I think it is often in those instances 24 where all other things being considered equal, the world view 25 that a professor brings to the table will influence how he or BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 100 1 she evaluates a student's performance, and knowing that 2 student's race, or knowing that student's ethnicity, or 3 gender, or even social class. 4 Q Does the environment at the white campuses -- excuse me, 5 mostly white campuses you've studied, have any implications for 6 aggregate GPAs? 7 A Absolutely. I mean so, as I've said, under the 8 hypothetical situation where everything is equal, even there 9 grades are not necessarily going to be assigned fairly or 10 equitably to students of different race. 11 When you look at the broader set of environmental 12 circumstances it becomes even mor complicated. It becomes 13 even more powerfully evident that race matters in terms of the 14 grades that students will earn. 15 As I listened to the testimony of Connie Escobar, 16 the testimony of Chrystal James, those sort of lived case 17 examples linked up with evidence from our focus groups, linked 18 up with evidence with the survey research I've undertaken, to 19 demonstrate conclusively that features in the college 20 environment in terms of just established practices and 21 structural relationships and interpersonal relationships have 22 a diminishing effect, if you will, on the educational outcomes 23 for black students, on the GPAs of black students. 24 And I know it's starting to get fuzzy so let me give 25 you a couple of examples, if I could. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 101 1 Out of a focus group comes the example of an 2 African-American student who takes a quiz in calculus I think 3 it was, and earned a grade of ninety-five. That student is 4 called into the professor's office. And, of course, he's 5 excited because he thinks that professor is going to 6 congratulate him on his stellar performance. Instead, he's 7 confronted with the charge or the question of whether he 8 cheated on the examination. And the only evidence of his 9 having cheated on the exam which is in mathematics was that he 10 did much better than African-American students can be expected 11 to do given established stereotypes. 12 Now fortunately in this case, this student had the 13 kind of psychological fortitude that allowed him to move into 14 the retest situation and he was required to take this exam 15 again, and under the direct supervision and surveillance of 16 the TA, and bless his heart, this student scored a 17 ninety-eight the next time around. 18 My voice quivers because very few human beings can 19 respond that way. And more often than not, the response is 20 one not of such a positive outcome, but rather it is one that 21 demoralizes that student, that leaves that student in a 22 situation of saying, what's the use, I have played by the 23 rules, I performed at an excellent standard, and still I 24 cannot outrun this mythology, this stereotype that presents me 25 as educationally and intellectually incompetent. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 102 1 So we have examples like that. We have further 2 examples in our law school setting where one's performance is 3 not solely based on how you perform in the written exam, but 4 those written exams and final grades are adjusted based on 5 explicit incorporation of the professor's impression and 6 evaluation. And just the despair that comes forward from a 7 young woman that says well how am I going to get a full 8 hearing, when I've been in this class for a semester, along 9 with two or three other black women, I have taken this 10 professor to lunch as is the custom in law school to get to 11 know him, paid good money for this man's food, and this man 12 still doesn't know me, can't differentiate or distinguish from 13 the other three black women in the classroom. So periodically 14 we each wear one another's names. And, yet, this individual 15 has to sit down with my papers, with only my name, and make a 16 judgment about whether and how my performance should be -- how 17 my final grades -- my grades should adjusted to reflect my 18 performance, and he could not pick me out of a lineup. 19 So you get instance, after instance, after instance 20 of that kind of experience. And the cumulative effect quite 21 frankly is one diminishing academic performance. And it 22 diminishes academic performance. 23 What I try to do is to demonstrate that it 24 diminishes academic performance at several levels. It creates 25 psychological crises, and we know that individuals -- I mean, BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 103 1 human development teaches us. That's another area that I did 2 a lot of work on, psychology of the family, and socialization. 3 And kids thrive in safe, supportive environments. Those are 4 the environments where their development is maximized. 5 And similarly with adults. We still are social 6 beings so we need positive feedback. We need support, and we 7 must circle in these to have the sense that we will be treated 8 fairly. And when people are in this situation where they 9 can't feel this to be so, psychologically they're damaged. 10 They're psychologically in terms of interpersonal 11 relationships. And, again, the evidence there. You read 12 through and people simply withdraw because it is stressful and 13 tiring to confront, day-after-day, the stereotypes, the small 14 slurs, the small negative remarks which by the way is an area 15 of study that informed our research, refers to as racial 16 microaggressive. Those are aggressive actions aimed at 17 reestablishing or reaffirming the racial hierarchy. 18 And so when people make these sly, small comments, I 19 guess they could be dismissed by someone as, oh, one comment. 20 But you have to be -- remember that you're already in an 21 extreme minority. So if twenty folks make those small 22 comments that day, you've had twenty assaults, multiplied by 23 whatever number of days per week, and by whatever number of 24 weeks per semester. 25 So the long and short of it is that many students BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 104 1 simply withdraw, they cease to interact. They try to figure 2 out ways as human beings do to protect themselves, to preserve 3 themselves. And one of the things you often will do with 4 unpleasant situations is you avoid them, you avoid them. And 5 certainly avoidance in terms of school can be a hurt, a fatal, 6 potentially fatal adjustment as far as your grade is concerned 7 if and is often the case your grade is probably predicated 8 upon your level of participation in the class. 9 So you're in a class one among a sea of white faces. 10 And after some point you are tied up with just preserving 11 yourself psychological, and trying to avoid struggles and 12 strains, but it has a consequence for your educational 13 performance. And it really has a consequence for your 14 learning because the learning is very much tied up in 15 interaction, and exchanges, and developing arguments. But one 16 has to have to safe space in those kinds of encounters to be 17 positive rather than the negative. 18 Q And are you speaking now both of the work that you've 19 done over the course of your career and the work on this case, 20 or one of the other, or -- 21 A I'm sorry. I'm talking about the -- more specifically 22 when we look at the survey research that I've conducted over my 23 career, and I have two major data sets that are worth noting. 24 A study of black students on sixteen campuses nationally. And 25 the studied population consisted of five thousand plus students BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 105 1 in all levels of school, professional years, graduate school, 2 and undergraduate school. And, indeed, those students, a 3 portion of them I follow over time. But in those campuses, are 4 predominantly white campuses and in those campuses were 5 historically black campuses. 6 There was a second study of some three thousand 7 undergraduates of all races and obviously it had gender 8 variation in each of the data sets in the upper midwest 9 looking at students' experiences on different types of 10 campuses, that is, a private research campus, a public 11 research university, a small liberal arts college, and so on. 12 And out of those surveys and the aggregate findings 13 of my work, of the work of Astin, of the work of any number of 14 scholars who study these questions have come very clear 15 indications of, for example, that black students feel higher 16 levels of isolation than do white students. Black students 17 more often consider dropping out of school than do white 18 students. 19 And by the way I say "as" as a correlator, but very 20 often they don't differ from those white students in terms of 21 their academic backgrounds, or their level of academic 22 performance. But where they are differing is just in terms of 23 their sociopsychological responses to those campuses and the 24 dispair and disengagement and alienation that the campuses 25 create for them. And so those items out of the surveys also BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 106 1 show that the students are less socially connected. They feel 2 more alienated. They talk about their relationships with 3 faculty members and literally in those aggregate statistics we 4 see that the black students have poor, more problematic 5 relationships with their predominantly white faculty. I mean, 6 we have a battery of questions that have developed and evolved 7 over the years, borrowed from people, constructed by us. 8 But that shows, for example, that white faculty has 9 problems relating to black students. And, in fact, at times 10 avoid interacting with those black students. Or further that 11 they will often give those black students -- as one student 12 described it in the focus group, "get out of my face" type 13 answers. Very short answers that essentially did not serve 14 those students and that communicated to those students that 15 they were lesser beings than the white student who either was 16 in front of them and spoke with same professor or behind them 17 and spoke with the same professor, and received a dramatically 18 different reception and response. 19 I can't help but make a connection to Ms. James' 20 testimony and it links up with a finding out of a focus group 21 where -- the focus group research conducted at the University 22 of Michigan where two black females students had gone in for 23 assistance and the professor palmed them off on a fellow 24 student, and turned his back to his computer. I don't know 25 what it is about us professors and our computers, but that in BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 107 1 and of itself may be worth a study, but literally what it 2 translated into was just not some dealing with the needs of 3 those young women and dismissing them and sending a very 4 powerful message that they were not worth his time or his 5 fulfilling his assigned duties of teaching all students in 6 that institution. 7 So the findings that I'm quoting from are drawn from 8 both -- from all the bodies of research that I've been engaged 9 in, the large scale surveys, my reading of the literature, but 10 also my research is more qualitative and more focused. 11 Q Some of which was carried out for this case; correct? 12 A Absolutely. 13 Q Tell us about the work you did for this case. 14 A Okay. I have a philosophy when I serve as a court 15 expert, first and foremost of conducting first-hand empirical 16 research, specific to the questions in the case. That's not -- 17 basically it's intended to provide -- from my prospective, to 18 build up on the work that I've already been doing as a scholar 19 of sociology of education, but to bring to bear some specific 20 details of the case at hand. 21 Now the particular research project that I executed 22 was based up on an involved a case study method that I've 23 developed over the twenty-five years plus that I've been doing 24 this kind of research. And it's a comprehensive approach, 25 self-consciously comprehensive in a sense that I draw data. I BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 108 1 make a point of -- first, of all assembling a team of experts 2 across the areas of substantive and methodological need. And 3 there has to be a historical component to the study because 4 the fact of the matter is that the present is very much rooted 5 in, effected by, shaped by history and particularly when you 6 talk about race because history is very much present. So that 7 was a component, to identify a historian of education, and to 8 literally look at the history of the University of Michigan 9 and the University of Michigan in the terms of the college and 10 the law school, around questions of race, and the status of 11 African-Americans, just that long historical review that 12 provided the context for the nix aspects of the study. 13 And the more immediate empirical aspects of the 14 study were in the following components: Analysis of African 15 statistics from the University. The University has, for 16 example, an incredibly detailed retention file which maintains 17 records and information on all students who enter the 18 University to the point of separation, whether they graduate 19 or they transfer, or for whatever reason that they separate. 20 So aggregate analysis of that data set was a 21 component, supplemented by survey data. Now survey data are 22 more of a middle range strategy. That is the kind of 23 questionnaires where you can ask individuals, a large group of 24 individuals questions that have been scientifically developed 25 to get at the issues of interest. And those people respond to BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 109 1 those questions, and you ask -- basically you build in several 2 strategies so you can be sure you are getting accurate 3 responses. You ask, for example, the same questions several 4 ways. And you ask other questions that are related and will 5 confirm that evidence. 6 So survey data both from my earlier national studies 7 because by the way the University of Michigan has been a 8 participating campus in the national study of black college 9 students, a study of five thousand plus black students that 10 has been ongoing since 1981. And then I supplemented those 11 survey data with additional survey data collected in this 12 year. 13 Now, from April to May - I should say in last year 14 -- April to May of 2000, we collected survey data, conducted 15 focus groups, and conducted intensive life histories, and took 16 some interviews and life histories with selected students at 17 the University of Michigan Law School. But understanding that 18 the University of Michigan Law School in many ways is linked 19 to the feeder undergraduate institutions that is those major 20 schools that provide the members of the entering class a 21 further need to look at student experiences prior to, as well 22 as during, or after their entry at the University of Michigan 23 Law School. 24 So I'm making it very complex, but essentially the 25 elements were a multi-level data collection, a historical BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 110 1 component, a demographic component, survey research, focus 2 groups, and life histories. And then in terms of the locus or 3 the places of the study, looking primarily at the University 4 of Michigan Law School, but knowing that such a focus would 5 not be adequate in and of itself, so also looking at selected 6 undergraduate institutions that over the years have been among 7 the top ten schools providing undergrad BAs who moved into the 8 University of Michigan Law School. So those four 9 undergraduate institutions were the University of Michigan 10 College, LS&A; Michigan State; Harvard University, and the 11 University of California Berkeley. So that in a nutshell is 12 the design that we used for this research. 13 Q How did you identify those four campuses? 14 A We basically identified the four campuses based on a list 15 provided the University of -- produced by the University of 16 Michigan Law School, that for successive years showed the 17 breakdowns of the entering class in terms of the undergraduate 18 institutions of origin. And those schools were, in each year, 19 in the top four -- I'm sorry, the top ten undergraduate 20 colleges or origin for the incoming class to the University of 21 Michigan Law School. 22 Q So your work on the case was a particular example of 23 stuff you've done before. 24 A Yes, very much so. 25 Q Questions of access, academic performance, et cetera, but BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 111 1 focusing on the law school on one hand, particularly in the 2 feeder schools; is that a fair summary? 3 A That's correct. 4 Q Tell us about your team. 5 A The team consisted of really an outstanding group of 6 scholars. Professor James Anderson, historian of education at 7 the University of Illinois. Champaine Urbana was the historian 8 of education and did the historical study. 9 The research team that gathered survey and focus 10 group data was once more just a distinguished group of 11 colleagues, Professor Daniel Solorzano, graduate school of 12 education and information studies at UCLA has just done 13 extensive work on questions of race, ethnicity, inequity in K 14 through 12 education and higher education. Professor Grace 15 Carroll similarly has done extensive work on those topics and 16 worked for a time in college admissions and college academics 17 support. Those were the three main Ph.D. level members of the 18 team. And they were supplemented by graduate students about 19 five to seven graduate students each of whom was a master's, 20 held a BMA and was currently in the midst of a doctorate, a 21 program of doctoral study at the University California Los 22 Angeles. 23 There were a few other supplemental -- or 24 contributing, I should say researchers that -- a couple of 25 whom actually held Ph.D.s. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 112 1 So the long and short of it is that we had a very 2 talented team of committed scholars who were willing to work 3 cheap, but still produced quality and excellent work. 4 MS. MASSIE: Judge Friedman, this is actually a good 5 time to take a lunch break. 6 THE COURT: No problem. Two fifteen, we'll 7 reconvene. 8 MS. MASSIE: Judge, I'm sorry, can I raise one other 9 thing. I forgot to move into evidence Jay Rosner's original 10 and supplemental expert reports and also the exhibits we used 11 yesterday. Mr. Rosner is still here so I don't know if there 12 will be any questions -- 13 THE COURT: Any objections? 14 MR. KOLBO: Well, your Honor, we will object to the 15 extent that the report we believe contains opinions that we 16 were objecting to on foundational grounds, particularly with 17 respect to test design, psychometric, psychology of testing. 18 I feel I need to preserve that objection. 19 THE COURT: Over that objection with the 20 understanding that I'm going to determine the weight, we'll 21 receive those exhibits. 22 MS. MASSIE: Thanks, Judge. 23 THE COURT: Anything else? 24 MS. MASSIE: No. 25 THE COURT: Okay. See you all after lunch. BENCH TRIAL - VOLUME 9 WEDNESDAY, FEBRUARY 7TH, 2001 113 1 (Court recessed, 12:45 p.m.) 2 -- --- -- 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 114 1 (Afternoon session.) 2 -- --- -- 3 DIRECT EXAMINATION (Continued) 4 BY MS. MASSIE: 5 Q Professor Allen, before the lunch break you gave us a 6 bit of context for the study you did of feeder schools to 7 the U of M Law School and the law school itself and I want 8 to turn back now to the study you did for this case. 9 First, could you just tell us what were the goals, 10 what were the central goals for this study? 11 A The central goals for the study were to assess the 12 campus racial climate, both the law school and in the feeder 13 undergraduate institutions, and then -- and assess it with 14 an eye toward establishing whether, indeed, whether those 15 campuses, campus environments were racially hostile, and 16 secondly, to examine the consequences of campus racial 17 climate for academic outcomes. 18 Q What do you mean? 19 A Student grades, student retention, student 20 satisfaction with the college experience. 21 Q And I think you mentioned earlier that there were some 22 focus groups you carried out -- 23 A Yes. 24 Q -- in connection with that study? 25 A That's correct. 115 1 Q What's a focus group? 2 A A focus group is a research strategy that employs 3 guided discussions; that is, you get together a group of 4 individuals, usually about five to ten people, and using a 5 developed, scientifically developed protocol go through a 6 series of questions with that group and facilitate, guide 7 the discussion, and that's with an eye toward eliciting 8 information which will then be analyzed around the research 9 question at hand. 10 MS. MASSIE: If I could approach the witness. 11 THE COURT: Yes. 12 MS. MASSIE: Actually, Judge, there are a bunch of 13 exhibits that I'm going to try to enter through Professor 14 Allen and I'll just do them all now. 15 BY MS. MASSIE: 16 Q What I'm going to be focusing you on, Professor Allen, 17 is the report you did for this case. I'm going to ask you 18 to identify it so we can have it in the record, but there 19 are another number of other things that are in the binder 20 that I'll be moving in at the same time, if that makes 21 sense. 22 A Okay. 23 THE COURT: Yes. 24 MS. MASSIE: I'm providing the witness with 25 Tabs 156, 157 and 158. Could we take a look at Tab 156, 116 1 please. 2 THE COURT: I didn't realize those tabs were so big. 3 MS. MASSIE: I know, and 156 in particular is huge. 4 THE WITNESS: Yes. 5 BY MS. MASSIE: 6 Q What is Tab 156? 7 A Tab 156 contains my curriculum vitae, along with a 8 number of papers that I have published on the status of 9 black students at the University of Michigan in particular 10 and on the status of black students in higher education. 11 Q And this was something that you prepared in 12 conjunction with your retention as an expert witness by 13 the Intervenor in the undergraduate affirmative action 14 challenge? 15 A That's correct. 16 Q Which is Gratz versus Bollinger? 17 A Yes. 18 Q If you could take a look at Tab 157 for me. If you 19 can just let me know when you've got it. 20 A Yes. 21 Q What's that? 22 A Tab 157 contains the final report titled, Affirmative 23 Action Educational Equity and Campus Racial Climate, A Case 24 Study of the University of Michigan Law School, along with 25 appendices. 117 1 Q And that's the report that you prepared for the 2 law school case? 3 A That's correct. 4 Q And the undergraduate report was incorporated as a 5 supplement -- 6 A Yes. 7 Q -- to that report; isn't that correct? 8 A Yes, it is correct. That's Tab 158. 9 Q That's a supplemental undergrad report? 10 A I'm sorry, the report, the supplemental undergrad 11 report is titled Campus Racial Climate at the University 12 of Michigan-Ann Arbor, A Case Study, and it is the study 13 of the questions of campus racial climate and academic 14 outcomes for students of color at the University of 15 Michigan-Ann Arbor, and it also includes appendices. 16 Q And these items were all prepared by you personally 17 and specifically? 18 A That's correct. 19 Q I want to turn you now, if you can reach down there or 20 I can come get it, to Tabs 159 and 160, and if you could 21 tell us what those are, please. 22 A Sorry, 159 is actually in this book. 23 Q Is it? I apologize. I'm sorry. 24 A Tab 159 is the expert report prepared by Professor 25 James D. Anderson, and it is an analysis of -- it first 118 1 includes his -- it's an analysis of historical patterns of 2 racial exclusion and race relationships at the University 3 of Michigan. 4 Q And 160? 5 A 160 is a report prepared by another expert, Dr. Joe 6 Fagin, and this particular report is titled Negative Racial 7 Climates and Critical Mass Issues at Predominantly White 8 Colleges and Universities. 9 MS. MASSIE: And finally, I'm going to approach 10 the witness, if that's okay, Judge, with the Grace Carroll 11 supplement, which I handed out to everybody earlier today. 12 THE COURT: What number do you want to make that? 13 MS. MASSIE: 212. 14 THE COURT: I think, don't you have a 212? 15 No, that's right, 212. 16 BY MS. MASSIE: 17 Q And tell us what that is, if you would. 18 A The report was prepared by Dr. Grace Carroll, also a 19 member of the research team, and it focused on -- I'll use 20 the title: Case Studies of Success of Black, Chicano-Latino 21 and Native American Alumni of the University of Michigan Law 22 School, so the study of successful graduates who had been 23 admitted under affirmative action at the University of 24 Michigan Law School. 25 Q And that, too, was a supplement to your report? 119 1 A This is correct. 2 MS. MASSIE: Judge, I would like to move 211, 212. 3 THE COURT: Hold on. Let's do them one at a time. 4 Let me take a couple of notes. 5 MS. MASSIE: 211 is Professor Allen's CV. 6 MR. KOLBO: I have no objection, Your Honor. 7 THE COURT: Received. 8 MS. MASSIE: 212 is the Grace Carroll supplement. 9 MR. KOLBO: Your Honor, I just want to raise an 10 objection for the record. In a number of these cases, 11 including this particular exhibit, what's being offered 12 is another expert's report who isn't here, so I can't 13 cross examine Dr. Allen effectively on somebody else's 14 expert report, so -- 15 MS. MASSIE: Grace Carroll was a member of the team. 16 She was available to be deposed. She was on our witness 17 list for some time, in fact, and Dr. Allen as an expert can 18 rely on the findings and the work of the people on his team 19 whom he directed. 20 MR. KOLBO: I certainly agree, Your Honor, that an 21 expert can rely on hearsay, but the hearsay is not typically 22 admissible, and that's what is happening here. 23 THE COURT: I agree. I can't admit it. I won't 24 admit it, because it's not his report and so forth. He 25 certainly can rely on that and any other kind of data that 120 1 he has used to ultimately reach his expert conclusions. 2 MS. MASSIE: And you would have the same position 3 on the Fagin and Anderson reports, I presume? 4 THE COURT: It's not a position, it's pretty much 5 the way I was taught the rules. 6 MS. MASSIE: Okay. 7 THE COURT: The same thing about Fagin and Anderson, 8 which is 159 and 160. If he used those in rendering his 9 expert opinion, he certainly can use that knowledge as he 10 can in any other kinds of readings or studies or any of that 11 nature, but the reports themselves would not be admissible. 12 MS. MASSIE: Okay. Well, what I will do then is 13 move into evidence 156, 157 and 158, which were prepared by 14 Professor Allen personally. 15 MR. KOLBO: And Your Honor, I feel less strongly 16 about this, but I do want to lodge an objection to the 17 extent that Dr. Allen's testimony -- Dr. Allen's report 18 includes a lot of hearsay. He has discussed these test 19 results from these focus groups, I appreciate he can rely 20 on that, even though I think that that in itself is 21 inadmissible, but I don't feel as strongly about that 22 objection, Your Honor, as the ones I just argued. 23 THE COURT: Again, I think that will go somewhat to 24 its weight and so forth. The Court will allow 156, 157, 25 158, which have been reported to be Dr. Allen's own works 121 1 and own report. 2 MS. MASSIE: Okay. 3 THE COURT: Which obviously can contain hearsay, 4 but I don't think that makes a difference. 5 MS. MASSIE: I'm sorry? 6 THE COURT: To address the Plaintiff's concern, it 7 obviously contain hearsay, but that doesn't in itself make 8 those objectionable. 9 MS. MASSIE: Sure. 10 BY MS. MASSIE: 11 Q Tell us about the focus groups that you conducted. 12 You mentioned that focus groups are guided. Did you have a 13 protocol or some other kind of instrument for guiding the 14 discussion in the focus groups that you carried out for 15 this case? 16 A Yes, I did. I basically designed a research process, 17 trained the researchers in that process, and then monitored 18 their work to be sure that they adhered to the process. 19 A central element of the process was to develop and 20 finalize a protocol that is a set of questions around the 21 research issues of assessing campus racial climate and 22 assessing how campus racial climate, if at all, affected 23 the academic performance and academic outcomes of black 24 students, students of color and female students. 25 Q And is -- if you could, if I could turn you to 122 1 appendix one in your -- in Tab 156, please. 2 I'm sorry, 157, excuse me, your report for the 3 law school case. 4 A Yes, I have it. 5 Q It may -- it should be appendix one. 6 A I have it. 7 Q What's that? 8 A This is the general form of the racial climate 9 protocol used to guide each of the focus groups, and I say 10 the general form, because we made minor modifications to 11 deal with the membership of the specific focus group, so 12 changing pronouns, for example. 13 Q And in the -- so it contains a kind of introduction 14 and then if you could just talk us through the key things 15 that the focus groups were oriented around as reflected 16 in the protocol. 17 A Okay. The key protocol questions, as was indicated, 18 you have the introductory question, and then a series of 19 questions specific to the student's campus, asking the 20 student whether he or she had ever experienced racial 21 discrimination, or if it was the case of a focus on a group 22 of women, gender discrimination, probing the students on any 23 accounts they might offer to try and get a sense of whether 24 they were talking about discrimination that was more 25 structural or institutionally based or whether they were 123 1 talking about micro forms of that discrimination; that is, 2 discrimination that was the product of an individual 3 decision or individual actions. 4 THE COURT: The answers, are they recorded? 5 THE WITNESS: Yes, sir, they are, and transcribed. 6 THE COURT: Okay. 7 THE WITNESS: And then we -- should I talk a bit 8 about what we do with the data? 9 THE COURT: I'm sure we will get it. I'm just 10 curious, you know, I have been to commercial focus groups, 11 you know, where the client stands behind the window and they 12 show you all the products and what do you like about them 13 and all that and they don't record those. I just wondered, 14 you recorded them because you needed that data in order to, 15 I suspect, put it together for your report? 16 THE WITNESS: We actually record the answers for 17 accuracy, transcribe them, have them typed up and then 18 subject the text to a systematic analysis, and that analysis 19 takes the form of reading through in very minute detail the 20 responses, developing the themes and the general points and 21 ideas that are forthcoming in that focus group, and then 22 moving from there to a categorization of the responses and 23 an analysis and then linking that information, which is 24 now in the form of data, back to some of the originating 25 research questions. 124 1 THE COURT: So the purpose of the group is to probe 2 and then you analyze later? 3 THE WITNESS: Yes, sir. 4 MS. MASSIE: And Judge, the transcripts have been 5 marked. They are not in the binders, because they are too 6 voluminous. 7 THE COURT: I'm not necessarily interested in those. 8 I'm more interested in his opinions. 9 MS. MASSIE: No, I understand. 10 THE COURT: I was just curious as to what the 11 procedure was. 12 MS. MASSIE: We will probably be trying to -- we 13 will see whether it makes sense and would be helpful to 14 move them in at some point later on. 15 THE COURT: Fine. 16 BY MS. MASSIE: 17 Q Did you conduct any of the focus groups yourself? 18 A Yes, I did. 19 Q And did other people conduct some of the focus groups 20 as well? 21 A The focus groups were conducted by some other members 22 of the research team. 23 Q And as you were just discussing with the Court, they 24 were recorded? 25 A Yes, they were. And I edited all of the final 125 1 transcripts and participated, of course, and helped to 2 guide the actual analysis and interpretation phases. 3 Q What do you mean, you edited all of the final 4 transcripts? 5 A I mean I read them thoroughly and just simply worked 6 through in conjunction with the -- if it was a case where I 7 had not conducted that focus group myself, worked through 8 with the researchers to be sure that they had edited the 9 text and that they had taken care of those issues of 10 accuracy. 11 Q When you say edited, what do you mean? 12 A In some cases transcripts are -- well, just simply 13 reading the transcripts for accuracy and making the 14 necessary corrections. 15 Q Is it true that some of the -- some of the times the 16 transcription would contain words that were hard for the 17 transcriber to hear? 18 A Yes, either hard for the transcriber to hear or at 19 times it was a kind of idiosyncratic regional usage or 20 cultural usage that the transcribers might miss and so it 21 was absolutely necessary for the people who had conducted, 22 the person who had conducted the focus group to go back 23 and correct such omissions or such typos. 24 Q And you did that while listening to the tapes; 25 correct? 126 1 A Absolutely. 2 Q You're confident that the transcripts are full and 3 accurate renditions of the focus groups, except where there 4 is an elision indicated? 5 A That's accurate, yes. 6 Q And then if you could elaborate a little on the 7 process that you then go through of analyzing the focus 8 groups. 9 A Well, as I was saying, the process is one of producing 10 transcripts that contain and present the full record of the 11 focus group, questions asked, the answers received, and then 12 we treat that text, that transcript as data, as empirical 13 data, which is then subjected to analysis. 14 The analysis is not unlike most data analysis. 15 Essentially what one does is to work with a voluminous set 16 of information and try to understand the patterns within 17 the data set, and in this case the patterns within the 18 responses, and working in terms of the categories that 19 emerge from the focus group. 20 Now, focus group is a methodology somewhat different 21 than standard quantitative analysis, in that the standard 22 quantitative analysis, there is an approach such that you 23 impose your categories on the data; that is, by the -- by 24 virtue of how I construct my survey or questionnaire, I have 25 a predetermined notion of what will be important themes and 127 1 questions and so all of my questions are organized around 2 those presumed themes. 3 With the focus groups and with the qualitative 4 methodology, you approach the issue of trying to understand 5 patterns from the other end; that is, beginning with 6 people's verbalizations, beginning with their perspectives, 7 and then trying to extract the order out of the information 8 that they have presented. 9 So in one case you're working from the top down; 10 that is, with the quantitative approach. The qualitative 11 approach, you're working from, quote, unquote, the bottom 12 up; that is, using people's own comments, discussion and 13 construction of the question to arrive at a general 14 understanding, or a more focused understanding, I should 15 say. 16 Q Were there constraints across all the different 17 campuses, were there constraints of size and interview 18 personnel and so forth that you need to tell us about 19 to understand how the focus groups were set up? 20 A The one constraint -- I mean, obviously there were 21 several constraints and the least of which being that they 22 were working with limited resources and very real time 23 pressures, but the information generated is very reliable 24 and quite dependable, and so to the extent that there were 25 limitations of concern, none of that would rise to a level 128 1 such that I would not have confidence in these data or the 2 decisions or expert opinions that I would express based on 3 the data. 4 Q And I apologize, my question was not very clear. I 5 meant something much more concrete, just how big are they 6 supposed to be, were you alone when you conducted the focus 7 groups, would there be one researcher, two? 8 A Okay. The ideal model is where you have a facilitator 9 and then a recorder in some of the instances, and ideally a 10 facilitator who is one of the members of the major -- of the 11 three co-principal investigators, and in some instances I 12 actually conducted the focus groups alone and played both 13 roles, but feeling comfortable doing so, because I was so 14 close to the study and I knew that research and the paradigm 15 and it's just something that I have done for years, and most 16 importantly because there was the backup of a recorded tape 17 and later typed transcript. 18 Now, in instances where I was the sole person 19 playing the role of facilitator and recorder, the strategy 20 or the methodological adjustment were to make sure that 21 there were two tape recorders running for the entire span 22 of the focus group and that way not an utterance was missed, 23 because normally what the recorder will do is keep a 24 parallel set of notes, more so as a backup to a failed tape 25 recorder. And so the adjustment that I made to make sure 129 1 that we did not lose data and information because of a 2 failed tape recorder was to have two of them running at 3 the same time to produce both transcripts and then to 4 reconcile the transcripts. 5 Q And as I understand it, there was one tape that was 6 accidentally erased before it could be transcribed from the 7 focus groups; is that right? 8 A We lost one tape and I think that was a relatively 9 small focus group, but yes, only one was lost. 10 Q What campus did you do the most focus groups on? 11 A At the University of Michigan-Ann Arbor campus. 12 Q Why? 13 A Because the University of Michigan-Ann Arbor was at 14 the center of the study, both in terms of the law school, 15 obviously, as well as in terms of the undergraduate feeder 16 from the college of literature, science and the arts. 17 Q And is the top feeder school to the U of M Law School; 18 isn't that right? 19 A Yes, yes. 20 Q Had you had the opportunity to do research 21 specifically on the University of Michigan previously? 22 A Yes, I had. 23 Q What was that? 24 A I have been doing research focused on and around the 25 University of Michigan since, interestingly enough, before 130 1 I arrived to the campus in 1979, so as early as 1978 the 2 University of Michigan-Ann Arbor was a participating campus 3 in my national study of African American students, how they 4 experienced their educational careers on predominantly white 5 campuses and their academic outcomes. 6 And from '78 into the present I have done numerous 7 survey studies of the University of Michigan campus in 8 conjunction with the University administration, have written 9 two reports using the University of Michigan retention data 10 set, which as I shared earlier today was the data file 11 maintained on all entering students for -- from the point 12 of entry until their point of separation from the University 13 or five years, whichever came first, and a series of other 14 surveys, as well. 15 And I'm sorry, one other earlier group focusing on 16 interviews with individual students. 17 Q So the Ann Arbor campus was somewhat familiar terrain 18 to you? 19 A Very much so. It was one of my common research sites. 20 Q Tell us a bit about the history of questions 21 surrounding race and racial dynamics at the University of 22 Michigan-Ann Arbor. 23 A The history of race and racial dynamics at the 24 University of Michigan, not surprisingly, reflects the 25 history of race and racial dynamics in the larger society 131 1 and in higher education generally. The University never 2 had an official policy of exclusion of black students, but 3 in fact, operated in such a way that black students were 4 excluded from the University. Those black students who 5 attended the University were excluded from living on the 6 campus, having housing on the campus. And so that is a 7 historical record that simply reminds us that there was a 8 time when education was formally and in some parts of the 9 country legally segregated by race, and in other parts of 10 the country where the legal separation was not on the state 11 laws, on the state law books, but in fact, those schools 12 functioned in such a way as to exclude blacks from 13 attending, in many cases, what were publicly supported 14 institutions that they were helping to pay for. The 15 University of Michigan was in company with other schools 16 that were functioning that way historically. 17 And so you have seen over time a situation where 18 race has been problematic on the University of Michigan 19 campus, but you have seen some improvement, and as you read 20 many of the historical studies you see that one of the 21 major breakthroughs came at that point when the University 22 committed itself to fuller inclusion of black students, but 23 it goes without saying or it's important to add that those 24 changes in the University often came after black students 25 and other students in multiracial coalitions were pressuring 132 1 the University for changes; that is, in terms of mass 2 demonstrations and civil disobedience and so on. 3 So the story that history tells us about the 4 University of Michigan campus is a story that repeats for 5 many predominantly white campuses in this country. It's 6 just that those schools reflecting a societal tradition and 7 practice had blocked access to higher education for black 8 students and blocked it solely on the basis of race. 9 Q I would like to turn your attention to the focus 10 groups themselves now and ask you about the findings, the 11 conclusions you were able to arrive at coming out of those 12 focus groups. 13 A If I may, I would like to refer to my notes, to the 14 report. 15 Q Please do. 16 A To the report that you put before me. 17 I think those focus groups and the findings from 18 them were definitive in their communication of the fact that 19 the University climate was one that in many respects was 20 racially hostile and that further this negative racial 21 climate had very clear negative consequences for black 22 student outcomes, let's say, in terms of grades earned, 23 grade point average, in terms of the kinds of aspirations 24 that those students set for themselves post undergraduate, 25 in terms of their retention rates, and in terms of just 133 1 their general sense of satisfaction and belonging at the 2 universities. 3 Q And can you tell us particularly how the racially 4 hostile climate was expressed, how it took shape? 5 A The racial climate was expressed and had hostile 6 elements on several levels. First of all, there were simply 7 institutional practices that communicated to -- that 8 communicated to black students that they weren't welcome 9 or that functioned in ways that limited black access and 10 participation, so a certain set of academic requirements 11 for graduating high school seniors could and did represent 12 a barrier to applying to the University, being admitted, 13 and if and when there was a case where those black students, 14 for example, attended schools or spent their years in a 15 K through twelve experience, that did not allow them the 16 opportunity to gain those qualifications. 17 So that was one institutional barrier, just 18 institutional barriers having to do with admissions 19 requirements that were unfriendly to black students 20 and related other institutional practices. 21 For example, a practice that seems on the face of 22 it to be quite reasonable, that in order for one to receive 23 funding from University sources or from Student Government 24 for a particular interest group, student interest group, 25 you have to have sufficient numbers. 134 1 Well, institutionally that discriminates against 2 black students if the practices of the University, the 3 traditions of the University, have worked in such a way 4 as to depress black student participation, so you never get 5 enough black students, for example, to qualify for funding 6 of, say, a group like the Black Student Premed Organization. 7 So those are some of the kinds of institutional barriers. 8 Or the institutional barrier of the sort that at 9 the time most of the fraternities and sororities gained 10 their houses early in the University's history at a time 11 before black students came, so by the time black students 12 arrived the property was either spoken for or so expensive 13 that it was beyond the reach of -- reach and ability of a 14 black student fraternity or sorority to purchase a house, 15 so you had a situation where all the houses, fraternities 16 and sororities were white, just because of a culmination of 17 historical barriers and discrimination. So discrimination 18 at that level and racial dynamics that were disadvantaging 19 at that level. 20 And as well as more immediate and in-the-moment 21 racial barriers having to do with discrimination by faculty, 22 discrimination by peer students, repeated patterns of 23 harassment by police, unfair application, if you will, 24 for example, of rules governing parties that are given by 25 white-identified versus black-identified student groups. 135 1 I mean, in the one case white groups would often be 2 allowed to sponsor parties without any requirements of an 3 investment in security, whereas black students had to invest 4 sizable sums in security. So those are some of the kinds of 5 patterns, discriminatory practices by faculty with respect 6 to how they interacted or did not interact with black 7 students versus their interactions with white students. 8 Q Let me ask you to turn on the more interpersonal 9 expressions of racial hostility and racial discrimination. 10 Let me ask you to turn to page 56 of your report, which is 11 157. Your report, 157. 12 Page 56 of 157. I think I said 57, actually. 13 A Yes, I have it. 14 Q Everybody there? 15 These are your findings coming out of the focus 16 groups? 17 A That's correct. 18 Q For the feeder colleges to the U of M Law School? 19 A Yes, that's correct. 20 Q I'm going to go through these, Professor Allen. I may 21 skip one or two that I think are needless in our focus here 22 today, but I'm going to ask you to just tell us what you 23 mean by each one and develop it a little with examples from 24 the focus groups, if that makes sense, or examples from your 25 other research, if that makes more sense. 136 1 You say that white privilege and entitlement are 2 important and overarching features of the undergraduate 3 racial climate on the campuses you study. 4 What do you mean? 5 A I simply mean that it came through very clearly from 6 these data and this particular finding as confirmatory of 7 research in other settings and using other data focused on 8 the University of Michigan that the climate is characterized 9 by white privilege, and the simplest way to put that is that 10 whiteness is viewed as normal and being not white is treated 11 as abnormal, and so there are consequences for students in 12 terms of the degree to which they feel a part of the campus, 13 the degree to which their experiences are incorporated, the 14 degree to which they have faculty at the institution who 15 look like them or in their programs who are of their same 16 race and ethnicity, so that that privilege of whiteness is 17 such as to disadvantage students that are not white in the 18 various sectors of campus life and in their classrooms, in 19 their social experiences, and in the academic outcomes. 20 Q And how were you -- how were you able to gather 21 information about white privilege through the focus groups? 22 A The theme of white privilege bubbled up from our 23 analysis of transcripts, you know. We started with the 24 very general questions about campus racial climate and from 25 student responses and the discussion that ensued, the coding 137 1 of the, data produced this very clear notion that the campus 2 was characterized by white privilege, by the advantaging of 3 whiteness in all of its aspects. 4 Q You also talk about male privilege as being a 5 similarly overarching feature of life on the campuses 6 you studied. 7 What do you mean by that? 8 A Simply, again, the campus was interpreted as belonging 9 to men more so than to women and so the institution, many 10 of the institutional features, many of the practices, many 11 of the rules advantaged males, empowered them and made 12 them comfortable in reminding females that this place 13 belongs to us and you are simply here by permission or an 14 interloper. 15 Q And is that similar to the way in which white 16 privilege functions on a campus, in your view? 17 A It's similar. They have different features, but 18 they are very similar features, in that each reinforces 19 a societal hierarchy. So in the society at large that 20 message goes out that whites are the majority and that the 21 institutions, the practices, the values should reflect this, 22 and that other groups are secondary or minority groups. 23 And simply with women, power resides with men, and 24 so the message goes out that male values, male points of 25 view, men are more important than women in terms of what 138 1 matters, and I guess bottom line is if you look at the 2 larger society and you look at this campus as a large -- 3 reflection of that larger society in each of those arenas 4 that is very important, males out number females, whites 5 outnumber blacks, in many instances blacks are just absent. 6 Q And I'm going to go now to the third finding that you 7 list here, which is that within the negative campus racial 8 climate the educational playing field is uneven for students 9 of color compared to white students. 10 What do you mean by that? 11 A I mean the students simply reported example after 12 example that made clear that they -- that black students 13 or students of color were not on an equal footing with 14 their white classmates. So they would give examples, for 15 instance, of study groups forming within the sciences, so 16 you had a situation where black students were already 17 under-represented in the sciences and you had a situation 18 where study groups were an essential element of the 19 educational experience in that disciplinary area, and 20 student after student would report that study groups would 21 form around them and exclude them, so leaving them outside 22 an important element of the educational experience, and 23 flat out, because in many instances the students reported 24 other students saying to them in no uncertain terms that 25 you're black, you're not qualified, and that you'll pull 139 1 our study group down, so we're not going to include you, 2 because we don't think you're qualified. 3 And this was before -- you know, study groups formed 4 sometimes on the first day of class, before there is any 5 demonstration of who is qualified and who is not qualified 6 and who is talented and who is not. So that was one 7 example. 8 There were other examples of unfair grading by, 9 often, teaching assistants or professors who in their 10 approaches did not speak to or address the needs of those 11 black students, those Chicano-Latino students or were just 12 not very sympathetic working with those students. So you 13 had examples of student experiences that made it very 14 clear that black students and students of color carried an 15 additional burden in terms of their educational experience. 16 For instance, a link that ties us back to 17 institutional shortcoming, as well as making this point 18 about the uneven academic playing field is that often those 19 black students and those Chicano-Latino students had two 20 jobs, they had to be good students, excellent students, and 21 they also had to spend time constructing a social and group 22 environment that was there and available for white students. 23 So white students did not spend their time founding 24 organizations and trying to advocate on behalf of their 25 group to the same extent that black students had to. 140 1 So literally, that had academic consequences, as 2 well, and it was due to the fact that the uneven playing 3 field had produced a situation wherein black students wanted 4 to have organizations on that campus, they wanted to have a 5 social presence, if they wanted to have a voice, they had to 6 develop this from scratch themselves and spend inordinate 7 amounts of personal time working on those kinds of important 8 dimensions of their experience, giving themselves a voice, 9 making themselves a presence, but with consequences for the 10 amount of time available for studying. 11 And by contrast, for example, their white fellow 12 students could come into an environment where many of the 13 organizations that were essentially for them socially had 14 already been established and had larger memberships and 15 were in many respects self-continuing. 16 Q What stereotypes, if any, did students who 17 participated in the focus groups either talk about 18 explicitly or proverbially in their experiences to be 19 present on campuses? 20 A There were numerous stereotypes referred to by the 21 students and that characterized their experiences. I made 22 a mention of an institutional problem of police harassment. 23 There was one stereotype that resulted in regular and 24 routine stop-and-identify challenges by police officers, 25 largely and sizably to black males, but also to black 141 1 females or to Chicano-Latino males, in some instances where 2 it was communicated in no uncertain terms that you couldn't 3 be a student here, so you must be on this campus illegally, 4 so you must justify to me why you are here on this campus, 5 and by contrast, their white peers did not have these kind 6 of experiences. 7 In the classroom -- so those are some of the 8 stereotyping. That's some of the stereotyping that 9 occurred in quote, unquote, social spaces or outside of 10 the classroom. 11 In the classroom proper, I have given you one 12 example of stereotyping where, when student peers exclude 13 a black student or a Chicano-Latino student from the study 14 group because of assumptions of innate inferiority or lack 15 of academic preparation, that is stereotyping by peers. 16 Similarly, there was stereotyping in some instances 17 by faculty. I used the example earlier today, the black 18 student who did extraordinarily well on a mathematics quiz 19 and then was challenged and accused of cheating and had 20 to attempt that same exam again and fortunately did much 21 better. 22 So stereotyping of the sort that linked up with this 23 long history in America of the negative perception of black 24 people generally and of blacks in terms of their educational 25 performance specifically was a recurring theme as the 142 1 students talked about their experiences, and in the law 2 school context, some of that was also apparent in terms 3 of women and their experiences. 4 Q I want to ask you specifically about, I know there 5 were some focus groups that included Asian Pacific 6 Americans. Was there a hostile climate for that group 7 of students as well on the campuses you studied? 8 A Yes. Contrary to popular mythology, those students -- 9 or contrary to what we would expect, because you have ideas 10 of Asians as a model minority and not having any kinds of 11 problems on these campuses, and indeed, sometimes they as a 12 minority group are pointed to as and held up as an example 13 for other minority students when, in fact, these students, 14 these Asian Pacific Islander students talked about instances 15 in many cases of extreme racial stereotyping, and the model 16 minority being one such racial stereotype, but additional 17 racial stereotyping of taking the form of overt racial slurs 18 in and around the campus and in some instances rising to the 19 point of physical threat, and as is the case with racism 20 and sexism, at times the racial and gender discrimination 21 overlapped and so some of the Asian Pacific Islander women 22 were confronted with racialized and sexualized stereotypes 23 where they were cast in very stereotypic fashions by student 24 peers and in some instances by things that faculty said to 25 them. 143 1 So the interesting quality about these forms of 2 racial and sexual discrimination and on this campus is that 3 they are and continue to be a real element in this society. 4 Now, at the same time, the society has made some 5 gains and in fact was making tremendous progress and much 6 of that progress was being assisted by successful efforts 7 to increase the representation of different groups on the 8 campus, because it's harder to stereotype when you can 9 look around you and see six, eight examples of a person 10 from Chinese ancestry, because if you have any kind of 11 consciousness, you will see that those people are presenting 12 themselves differently, even though they have a shared 13 common belief. I mean, a common kind of presentation in 14 some elements. 15 The point is that if you look at the skin colorings, 16 you can look at the ethnic group and know that they are 17 Chinese, but the point is that you can see the individuals, 18 but you must have enough people around, a large number, 19 critical mass, so that you can get that kind of diversity 20 within the group. 21 And when you do achieve that, and we were achieving 22 it, it's beneficial for the educational experience of 23 everyone on the campus, not to mention the fact that it 24 prepares us all better to live together as a society that 25 is diverse. 144 1 Q Did the stereotype of intellectual inferiority that 2 you were referring to earlier apply equally to all different 3 groups of minority students? 4 A Absolutely not. It attached much more strongly to 5 African Americans and more strongly to Chinese -- I mean, 6 to Chicano-Latino students compared to, say, Chinese 7 students or Japanese students or female students. And 8 that's again historically rooted in how this society has 9 constructed its views of African Americans. 10 But I can tell you one very refreshing comment from 11 one of the focus groups, a student was just talking about 12 the power of a class as an object lesson, and this class had 13 an African American professor and so the student was just 14 talking -- and this, by the way, was a Chicano-Latino 15 student -- just talking about how forcefully he was 16 influenced by that very bright African American man standing 17 up there teaching this class and how it was helpful for 18 him as a Chicano-Latino student as well as for the white 19 students and the other students in the room to understand 20 that African Americans are capable of such excellence given 21 a chance. 22 Q What impact did these dynamics have on the students, 23 what set of impacts? 24 A I had to pause, because they were influenced in a 25 variety of ways. The students talked about how experiences 145 1 of kind of a negative racial climate and discrimination by 2 students and faculty, peers, student peers and faculty who 3 were white, these black students, these students of color 4 talked about how it negatively affected their academic 5 performance in a number of ways. 6 At times, it left them feeling angry, helpless, 7 frustrated. In other instances it inclined them to drop 8 majors that they had sort of aspired to since childhood. 9 They wanted to be doctors since as far back as they had 10 remembered, they had wanted to be attorneys, and then these 11 aspirations were sidetracked by a faculty person who would 12 communicate to them that he or she didn't think they were 13 appropriate material, or they were sidetracked by faculty 14 not managing the racial dynamics in the classroom in such a 15 way as to challenge and have everyone explore and discuss 16 negative racial characterization. 17 So these students, their aspirations were disrupted 18 in places. They had extreme sociopsychological distress 19 and in some instances their responses were simply to drop 20 classes, stop attending class, stop engaging in interactions 21 and discussions, to withdraw, if you will. So those were 22 some of the negative kinds of responses. 23 There were some positive responses, as well. Some 24 of the positive responses were that these students did go 25 ahead and construct a social world, if you will, that was 146 1 absent for black students or for Chicano-Latino students or 2 for Asian Pacific Islander students on the campus. So they 3 spent time founding groups and making sure that their voices 4 were heard. 5 So a combination of those kinds of responses, but 6 disproportionately the responses were negative and with 7 negative consequences for their academic performance in 8 the year, in that moment, and also for their academic 9 aspirations. Self-esteem suffered. It was just -- the 10 list is long and spelled out here. 11 Q Tell us about the impact on academic aspirations. 12 A The impact on academic aspirations was such that, as I 13 said, students would enter school with a particular academic 14 goal, and because of their negative experiences with people 15 in the field, either their student peers or their faculty 16 members or their teaching assistants, and because of the 17 fact that they could not receive satisfaction, because many 18 of these students, I mean, these students would work very 19 hard to show that, and the students are not victims, I 20 mean, many of these students are not solely and completely 21 victims. 22 Many of these students, they come in, they are very 23 bright, energetic and determined, and so confronted with 24 racism and sexism they don't simply lie down, but the point 25 is that there is a cumulative effect such that over time 147 1 many of them are beaten down and so they simply give up and 2 leave a major because they are just told by counselors and 3 advisors, for example, that this major is not for you. They 4 go into classrooms and faculty don't take them seriously as 5 students or communicate to them that they don't think they 6 are qualified and so it translates into those students 7 either dropping or changing their aspirations. 8 When you look at the other larger studies that I 9 have conducted, survey studies both on white campuses and 10 on black campuses, that aspiration link is really quite 11 interesting, because you'll find that black students on the 12 white campuses will express higher aspirations on average, 13 but their expectation within whatever field that they move 14 into is that they will not become eminent in the field; 15 that is, they presume, having learned their lessons from 16 participating in predominantly white schools, that they will 17 be only allowed to rise so far and not much higher than 18 that, whereas their peers at historically black schools 19 who have similar aspirations, also, believe that they are 20 capable of rising to the top of that field once they move 21 into the field, not only just becoming a lawyer, but 22 becoming one of the preeminent corporate attorneys -- 23 excuse me -- one of the preeminent trial attorneys. 24 Q Thank you. 25 But on the historically black campuses, if I 148 1 understood what you just said, the overall level of 2 aspiration was lower, let's say, category of aspiration 3 was lower, but within that students had more of a sense 4 that they could succeed? 5 A Exactly. 6 Q And would be treated equally? 7 A Exactly. 8 Q Did the minority students in the focus groups 9 express only negative things about their white peers and 10 counterparts? 11 A Actually, they did not, and that was one of the values 12 of -- that was a value of our survey data. We had a simple 13 item, but an item that's been tested and proven to be quite 14 effective, where you ask students, if you had to do it 15 over again would you chose this institution; and a related 16 question, how many times have you ever thought of dropping 17 out. 18 These students, to a person, the majority of them 19 overwhelmingly said that despite all the negatives and the 20 challenges, given the chance, they would chose to attend the 21 University of Michigan again, knowing what they know now. 22 And they then would go on in the focus groups 23 and talk about some of those positives, and some of those 24 positives were quite obvious. We know that when the 25 University of Michigan works as an educational experience, 149 1 it works beautifully. It is a fantastic educational 2 experience. It prepares you quite well and it opens 3 doors and enters you into the competition for status in 4 the society at a very elevated level. 5 So the students talked about those very real 6 educational and occupational benefits that flowed, but they 7 also talked about, and this was another very clear finding 8 from the survey instrument and supported by the focus 9 groups, they talked about how much they had learned by 10 virtue of coming into contact with people from different 11 backgrounds and different races and ethnicities. 12 And that wasn't to say that there hadn't been 13 moments of tension, because, I mean, quite obviously you're 14 bringing people together of different points of view, so 15 there will be some tension, but there is growth that comes 16 out of that tension, and the students talked about that 17 growth and they talked about how they valued an opportunity 18 to meet and exchange with people who came from a different 19 world view, who were from a different race or ethnicity. 20 And as a sociological aside, there are just so 21 few, there's just so few places in a society where we 22 still have or will have opportunities for multicultural, 23 multiracial exchanges and they're really down to a couple. 24 I mean, we're talking about the workplace and we're talking 25 about schools, and it doesn't happen in the workplace if 150 1 it's not happening in the schools, because you'll have a 2 segregated workplace if you're having segregation in the 3 schools. 4 Q Did the students and the -- had students expressed -- 5 did all the students from all different races express 6 support for the diversity and the degree of integration 7 that had been achieved on the different campuses? 8 A Absolutely, and in fact, they were overwhelmingly in 9 support of a mechanism that had been used to achieve that 10 diversity, which was affirmative action. 11 Q In that regard, the -- you did some focus groups, you 12 told us, at the University of California at Berkley. Were 13 there differences in those focus groups compared to some of 14 the other ones that related to the question of the level of 15 diversity and integration on the campus? 16 A There were some key and important differences. One of 17 those had to do with just the issue of Proposition 209 and 18 the ban on affirmative action in the State of California, 19 and the students talked about how dramatically and how 20 negatively the campus had been influenced as a result of 21 such changes in their years there, talking about looking at, 22 for example, pictures of earlier years where there was just 23 an abundance of black people on the campus and then being 24 confronted with a situation in the present where blacks 25 were few and far between as a presence on the campus. 151 1 Similarly, the Asian Pacific Islander students, the 2 Chicano-Latino students, the black students talked about, 3 and indeed some of the white students talked about, how 4 that in some ways affirmative action had -- was being used 5 as, I'll use my terminology, a stalking horse; that is, 6 used as a basis for trying to validate racial stereotypes; 7 that is, by saying that if you see a black student or a 8 Chicano-Latino, then that student is unqualified, because, 9 quote, unquote, that student is an affirmative action 10 student. 11 So you got different dynamics across the campuses, 12 but the campuses were consistent. The students were 13 consistent across those campuses in terms of their comments 14 about the positives that accrued to them as people and that 15 accrued to them in terms of their educations by virtue of 16 being in an environment, in a setting, where they could 17 interact with students from different races, different 18 cultures, different backgrounds. 19 Q You reached the conclusion that, and I'm reading 20 from page 57, that academic performance is negatively 21 affected by the cumulative macro and micro forms of racial 22 discrimination. Students of color appear to be burdened by 23 more stress than white students. While all students must 24 focus on their studies and some also work to pay for their 25 education, students of color have an additional full-time 152 1 job of dealing with racial and gender assaults. This is 2 an extra burden that most white students do not face. 3 A Correct. 4 Q And that finding was based on the focus group 5 transcripts and the analysis that you conducted of those? 6 A Yes, yes. And the students who walked us through 7 and talked about the kinds of discrimination that they 8 experienced, and from there talked in specifics about its 9 consequences for their experience on the campus generally, 10 their educational outcomes, their social experiences. 11 Now, for me in terms of the sociological research 12 record that I have been trying to build, this was important 13 confirmatory information, because my earlier work done 14 on the national level, using surveys at the University of 15 Michigan and elsewhere, had proven that there was this 16 correlation, if you will, say between academic performance 17 and race, but in many respects that's just the beginning of 18 the question, because the next question is, then, why are 19 we getting this correlation. 20 And this is information that's of a richer, more 21 detailed sort about their day-to-day experiences and lives 22 on the campuses, and that question and the why came in 23 the form of professors that were less helpful, that were 24 stand-offish, or that didn't trust or value a student's 25 educational potential or educational performance. 153 1 The why came in a series of challenges to the 2 student's validity and it sounds -- I mean, when you try 3 to document racism or sexism or any form of discrimination, 4 and I don't know that I'm necessarily saying anything new 5 to those of you who are attorneys contesting these kinds 6 of cases, often it sounds very minor or even silly or 7 thin-skinned when you say, well, the white student before 8 me, the three or four white students before me came up, 9 made their request, and it was met immediately, no questions 10 asked. I come to the desk, I make the question, I get 11 carded. I have to show my ID, I have to report my -- I 12 have to state my Social Security Number. 13 So the point is that it's a very subtle, but a very 14 powerful communication to that female who reported such 15 an incident that she is not to be trusted, she is in a 16 different category, she is in a lesser category than the 17 white students who passed before her. 18 Or the black male who leaves -- this was a 19 Chicano-Latino male who leaves the library, long line of 20 students in front of him, book bags received just a cursory 21 glance, and they are shepherded on through. He arrives at 22 the check point and the entire bag is unloaded, as if he 23 is not to be trusted, as if he is going to be up to some 24 nefarious act. 25 And so those are, again, what I referred to earlier 154 1 as micro assaults, micro aggressions that are racialized, 2 racialized encounters of a sort that are in the form of 3 insults, in the form of challenges to legitimacy, that have 4 a cumulative effect on a student and basically does wear 5 them down, because they are talked about how drained they 6 would feel at the end of a day of confronting that kind of 7 process, and how for many of them it was so hard to get up 8 and go out the next day, but of course, they had to go out 9 the next day, because if they didn't go out the next day, 10 then as far as the system is concerned, you're skipping 11 class, and of course, you're missing content that day. 12 Q And even if you do go to the class, what is the 13 impact? 14 A The impact is often that you're in the class, but 15 you're not participating fully. I think that we heard 16 eloquent reports and very heart-wrenching reports of that 17 very fact from Ms. Escobar, from Ms. James, how you can be 18 in a class, but if you're not in a certain state of mind, 19 if you have been so disrupted that you can't concentrate 20 on what is happening in the class, you have been so 21 psychologically disturbed that you can't engage your 22 material fully or for that matter even if you have worked 23 through that psychological distress, but the interactions 24 are such that you don't feel yourself pulled into full 25 participation in the class, your questions are not engaged, 155 1 you're not engaged as a student, and given an opportunity 2 to demonstrate your worth and your perspectives, you simply 3 are excluded from study groups, together those elements 4 detract from your educational experience. 5 And I'm talking about the more covert and subtle 6 forms of discrimination, but we should make no mistake about 7 it, as is true in the society at large, on the campuses, on 8 the University of Michigan campus, on those feeder campuses 9 to the law school, in the undergraduate college at the 10 University of Michigan, across the board, across these 11 campuses, students also report instances of much more overt 12 discrimination that's not only upsetting, but in some points 13 carries the threat of personal injury, being physically 14 accosted or being physically threatened and certainly being 15 verbally assaulted by, I mean, just countless examples of 16 the students reporting slurs being hurled at them of the 17 worst sort, hurled at them as API's, as Asian Pacific 18 Islanders, hurled at them as Chicano-Latinos, hurled at 19 them as African Americans, and so you put all of this 20 together where you are facing discrimination that is 21 informal, and you are also facing discrimination from the 22 formal agents on the campus, and it is really quite a burden 23 for students to bear. 24 And in just taking us back to this whole idea of a 25 level playing field, it's not a level playing field, because 156 1 you have the same track for the students, this is true, but 2 given the kind of burden that I have just described, one 3 of the students has to run that 440, one group has to run 4 that 440 carrying a burden of a 500-pound stone, and the 5 other student is running or the other group of students 6 are running unfettered, and that's just simply not a fair 7 race. It's not a fair race. They are running, true, on 8 the same track, but they are not running under the same 9 circumstances. 10 Q Were the white students with whom you spoke in focus 11 groups conscious of the unevenness of the playing field? 12 A You know, initially in some of the discussions, not 13 necessarily so, but it was actually quite interesting to 14 see the process whereby some of the students in that group, 15 we had a few focus groups that were all white students, and 16 purposely so, where a student, for example, would deny white 17 privilege and deny advantages accruing to himself because 18 of his whiteness and being at the University of Michigan, 19 and then being challenged by other white students in that 20 focus group and the rich discussion that ensued, and that 21 concluded that, yes, there were advantages to being white, 22 and that, yes, there were entitlements that came by virtue 23 of that fact, and by virtue of the other fact that one was 24 white in an institution that was Eurocentric, that was 25 white-focused, that had a construction, had values and 157 1 institutional arrangements that privileged white students. 2 Q For all of the students, how important -- 3 A Excuse me. Should I give you an example -- 4 Q Please, please. 5 A -- of white entitlement? 6 It was very striking to see the difference, 7 for example, in policing of student parties, and this 8 particular entitlement may be as much a white male 9 entitlement as a white entitlement, where students, for 10 example, females talked about female protests, female 11 activities, like the Take Back the Night March, that 12 inevitably, like clockwork, when it wound past the 13 fraternity houses, males in those houses, white males 14 in those houses engaged in derogatory acts and in some 15 instances exposing themselves, often hurling insults and 16 slurs and name calling. 17 And now, mind you, these marches were escorted by 18 campus police, but to this day, as best I can understand, 19 no one has been arrested for those acts of public exposure, 20 for those attacks on people who were exercising their rights 21 to demonstrate. 22 Similarly, in terms of parties, Asian Pacific 23 Islander students talked about how closely their parties 24 were surveilled and monitored by police when just down the 25 street white fraternities were having parties that we will 158 1 mildly characterize as wild, spilling out into the street, 2 blocking traffic, public drunkenness, underage drinking, 3 but the police did not enforce laws in those settings. 4 Or instances where black students had parties in 5 the Union and they were funneled off the side door, I mean, 6 physically required to exit not through the front, but 7 through the side door, and this is contrasted with parties 8 by white -- sponsored by white organizations where the 9 front door was an acceptable point of entry and exit. 10 And, of course, there were also differences in just 11 the number of police that were required in order to secure 12 University approval for the function. 13 Q And what did those practices communicate, both to the 14 minority and to the white students? 15 A They communicated in no uncertain terms that the 16 campus belonged to white students, that the campus was made 17 for white students, that it was set up for their pleasure 18 and their benefit and that the students of color were there 19 not as full members of that community, but as outsiders. 20 Q I'm going to take you to another one of your findings, 21 Professor Allen, which I think summarizes some of what you 22 have been saying, but I want to give you the opportunity to 23 develop it and add to it, if you would like to. I'm reading 24 from page 58. 25 A student's academic performance -- it's the second 159 1 bullet point for people that are following along. 2 A student's academic performance as measured by 3 grades should be seen within the context of macro and 4 micro forms of racism; that is, while grades measure to 5 some degree a student's hard work, creativity, talent and 6 determination, for students of color this occurs within a 7 context of overcoming tremendous odds, racial affronts and 8 racial burdens. 9 A The point is, it's quite straightforward, that grades 10 have to be evaluated within the context of the experience 11 of the groups that have those grades, and so the long and 12 short of it is that given the kinds of burdens that I have 13 described, given the kinds of barriers and negative racial 14 experiences, for example, that the students reported, that 15 a Chicano-Latino who earns a B plus under all of that kind 16 of stress and under all of that kind of racial harassment, 17 sexual harassment, discrimination, it's not sufficient to 18 simply say it's the same B plus that her white male peers 19 earned on that campus, because his circumstances and his 20 experiences were decidedly different. 21 And I can't talk necessarily about the K through 22 twelve years, but on that campus they were decidedly 23 different, because on that campus he had a personhood, he 24 had a validity, he had access to resources and opportunities 25 that that Chicano-Latino simply did not have. 160 1 And so the point is to understand that the grades 2 must be contextualized, and that as much as we would like 3 to think about grades as objective and unsoiled indicators, 4 or similarly to think about tests that way, in fact, those 5 indicators often simply convey no more than cumulative 6 histories of either advantage or disadvantage. 7 Q In your opinion, what's the solution to the problems 8 faced by minority students on college campuses that are 9 largely white in general, but speaking specifically of the 10 feeder campuses to the University of Michigan law school, 11 which were the principal focus of your research here? 12 A I think we as a society had been on the pathway to 13 such a solution and that was to increase the representation 14 and the diversity of those campuses, I mean, because to the 15 extent that you can increase the numbers of students of 16 color on those campuses, increase that critical mass, 17 increase the representation in the faculties of those 18 institutions of faculty of color, then you improve the 19 educational experience for everyone on the campus, and 20 particularly on -- for those students of color on the 21 campus. 22 And I can talk a little bit about the specifics 23 of the premise, if you will allow me. 24 Q Yes. 25 A The fact of the matter is that, as I said, there are 161 1 overt instances of discrimination on campus, but they are 2 rare, they really are rare. They are very real, but they 3 are rare. 4 It's more often the covert instances of 5 discrimination, and in some instances that kind of 6 covert racial discrimination owes to nothing other than 7 just lack of familiarity with a particular group or 8 just ignorance of that group and that kind of lack of 9 familiarity, that unconscious expression of racial 10 discrimination. 11 That ignorance is addressed most effectively by 12 having a diverse group of people around who can engage a 13 professor, and one of his colleagues can engage him, around 14 his inappropriate racial assumptions or his inappropriate 15 racial comments, his inappropriate gender comments or sexual 16 comments. 17 The point is that we're most educated by our peers, 18 and similarly the students around one another can help to 19 educate each other and help to change the -- not only the 20 complexion, but also the character of interactions on the 21 campus. So I think it's a matter of trying to do more of 22 what we have been doing. 23 See, that's the irony that the affirmative action 24 movement, from my purposes, just as the success of the 25 program is building and we're really starting to see 162 1 reflected in the various occupations in society, in the 2 various institutions, the diversity of a sort that reflects 3 this country, there is a move afoot to hamper or discontinue 4 one of the key mechanisms for ensuring that we continue to 5 make progress on that front. 6 So those are some of the reflections I have about 7 what we can do. I think that we can recommit to making 8 sure that these schools continue to be racially diverse 9 and resist any efforts to turn the clock back, and then 10 secondly, bring the kinds of resources to bear that will, 11 in the long run, benefit the institutions and benefit the 12 larger society, because absent those kinds of responses 13 we're really wasting precious human resources in this 14 society by deciding from the day that a certain person 15 is born that she is destined to the lower regions of the 16 society or destined to the societal -- society's junk heap 17 without first getting a feel for this young lady's potential 18 and allowing her to develop it to a maximum extent. To the 19 extent she develops it to a maximum extent, then society 20 benefits. 21 Q Professor Allen, speaking still and taking you back 22 some to the undergrad focus groups and the conclusions you 23 reached there, do you conclude that having more black and 24 Latino students on the campuses you studied would improve 25 the average GPA of minority students? 163 1 A No doubt. 2 Q Why is that? 3 A Well, what we have seen from research, my own as well 4 as the research of others, and the Bok-Bowen is a good kind 5 of example that I think is known to most people, students, 6 black students, Chicano-Latino students do better in schools 7 that are better resourced, and for that matter, all 8 students. 9 I mean, retention rates are better at Harvard than 10 they are at lesser institutions, and for those who would 11 say, well, that's simply because Harvard has a different 12 product, the fact of the matter is that Harvard has a curve 13 just like everywhere else has a curve. So if it's a matter 14 of the competition working itself out so that the better 15 students excel and move forward and the others drop by the 16 wayside, then you would not have those high, high retention 17 rates that you have in a place like Harvard, because the 18 point is that there are some who are better at Harvard and 19 there are some who are not as good. 20 So the point, though, is that another one of the 21 resources of Harvard, the assumptions that they make, and 22 just this whole philosophy that we don't make mistakes, if 23 we bring you in here, you're good enough to graduate and 24 you will excel, and that's a different institutional 25 orientation than at some places where the notion is one 164 1 of, well, to be truly prestigious academically we have 2 to have a high body count, that is, our prestige is 3 predicated upon the number of students we flunk out, and 4 not the number that we graduate. 5 So I'm just simply saying that resources and 6 institutional orientation make a difference and when black 7 students and excluded students find their way to a Michigan 8 or have the good fortune to find their way to some of 9 those feeder institutions or to the feeder undergraduate 10 institutions of the law school, it produces excellent 11 outcomes for those students, because those students learn 12 more, as I talked about earlier, they have a better 13 resourced environment, the professors are more talented, 14 their academic physical resources are richer, and it 15 translates into higher levels of academic performance, 16 and more specifically what you see is improved rates of 17 retention, which are tied to higher GPA's. 18 Q And on any -- 19 A And by virtue of going through those schools that they 20 have been excluded from. 21 Q And on any particular campus, whether it's an MSU or a 22 Harvard or any campus, what's the relationship between the 23 number of minority students, the level of integration, and 24 the GPA's, the aggregate GPA's of those students, in your 25 view? 165 1 A In my view, the students do better when they have a 2 more sizable community. 3 Q And why is that? 4 A For all of the reasons of sociopsychological comfort 5 that I have talked about, social support systems, but also 6 for reasons of just changing the character of stereotypical 7 perceptions on the campus; that is, changing those 8 perceptions in such a way that people come to allow for 9 and to expect academic excellence from a Latino student, 10 academic excellence from a black student, but you have to 11 have an experience with those students and you must have 12 those students represented on the campus in sizable enough 13 number so that across the very disciplinary areas you have 14 critical masses of those students, those students are 15 performing, and those students are helping to provide the 16 dynamic for this institutional change that is necessary to 17 change those stereotypic views and to produce different 18 educational and academic outcomes for black students, for 19 Chicano-Latino students and so on. 20 Q And as a matter of recent history, the history of the 21 last couple of decades, have there been changes in national 22 aggregate data that either support or refute your views 23 about increasing the level of diversity and integration 24 and its correlates as regards GPA? 25 A I think there has been extensive evidence, and the 166 1 one book I mentioned, it lists in its bibliography many of 2 the other sources, and in my own work I have sources, as 3 well, past the Bok and Bowen study, The Shape of the River. 4 Q And can you just summarize what the nature of the 5 relationship is between the level of representation of black 6 and Latino and other minority communities and the academic 7 performance of those groups in the aggregate again? 8 A Okay. In the aggregate, the relationship is a very 9 simple one. If you have a larger presence of those students 10 on the campus, the students do better academically, they do 11 better in terms of their levels of social adjustment on the 12 campus, and indeed, the campus changes in positive ways 13 in terms of racial climate and interpersonal racial 14 relationships. 15 Q Let me turn your attention to the law school focus 16 groups that were carried out as part of the study, turning 17 away now from the undergraduate feeder campus focus groups. 18 In broad terms, were the conclusions you reached 19 based on the law school focus groups similar or different 20 in terms of what you found about campus racial climate? 21 A They were similar. 22 Q Were there differences that you would like to tell us 23 about? 24 A There actually were some important differences, so 25 you had similarity in terms of the finding, for example, of 167 1 white entitlement, male entitlement, male privilege, white 2 privilege. You had similarity, as well, in terms of this 3 link between a climate that's racially hostile and negative 4 academic outcomes for students of color, but the findings 5 were complicated in the sense that when you looked, for 6 example, at Asian Pacific Islander students in the law 7 school context, you found more instances, for example, 8 of those students talking about experiences with racial 9 stereotyping, with racial harassment. 10 Similarly, in terms of women and their experiences, 11 there was more discussion of sexual stereotyping and sexual 12 harassment in the law school context, in a very interesting 13 kind of way. You found that there was kind of a hyper white 14 and male kind of dominant structure in the law school. 15 Q What do you mean? 16 A Just simply not -- 17 Q Not that I don't know, by the way. 18 A And I was searching for gentle words. 19 Simply saying that the environment by virtue of 20 its history, its educational approaches, exacerbated many 21 of the findings of kind of white male privileging as regards 22 the -- there was something about the educational process 23 in that setting, there was something about the preparation 24 that in many respects by the reports of the people from the 25 focus groups that we talked to let males, and white males, 168 1 particularly, in an especially dominant and privileged 2 position, and in a situation and in a kind of status where 3 they felt empowered, if you will, to express that dominance 4 in terms of their interactions both in the classroom as well 5 as in the social spaces of the school of law. 6 Q In your view, is the number of black and Latino 7 students at the University of Michigan Law School adequate 8 to dispel the negative dynamics that you have talked about 9 today? 10 A In my view, no, and in the view of -- in the views of 11 the people in the focus groups across the board, by the way, 12 irrespective of race, no, absolutely not. 13 Q And in the case of this law school, law school 14 generally in all likelihood, but this law school in 15 particular, in your opinion, would the enrollment of greater 16 numbers of minority students help reduce the effects of 17 discrimination and bias and racism that you have talked 18 about today? 19 A I think so, yes, and I think that the history of the 20 school proves that point. 21 Q By the way, can you -- I want to turn your attention 22 to the Grace Carroll supplement now. 23 Is it possible to have a terrible experience in law 24 school and still go on to have a good experience as a lawyer 25 and do interesting things? 169 1 A I think absolutely so. I think that shows in the 2 Carroll study which I commissioned and directed. I mean, 3 I basically laid out the parameters for her conducting and 4 completing that research. What we saw is that these were 5 some incredible success stories, success stories of people 6 who would not have become attorneys but for affirmative 7 action, and who indeed talked about some negative aspects 8 of their experience at law school, at the University of 9 Michigan Law School, but who then went on to excel in their 10 professional careers, and who in keeping with findings from 11 studies such as Bok and Bowen, and keeping with findings 12 of studies such as the work of Rick Lempert, went on to 13 disproportionately be engaged in public interest related 14 work, if you will, work that was dedicated to uplifting 15 their communities and to addressing social problems. 16 Q I want to ask you some questions about the possibility 17 of bias in focus group research. Are you confident in the 18 results that you achieved in your study? 19 A Very much so. 20 Q What is it that makes you confident that the samples 21 weren't biased? 22 A The thing to understand and remember is that there was 23 a two-stage process in the selection of the students for the 24 focus groups, and so we used, first of all, a variety of 25 ways to recruit students, e-mails, campus signups, and 170 1 recruitment of students within classes, but this was to 2 recruit the pool of students from which we then assembled 3 our focus groups. 4 Now, our sample was a purposive sample, it wasn't 5 a random sample, but it was purposive, but there was some 6 random selection within that purposive selection, and 7 particularly what we were intent on doing is filling out 8 the sail, so we needed, for example, membership sufficient 9 for the white focus group or we needed the sample from 10 the -- to sample enough students to fill out the Asian 11 Pacific Islander focus group. 12 So I don't -- I'm very confident that the study 13 results weren't biased both for reasons of how we selected 14 focus group participants, but equally, if not even more so 15 important, was the fact that those focus groups were run 16 by experienced professionals who were quite competent 17 and effective in their performance of the role as group 18 facilitator and so did not allow for any circumstances 19 where you were receiving a biased response. 20 And then, of course, the final check is to simply 21 look at the transcripts and that's why it's so important to 22 produce verbatim transcripts. If there is bias, it shows in 23 the verbatim transcripts, and if one looks at those verbatim 24 transcripts one does not see any systematic bias. So I'm 25 very confident. 171 1 I might also add that there is not, beyond the 2 simple fact that many of our findings confirm research 3 findings from a variety of other data sources. 4 MS. MASSIE: Judge, actually, if we could take a 5 real five-minute break here, that would be great. 6 THE COURT: Of course. We will take five minutes. 7 And I don't know what Professor Allen's schedule is 8 like, but if you wanted to work into the evening so he can 9 get -- if he has got a plane or something I would be more 10 than happy to accommodate the schedule tonight. 11 THE WITNESS: Your pleasure, Your Honor. Whatever 12 your preference. 13 THE COURT: Oh, sure, there is a class that's hoping 14 you don't show tomorrow. 15 THE WITNESS: Thank you, sir. 16 THE COURT: But really, we will accommodate your 17 schedule. 18 THE WITNESS: Okay. Thank you. 19 (Recess taken at 3:54 p.m.) 20 (Back on the record at 4:12 p.m.) 21 THE COURT: You may be seated. Thank you. 22 MS. MASSIE: We conferred a bit over the break and 23 it sounds like I don't have that much more for Professor 24 Allen, and it sounds like it would be better for Counsel 25 if we then broke for the day. 172 1 THE COURT: That's fine. I just wanted to 2 accommodate everybody's schedule and I have no problems 3 with that. 4 Which reminds me, we're probably going to have to 5 break on Friday about no later than 4:00. 6 MS. MASSIE: Okay. 7 THE COURT: If that's okay with everybody. 8 MS. MASSIE: No problem. 9 BY MS. MASSIE: 10 Q We were talking about the recruitment process, the 11 process for getting participants in the focus groups before 12 the break, and you mentioned some e-mails that had been used 13 for recruitment? 14 A Yes. 15 Q I would like to ask you to turn to Tabs 176 and 177, 16 and for everybody that's trying to find where they are, 17 they are in the small volume, supplemental volume. 18 A Yes, I have them. 19 Q And if you could just confirm for us that those are 20 the e-mails that were used for recruitment purposes for the 21 study, I'm not going to dwell on them for a long time, but I 22 think they should be part of the record, so I would like to 23 move them into evidence. 24 A Okay. Just a second, please. Yes, these were used 25 for recruitment purposes. 173 1 Q I think you will find that the Berkley one is not 2 there. Was it substantially similar? 3 A I basically used -- the answer is yes, the format was 4 the same. 5 MS. MASSIE: Judge, I would like to move everything 6 in Tabs 176 and 177 into evidence. 177 consist of either 7 three or four separate e-mails and since they were used for 8 recruiting participants in the focus groups, I think it's 9 appropriate they be part of the record. 10 THE COURT: Any objection? 11 MR. KOLBO: We have no objection. 12 THE COURT: Received. 13 BY MS. MASSIE: 14 Q Did you place any restrictions on students who could 15 participate in the focus groups? 16 A Yes, I did. To avoid problems of bias, any students 17 who were listed in the action, Intervenors or who were on 18 the witness list, were excluded from participation in focus 19 groups. 20 Q And again, having read the transcripts, based on your 21 experience, based on the quantitative studies that have been 22 done up to this point and the other factors you mentioned, 23 you're confident that these are very solid results? 24 A Very much so. 25 Q I'm going to ask you now to summarize for us the 174 1 findings that you made here and their implications. 2 A Okay. 3 Q Let me start off by just asking you a very broad 4 question, just, have we made any progress on this front, 5 this front of race and higher education, the status of 6 minorities in higher education? 7 A I think we have made progress. I say, I'll use the 8 term "it's substantial" advisedly, because there is such a 9 long road and way yet to be traveled, but relative to where 10 we were, say, 40, 45 years ago, we have made substantial 11 progress, but the gains have been hard achieved and are in 12 some respects very delicately balanced, so still have a ways 13 to go, and the achievements that we have made are fragile in 14 some respects. 15 Q Fragile in what respect? 16 A In the respect, I'll use the example of the UC system. 17 The University of California system had made considerable 18 progress in diversification, that is, incorporating students 19 of different races and ethnicities up to 1995 when the 20 UC Regents passed the SP1, SP1 and SP2 restrictions on 21 affirmative action, followed by Prop 209. 22 Well, when those rules were implemented in the 23 very first year, what we saw was a 40 percent decline in 24 Chicano-Latino enrollment in the University of California 25 system and a 50 percent decline in the African American 175 1 enrollment. 2 And just to give you a sense of how stark those 3 numbers are, at the University of California-Los Angeles, 4 for instance, in the last year's entering class, out of 5 4,000 students, mind you, there were only 25 black males 6 who weren't scholarship athletes, so -- and this is 7 contrasted with pre '95 where those numbers were 8 approaching eight times that, so thus the notion of a 9 fragile gain. 10 Q Because the gain can be attacked? 11 A Precisely. And overnight, can be erased. 12 Q In your opinion, can we continue to move forward, 13 can we build on the gains that we have made? 14 A I think absolutely, yes. 15 Q How do we do that? 16 A I think we do it by staying the course, by continuing 17 to do the things that we had been doing to change the 18 pattern of participation in higher education, to increase 19 rates of participation from under-represented or 20 non-existent groups like Chicano-Latino students and 21 African American students and what have you. 22 Q And in your opinion, would continuing to take measures 23 that increase the representation of under-represented 24 minority groups improve the academic outcomes and 25 performance of members of those groups? 176 1 A I would say definitely, yes. 2 MS. MASSIE: Thank you. I have nothing else. 3 THE COURT: It was your agreement that we break 4 now, is that it, or do you want to continue? 5 Let's continue. It's up to you, really. Is it 6 okay with you, Mr. Payton? 7 MR. PAYTON: I'm the one that has to actually leave 8 here by 5:00, but I can continue. 9 THE COURT: If you would like to break now, you tell 10 me when you want to break. If you want to do it now, if you 11 want to do it -- whatever you would like to do, perfectly 12 fine. 13 MR. PAYTON: Let's go. 14 THE COURT: And I'm not sure how far you have to go 15 or whatever you have, but you can tell me and if I don't 16 hear from you before, right at 5:00 we will break, how's 17 that? 18 CROSS EXAMINATION 19 BY MR. PAYTON: 20 Q Good afternoon, Professor Allen. 21 A Good afternoon, Attorney Payton. 22 Q I want to ask you some questions that I intend to 23 be broader, and broader with respect to your expertise in 24 sociology and education and race, so you could look at sort 25 of where we are and what these issues are really all about 177 1 in context. 2 So let me ask you about the continuing salience 3 of race in our society today. What's the significance 4 of race today; is it less, more, the same, what is it? 5 A Race continues to be powerfully significant in 6 our society. At the same time, the ways in which it is 7 significant and salient have shifted or changed to some 8 degree, and I'll elaborate. 9 Race continues to matter for African Americans, 10 but at the same time, the sort of status of the African 11 American population has changed in some important ways, 12 so for example, you have a more sizable black middle class 13 than you did, say, 35, 40 years ago, but race continues to 14 matter in the lives of that black middle class in ways 15 large and small. 16 So the research shows us that race matters for 17 blacks of status in terms of encounters with police, police 18 profiling, for example, in terms of relative wealth compared 19 to whites who are also middle class, so I'm simply saying 20 that race still matters, but it's become complicated by 21 some of the changes in society. 22 Q Let me ask you about a term you used. You -- I'm 23 going to fumble it a little bit, but you talked about 24 micro aspects, micro assaults? 25 A Micro aggressions, yes. 178 1 Q Micro aggressions? 2 A Yes. 3 Q So racially motivated micro aggressions? 4 A Yes, sir, that's correct. 5 Q Give us the -- I'm going to quibble with the term, 6 micro, because it sounds like it belittles the impact of 7 race in those encounters. Are micro assaults insignificant? 8 A Not at all. And that's exactly the argument we make 9 in terms of the cumulative effect of micro aggression. 10 Now, the micro simply refers to the form of 11 the racial aggression, not its impact, and not how it 12 influences the person who is the target of it, and it's 13 to differentiate from major racial assaults, some of which 14 are physical, and certainly all of which are much more 15 overt. 16 So this is a covert form of racial aggression, but 17 when we use the term, micro aggression, we're simply trying 18 to make clear that these are in the form of, for example, 19 insults and throw-aside remarks that are seemingly 20 insignificant, but that in fact have a very powerful 21 cumulative effect, so thus the notion of micro. 22 Q I guess I want to say it another way. 23 Is it micro to -- let's just take the African 24 American. Is it micro to the African American who is 25 the recipient of the assault or is it micro to the white 179 1 observer of the incident? I don't understand the word, 2 micro. 3 A I'll try to be responsive, because I resonate with 4 the question. It's actually micro to both, but not the 5 same, to the same degree. 6 Essentially, what we are talking about is incidents 7 or events that are, as I said, seemingly insignificant or 8 simple or very small offenses in the relative scheme of 9 things. In other words, some observers have talked about 10 a new racism versus an old racism, and so the old racism 11 would be quite overt and be presented in the form of major 12 aggressions, either physical or certainly in terms of 13 utterances and slurs that could not be misinterpreted. 14 The new racism is a little more genteel and covert 15 and so rather than the most blatant utterances, using 16 language and interactions in a way that were slight or were 17 small insults, but at the end of the day the cumulative 18 effect of twenty slights or twenty micro aggressions equaled 19 to the effect and force of a major racial insult. 20 So it's more a sort of technical term used by social 21 scientists and actually borrowed from the work of a famous 22 black psychiatrist at Harvard, Chester Pierce, but certainly 23 did not want to leave the notion of micro as meaning just 24 small and meaningless, but rather, micro referring to the 25 size of the insult, if you will, but the racial intent is 180 1 very clear and it's very powerful in its negative influence. 2 Q Now, you spoke in your testimony of some number of 3 these incidents actually being the result of ignorance. 4 Is that -- are most of them the result of ignorance? 5 A I would say many. I don't know necessarily that most, 6 but a sizable percentage would be the result of ignorance. 7 I mean, comments in the class that the focus groups would 8 reveal, a young lady quit innocently, honestly saying, but 9 in a very negative -- having a negative, powerful impact on 10 the person of color hearing it, oh, you know, she had seen 11 information in the class that talked about a white gang, 12 and her response was, and I'm saying again, a very innocent 13 response, oh, I thought gangs were only with black people, 14 that they only had black gangs, and so for her, it's -- 15 you give her the benefit of the doubt and that it was an 16 innocent remark, but it is a micro aggression, a racial 17 insult that has a cumulative effect. 18 Q Actually, take that example. That example could have 19 a devastating effect on some of the minority students who 20 were present to hear it, isn't that right? 21 A This is very true. 22 Q It could undermine their own self-concept, their 23 willingness to participate? 24 A Particularly if it was at the end of a day of such 25 small comments and such small insults. 181 1 Let's take one that's less charged. The African 2 American male on campus who is presumed to be an athlete 3 before he opens his mouth, and even in cases where they 4 don't necessarily have the physique of an athlete, you 5 know, you maybe make allowances if I'm a guy who weighs 6 350 pounds, and maybe then it's not a certain jump, but 7 maybe, but for an African American male who time and time 8 again, the first comment is, what sport do you play, it's -- 9 and when you think about the person asking the question, 10 what that person is doing is operating out of a set of 11 normative assumptions that presume that African American 12 males would be athletes if they are on that campus, but for 13 the male who is hearing it, it doesn't obviously -- it 14 obviously doesn't have quite the force of a flat-out slur, 15 but over time you get tired of hearing it and over time it 16 begins to take its toll. 17 Q Now, in response to, I think, my first or second 18 question you talked about the increasing numbers of African 19 Americans that are middle class and how race may still 20 affect them. Let me talk about other economic groups, say 21 poor people, poor white people, poor African Americans, 22 living in similar circumstances. Does race nevertheless 23 affect those poor African Americans so that their lives 24 are different from the poor white men? 25 A Absolutely. 182 1 Q How is that? 2 A The poor whites are still entitled and privileged 3 just by virtue of whiteness. As a group of researchers who 4 talk about the wages of whiteness, literally, whiteness 5 brings its own privilege in this society, because you have 6 access that people of color don't have, you have certain 7 rights and privileges that people of color don't have, so 8 even though you may be in the same economic circumstance, 9 and even that is open to debate because research shows that 10 class doesn't mean the same thing across race, I mean, but 11 the point is that controlling for the assumption of class, 12 whiteness is a resource in a society that values whiteness, 13 that rewards whiteness, and that creates opportunities for 14 whiteness that are not available for those of color. 15 Q Let me go to the other end. Very high income white 16 Americans, very high income Hispanic Americans, very high 17 income African Americans, does race -- is there an income 18 level where, take an African American, they are insulated 19 from the effect of race in our society? 20 A Absolutely not. Obviously, income and economic 21 standing makes a difference, and especially in our society, 22 but for wealthy African Americans compared to wealthy 23 whites, the advantage still goes to wealthy whites. 24 Research such as Melvin Oliver and Shapiro, a study 25 of relative race wealth shows, for example, that African 183 1 Americans at the same income level as whites are still 2 more insecure economically; that is, their earnings are 3 the source of their economic standing more so than family 4 accumulated wealth, so they have less wealth than does 5 their white counterpart and wealth in the form of 6 accumulated assets like the home, like stocks and bonds, 7 and so on, and this is just a function of the historical 8 difference in terms of the two racial groups and blacks 9 being systematically undeveloped economically in this 10 society by virtue of 300 years of slavery, followed by 11 100 years of Jim Crow, and following on the heels of 12 that continuing discrimination. 13 Q Now, you mentioned that there are two basic, I would 14 say, institutions, parts of our society, where it's possible 15 to have a lot of interracial relationships, work, you said, 16 and higher education, college, and I take it the reason 17 those two are there is because we're segregated most of 18 the other places; is that right? 19 A Absolutely, absolutely true. 20 Q Okay. 21 A We're segregated residentially as a society. 22 Q So let's focus on college. When you talked about 23 what happens at predominantly white colleges or the feeder 24 schools that you did your focus groups with, and you talked 25 about the fact that in spite of the negatives almost all of 184 1 your minority responses still found sufficient positives 2 that they would go there again; is that right? 3 A Yes, absolutely. 4 Q Were you surprised by that? 5 A Not really, mainly because I have taught on these 6 campuses and I have in my own personal experience that kind 7 of an experience. I basically was raised in Kansas City, 8 Missouri in the time when the city was segregated and so all 9 of my experience through high school was in segregated high 10 schools, and I made a conscious decision that I needed to 11 spend some time in a predominantly white setting, and plus 12 the opportunities were there, so I went from that literally 13 all-black environment to what was essentially an all-white 14 environment in southern Wisconsin at a very small school 15 there and just the benefits that accrued to me educationally 16 and in terms of growing as a person, along with, of course, 17 the struggles and the strains and the stresses. 18 So from a personal point of view, I wasn't 19 surprised, nor was I surprised from the point of view of 20 prior research that I had done where, like a drum beat, and 21 consistently students of color, after talking about and 22 sharing their pain and the struggle, said that on balance it 23 was a valuable opportunity, it was an opportunity they had 24 to take advantage of, and, you know, given the opportunity, 25 they would accept it again, even with a knowledge and 185 1 understanding of the kinds of strains and challenges that 2 would be there. 3 Q I want to stand back just a little bit from that, 4 because I think you also said that it turned out to be a 5 benefit for all of the students at those colleges and 6 universities where there was that diversity, that everyone 7 benefitted. Did that help deal with some of the ignorance 8 that was the cause of some of the incidents? 9 A Absolutely so. And the benefit flowing from such 10 diversity is maximized to the extent that the numbers of 11 students of color on the campus are increased, because 12 that's a heavy burden. 13 That's another job for those students, by the way. 14 As one student talked about it at Harvard, she is an 15 ambassador, so in addition to her regular business of 16 school, she had to educate people about what it means to 17 be an African American and to answer questions and to be an 18 ambassador. 19 And so to the extent that that burden is shared more 20 broadly, that is, you have more students of color, then it 21 becomes beneficial for both groups. It's a problem if 22 it's a situation where you have tokenism and so you just 23 have a few students of color carrying that heavy burden of 24 befriending and educating their much larger white student 25 peer population. 186 1 Q I want you to stand back a little bit further and just 2 look at this as a sociologist or looking at our society. 3 How important is it to our society that we have that kind 4 of diversity and that kind of exchange and education take 5 place in our colleges and universities for the health of 6 our society? 7 A It's absolutely vital, it's life and death vital, 8 because we are a cultural and racially diverse society 9 living within and working and having exchanges within a 10 cultural and diverse and racially diverse global community. 11 So it's absolutely essential that our elite, that our 12 educated population, have those kinds of experiences and 13 that they learn about that wider reality so that they can 14 interact with it more effectively to the benefit of the 15 larger society. 16 Q I think we also heard from some of your testimony that 17 a number of the alumni from these colleges, from Michigan, 18 from Michigan Law School, go on to very important public 19 careers, some become leaders, some go back to the community, 20 civic activities, all sorts of involvement. 21 How important is it that our future leaders be 22 educated in an atmosphere in which there is this diverse 23 population, this interchange of ideas and experiences, and 24 this mechanism to try to deal with some of this ignorance? 25 A I think it's vitally important for the benefit of the 187 1 larger society, and it's striking that many of the larger 2 corporations have this understanding clearly in front of 3 them and know from their own experiences and the economic 4 world the value of a diverse work force and the value of 5 leadership that has training and experience with diverse 6 racial and ethnic communities. 7 MR. PAYTON: Thank you very much. 8 THE COURT: Thank you. Plaintiff, would you like 9 to wait until tomorrow? 10 MR. KOLBO: I would. I would, Your Honor. I could 11 be more efficient if I could, as well. 12 THE COURT: That's what we said we were going to do. 13 Professor, enjoy your evening in Detroit. I know 14 you're used to it, being from Michigan. 15 And we will see you all tomorrow at 9:00. Thanks. 16 We will stand adjourned. 17 COURT CLERK: All rise. 18 (Proceedings adjourned.) 19 -- --- -- 20 21 22 23 24 25 188 1 CERTIFICATE 2 I, JOAN L. MORGAN, Official Court Reporter 3 for the United States District Court for the Eastern 4 District of Michigan, appointed pursuant to the provisions 5 of Title 28, United States Code, Section 753, do hereby 6 certify that the foregoing proceedings were had in the 7 within entitled and number cause of the date hereinbefore 8 set forth; and I do further certify that the foregoing 9 transcript has been prepared by me or under my direction. 10 11 ____________________________ 12 JOAN L. MORGAN, CSR 13 Official Court Reporter 14 Detroit, Michigan 48226 15 16 Date: _______________________ 17 18 19 20 21 22 23 24 25